Texas court asserts protections for online reporter

Tuesday, July 21, 2009

Judges and journalists have more in common than they probably realize: They search for the truth every day, they’re never entirely sure who’s lying to them and they routinely publish writings that live forever in the public record.

They also share a significant problem, especially these days: They have a hard time defining who’s a journalist.

Once only a quandary posed by freelancers, defining “journalist” now is a quagmire featuring online contributors, bloggers and tweeters. While almost everyone agrees there’s a line somewhere between a New York Times foreign correspondent and a bathrobe-clad, Mountain Dew-swilling conspiracy theorist with his own Web page, few agree on the line’s location.

For judges, the issue is categorical — identifying those who qualify for legal protections traditionally reserved for reporters. For journalists, the issue is more personal — identifying those who have accepted the ethical and other responsibilities of newsgathering and thus have earned the right to claim what the law provides.

Without a bright line between journalists and non-journalists, judges across the country have tackled the issue on a case-by-case basis, developing tests and criteria that often solve only the problem before them. Together, the cases create a body of law that can be described charitably as evolving.

One of the most recent developments in this evolution comes from the Court of Appeals for the 2nd District of Texas, in Kaufman v. Islamic Society of Arlington. In Kaufman, the court faced the issue of whether a contributor to a Web site was entitled to an appellate right created for members of “the electronic or print media.”

On June 25, the court held that the contributor was entitled to that right. In doing so, the court adopted a multi-factor, subjective test that eschews a bright line for a wavy one.

Joe Kaufman is a full-time investigative reporter who has written for national publications since 1995. Focusing on terrorism issues, he was written most regularly for Front Page Magazine, an online magazine published by the David Horowitz Freedom Center that has approximately 500,000 readers each month. Horowitz is a nationally recognized author and political commentator, and Kaufman likewise has spoken at various conferences and universities and appeared on several cable-television news shows.

In September 2007, Kaufman wrote an article titled “Fanatic Muslim Family Day” for Front Page Magazine. In it, Kaufman reported that the Islamic Circle of North America Dallas, along with other Muslim groups, was sponsoring a Muslim Family Day at an amusement park in Arlington, Texas. Kaufman also reported that the international Islamic Circle of North America had supported and financed terrorism and he urged readers to join him in protesting against the group outside the park on the day of the event.

Several Dallas-based Islamic groups that participated in Muslim Family Day sued Kaufman, claiming his article unfairly and inaccurately linked them to ICNA. Kaufman moved for summary judgment, arguing his article did not state or imply that the plaintiffs had participated in ICNA’s activities. The court, finding the evidence conflicting, denied Kaufman’s motion and ordered the case to trial.

In most cases, Kaufman would not have been allowed to appeal until the case concluded. Texas, however, allows “a member of the electronic or print media” to immediately appeal a denial of summary judgment, in order the protect news-media defendants from meritless litigation that is nevertheless expensive and time-consuming. Claiming this right, Kaufman appealed to the Second District Court of Appeals.

The Islamic groups challenged Kaufman’s status as a member of the news media. According to the groups, Kaufman was not a member because he was using Front Page Magazine as his own blog and because he had not demonstrated training as a traditional journalist. Kaufman, on the other hand, offered extensive evidence of his writings and the independence of Front Page Magazine.

Interestingly, the issue is not one decided under the First Amendment. If it were, all authors would qualify, as all enjoy the same freedom of speech. The right to an immediate appeal, which provides news media defendants a right above and beyond the First Amendment, instead is a question of statutory construction.

Recognizing that the issue had not been raised before in Texas, the court looked at the evidence through the lenses of precedent in other jurisdictions. These jurisdictions, the court found, have extended First Amendment and other protections to online publications and have treated the Internet in many instances as “a type of nontraditional electronic media.” Moreover, the court found, no precedent supported the Islamic groups’ argument that an Internet author never is a member of the media.

The court therefore concluded that an online author could be a member of the news media under Texas law. The court, however, also held that not everyone who communicates through the Internet is entitled to the statute’s immediate appeal.

For the purposes of the appeal statute, the court said an online author’s status as a member of the media depends on several factors, including:

  •  The character and text of the communication.
  •  The editorial processes of the Web site or online publication.
  •  The volume of the communication’s dissemination.
  •  The author’s “extrinsic notoriety unconnected to the communication.”
  •  The author’s “compensation for or professional relationship to making the communication.”
  •  “Other relevant circumstances as the facts may dictate.”

    Applying this test, the court, citing Kaufman’s appearances on television, his “substantial” readership and his journalistic experience, easily concluded that Kaufman qualified as a member of the news media. The court then turned to the merits of Kaufman’s appeal and held that the Islamic groups — which were not named in the article — could not claim the article defamed them. The court therefore reversed the trial judge’s order and directed the judge to enter summary judgment for Kaufman.

    Given all of the factors identified by the appellate court, it is difficult to know how inclusive the test will be. The test’s consideration of a Web site’s editorial processes and readership and an author’s notoriety and compensation, however, suggest the test might be difficult for many bloggers and tweeters to meet.

    The multi-factor test also suggests that neither judges nor journalists are likely to develop an acceptable bright-line definition of “journalist” anytime soon. As always, however, their work on the issue will be interesting — and important — to follow.

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