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Who Counts as a Member of the Media?

07/25/2009 12:55:20 pm by Dan Krohn

	In a recent case the Second District Texas Court of Appeals in Ft. Worth considered questions as to the degree a writer whose stories and editorial pieces are published on the Internet was entitled to a specific right given to journalists under Texas law. (The specific Texas statute in question as applied in this case addresses a rather narrow specific procedural issue (the right to an interlocutory appeal from a trial court ruling denying a motion for summary judgment, and it is doubtful that the readers of this blog entry would be interested in that procedural aspect of the case. Suffice it to say that the ability to proceed with such an appeal could save a party a great deal of time and money.) However, two portions of the court's opinion should be of interest to many readers. The writer involved, a chap named Joe Kaufman, was sued for defamation for a story he had written which was published in an online Internet magazine discussing an event called Muslim Family Day to be held at Six Flags over Texas. Several Muslim organizations filed suit claiming defamation. The portions of the court opinion that interest this blogger do not deal with the defamation issues, and this blog entry does not address the defamation aspects of the case. To this blogger the interesting issues are those which address the issue of whether or not Kaufman was entitled to exercise this procedure which Texas law gives to members of "the electronic or print media". The plaintiffs claimed that Kaufman was not covered by this statute because the article/opinion piece at issue was published solely on the Internet, and that the Internet was not the kind of media which the legislature had in mind. They argued that "electronic or print media" was meant to include radio, television, and print publications but not the Internet. Fortunately, the court had little trouble in finding that the Internet was included within the "electronic or print media" umbrella. But then things get trickier, and in this blogger's opinion much more dangerous, as the court proceeded to analyze the story by Kaufman, the online magazine in which it was published, and Kaufman's "notoriety" apart from the opinion piece at issue. In support of its conclusion that Kaufman was entitled to an interlocutory appeal as a part of the media, the court noted that the online magazine in question has 500,000 readers. One wonders how many readers it takes for a particular website to qualify for this statutory protection. The court opinion tells us only that 500,000 is good. The court also noted that the piece at issue addressed a topic of general interest - terrorism. One wonders just what topics would qualify as being of general interest, and which would be of too narrow an interest to help the writer. This blogger lives in Houston, Texas. It would be hard to argue that the Minnesota Twins baseball team is a topic of general interest in Houston (though it is surely a matter of great interest to some Houstonians). How does one measure general interest, and how should a court decide whether or not a topic qualifies. Except to give Kaufman a boost in this case because he addressed an aspect of terrorism, the court's opinion contains few clues. The court moved on to an analysis which this blogger finds truly discomforting. The degree of Kaufman's notoriety without regard to the writing at issue was analyzed as a factor in determining whether or not he was entitled to this particular procedural benefit aimed at protecting members of the media. The court noted that Kaufman had a history which included numerous television appearances hundreds of published articles, and that Kaufman had other substantial journalism training and experience. Note that the court specifically stated:" We do not hold, therefore, that everyone who communicates on the Internet would qualify as a member of the electronic media under section 51.04(a)(6)." As written, the opinion leaves its reader wondering whether, for example, most, if any, blogs would qualify for that procedural benefit. Consider this purely hypothetical example. Dr. Snidley Birdbrain, who holds a PhD in ornithology, maintains a blog dedicated to swallows of the Gulf Coast area, which is extremely popular and well read by area birdwatchers. In one of his blog posts, he attacks the intelligence, credentials, and observational capabilities of one Seymour Birdies, who claims to have identified a previously unknown species of blue-throated swallow near Beaumont, Texas. Birdies then sues Birdbrain for defamation. Given the Kaufman case, it would seem that Birdbrain is out of luck (should he file an interlocutory appeal of a summary judgment denial) for a number of reasons. Birdbrain's blog has far fewer than 500,000 readers. Courts would probably hold that Birdbrain's posting on the blue-throated swallow was not a subject, like terrorism, of general public interest. Indeed, outside the world of dedicated birdwatchers and ornithologists it's hard to imagine many who would have any interest at all. Our poor Dr. Birdbrain, while highly educated, has no specific training in journalism. Other than his blog, his experience as a journalist is limited to two articles published in scientific journals of limited circulation. And while our Dr. Birdbrain has lectured to a few birdwatching clubs and been a guest lecturer to a few college classes, he has never appeared on television. Without regard to whether or not Birdbrain's blog post was defamatory, the question still arises as to whether or not he should be entitled to this particular statutory right of appeal which was designed to help members of the media. Many experts have opined that blogs have become a major news and opinion source (and note that Kaufman's piece was as much an opinion piece as news story). Indeed, there are communications experts who have opined that blogs are replacing much of the traditional news media. And how about e-newsletters and listservs. This blogger subscribes to several such email services which address narrow legal subjects that would certainly not be of general public interest and which are sent to many but surely not 500,000. It is time for the Texas courts and, if necessary, the Texas legislature to wake up to the new online world. This blogger is not arguing for legalizing defamation - on the Internet or otherwise. This blogger is advocating that the courts recognize that the news media is not what it used to be. People expect to get the information they want from the Internet, and the Internet to which they go to find such information extends far beyond Web based magazines with large readerships. The very nature of news media is rapidly changing. Though law will lag behind, it must strive to keep up as best it can.

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