IT S NONE OF YOUR (PRIMARY) BUSINESS: DETERMINING WHEN AN INTERNET SPEAKER IS A MEMBER OF THE ELECTRONIC MEDIA UNDER SECTION 51.

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1 IT S NONE OF YOUR (PRIMARY) BUSINESS: DETERMINING WHEN AN INTERNET SPEAKER IS A MEMBER OF THE ELECTRONIC MEDIA UNDER SECTION (A)(6) I. INTRODUCTION... 1 II. TRACING THE APPLICATION OF SECTION (A)(6)... 2 A. Background... 2 B. Service Employees International Union v. Professional Janitorial Service and the Primary Business Test... 3 C. Kaufman v. Islamic Society of Arlington Factual and Procedural Background Comparison to SEIU... 6 D. Hotze v. Miller Factual and Procedural Background Comparison to SEIU... 7 III. PROPOSED SOLUTION TO THE CONUNDRUM... 7 IV. CONCLUSION... 9 I. INTRODUCTION The Texas courts of appeals disagree on the proper test to apply to determine the circumstances under which an organization s online presence qualifies it for the protections afforded to media defendants under section (a)(6) of the Texas Civil Practices and Remedies Code. That section permits member[s] of the electronic media to appeal from interlocutory orders denying motions for summary judgment. 1 In a recent case, Service Employees International Union v. Professional Janitorial Service, the First Court of Appeals laid down a test the so-called primary business test intended to straighten out this disagreement. 2 With that test, the court drew a delicate line between publishers whose primary business is reporting the news and those whose primary business is something else. 3 According to the court, the former qualify as members of the electronic media and are therefore protected by the interlocutory appeal statute; the latter are not. 4 Because the scope of section (a)(6) s print or electronic media exception is uncertain and difficult to define, review by the Texas Supreme 1. TEX. CIV. PRAC. & REM. CODE ANN (a)(6) (West 2008 & Supp. 2014). 2. Serv. Emps. Int l Union Local 5 v. Prof l Janitorial Serv. of Hous., Inc., 415 S.W.3d 387, 398 (Tex. App. Houston [1st Dist.] Sept. 17, 2013, pet. filed). 3. Id. 4. Id. at

2 2 SOUTH TEXAS LAW REVIEW [Fall 2014 Court is needed to clarify which of the Texas courts conflicting interpretations is the correct rule to apply. This Note will argue that the SEIU s primary business test, although imperfect, is the correct rule to apply because it limits the scope of the exception and is a more workable standard for ensuring principled application to future cases. A. Background II. TRACING THE APPLICATION OF SECTION (A)(6) It is well settled that an order denying a motion for summary judgment is not a final judgment. 5 Such an order is interlocutory, which, as a general rule, is not appealable. 6 The rationale for the prohibition against interlocutory appeals is efficiency: prohibiting appeals from nonfinal judgments reduces unnecessary delay, which in turn increases efficiency. 7 Section (a)(6), however, carves out one of several narrow exceptions to the general rule. 8 It provides that a party may appeal an interlocutory order that: denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter Because statutes providing for interlocutory appeals are a narrow exception to the general rule that interlocutory orders are not immediately appealable, the Texas Supreme Court has held that they must be strictly applied. 10 The Texas legislature s stated purpose in enacting this exception to the final judgment rule was twofold: first, section (a)(6) was designed as a prophylactic measure to deter meritless suits brought against media defendants; second, the interlocutory appeals procedure minimizes the cost of conducting a full-length trial when claims brought against members of 5. Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 627 (Tex. App. Fort Worth 2007, pet. denied). 6. Id. at See id. at See id.; TEX. CIV. PRAC. & REM. CODE ANN (a)(6) (West 2008 & Supp. 2014). 9. TEX. CIV. PRAC. & REM. CODE ANN (a)(6) (emphasis added); see also Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App. Fort Worth 2001, pet. denied). 10. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011).

3 2014] IT S NONE OF YOUR (PRIMARY) BUSINESS 3 the media implicate constitutionally protected speech rights. 11 But because the legislature failed to define the open-ended phrase member of the electronic or print media, the Texas judiciary has struggled to demarcate its outer limits. To aid in the determination of whether a media defendant satisfies this nebulous standard, the courts have turned to conventional rules of statutory interpretation; in the absence of a contrary intent, they consider the plain and common meaning of the words used. 12 Under that approach, courts have had little difficulty delineating the contours of the print or electronic media exception when applied to publications by members of the traditional media e.g., radio, television, newspapers, and magazines. 13 The same cannot be said, however, concerning publications made online; in that context, the scope of the print or electronic media exception is anything but clear. Indeed, only three Texas courts of appeals have had an opportunity to address the question of whether a defendant sued for defamation for publishing content on the Internet was a member of the electronic media within the meaning of section (a)(6). Given the textual sweep of that phrase and in the absence of a clear statutory definition it is hardly surprising that each court has addressed the question differently. B. Service Employees International Union v. Professional Janitorial Service and the Primary Business Test In Service Employees International Union v. Professional Janitorial Service, a janitorial services company brought a defamation action against a labor union, alleging that the union published defamatory statements about the company on the union s website and in flyers, s, newsletters, and handbills. 14 The trial court denied the union s motion for summary 11. See Main v. Royall, 348 S.W.3d 381, (Tex. App. Dallas 2011, no pet.) ( We construe the statute understanding that the legislature s purpose in enacting section (a)(6) was to provide members of the media with a mechanism to obtain immediate appellate review when a trial court denies their motion for summary judgment.... ). 12. City of Rockwall v. Hughes, 246 S.W.3d 621, (Tex. 2008). 13. E.g., Rogers v. Cassidy, 946 S.W.2d 439, 443 (Tex. App. Corpus Christi 1997, no pet.) (stating that radio broadcasts, television stations, and newspapers are among the types of media entities encompassing section (a)(6)). By negative inference, then, private individuals who publish defamatory statements even statements about public figures or matters of public concern do not necessarily meet the member of the electronic or print media standard set forth in section (a)(6). Cf. Quebe v. Pope, 201 S.W.3d 166, 169 n.3 (Tex. App. Houston [14th Dist.] 2006, pet. denied) (suggesting that section should not be interpreted to authorize an interlocutory appeal irrespective of the defendant s status as a member of the media in order to prevent all denials of a motion for summary judgment from being immediately appealable). 14. Serv. Emps. Int l Union Local 5 v. Prof l Janitorial Serv. of Hous., Inc., 415 S.W.3d 387, (Tex. App. Houston [1st Dist.] Sept. 17, 2013, pet. filed).

4 4 SOUTH TEXAS LAW REVIEW [Fall 2014 judgment and the union filed an interlocutory appeal pursuant to section (a)(6), contending that it was a member of the electronic or print media. 15 The First Court of Appeals concluded that it lacked jurisdiction to consider the appeal because the union could not show that it was a member of the media within the meaning of section (a)(6); accordingly, the court dismissed the case. 16 The court reasoned that although the record establishes that the union publishes information concerning political and social issues to the public through its websites, the record does not establish that the union s primary business is reporting the news. 17 Under the primary business test articulated by the SEIU court, a person who communicates online qualifies as a member of the electronic media when the person s primary business is reporting the news. 18 The court freely admitted that it may be difficult to precisely discern what a person or entity s primary business is. 19 Nevertheless, the court ruled that the primary business analysis is based on an evaluation of the following criteria: (1) the goods and services offered by the Internet author and the sources of the Internet author s revenue, (2) the Internet author s journalistic background, experience, and independence, (3) the extent to which the Internet author has an established presence or reputation in traditional media, (4) the character and content of the Internet author s communications, and the range of reporting (examining the breadth of the website s coverage), (5) the editorial process, inquiring whether the website s particular communications were chosen for their inherent newsworthiness or other factors, and (6) the size, nature, and diversity of the readership. 20 No one fact is dispositive, the court noted; instead, the analysis should center on the totality of the circumstances. 21 Applying these factors, the court concluded that the union did not qualify as a member of the electronic media. 22 Specifically, the fact that the union published articles and press releases on its website that dr[e]w more than 4000 daily readers did not justify the conclusion that the union is 15. Id. at Id. at Id. at 402 (emphasis added). 18. Id. at Id. 20. Id. at Id. 22. Id. at

5 2014] IT S NONE OF YOUR (PRIMARY) BUSINESS 5 primarily in the business of news reporting. 23 The court also found that the union s communications division which included several editors who oversaw individual staff writers was insufficient to entitle it to an interlocutory appeal under section (a)(6), notwithstanding that some of the union s writers had journalism backgrounds. 24 Rather, the court offered the following grounds for drawing the subtle distinctions that it did: first, the union failed to generate revenue through its Internet publications; 25 second, the union strive[d] to generate news rather than report the news ; 26 third, the union sought to sway public opinion through its websites ; 27 and fourth, the union lacked staffers with comprehensive journalistic experience sufficient to control or be substantially involved in the editorial process. 28 Unhappy with this outcome, the union has petitioned the Texas Supreme Court for review; the petition is pending. C. Kaufman v. Islamic Society of Arlington The result in SEIU might well have been different had that court embraced the approach taken by the two other courts of appeals that have considered the print or media exception as it relates to online publications. In Kaufman v. Islamic Society of Arlington, for example, the Fort Worth Court of Appeals formulated a different, broader test for determining when an Internet speaker is a member of the electronic media for purposes of section (a)(6). 29 Contrary to the rule in SEIU, this test does not demand that the publication be the speaker s primary business Factual and Procedural Background Kaufman involved a claim brought against a full-time professional journalist who allegedly defamed the plaintiff by posting articles about the plaintiff on the journalist s online magazine, which had an estimated 500,000 monthly readers. 31 The court held that the journalist was a media defendant under section (a)(6) and, therefore, his online statements were entitled to the same First Amendment protections as statements made by more traditional print media. 32 In exploring the extent to which Internet 23. Id. at Id. 25. Id. at Id. 27. Id. 28. Id. at Kaufman v. Islamic Soc y of Arlington, 291 S.W.3d 130, 142 (Tex. App. Fort Worth 2009, pet. denied). 30. Id. 31. Id. at 135, Id. at 140.

6 6 SOUTH TEXAS LAW REVIEW [Fall 2014 authors may also be members of the electronic media, the Kaufman court adopted a multi-factor test, applying section (a)(6) when: [a] person s communication, under circumstances relating to the character and text of the communication itself, its editorial process, its volume of dissemination, the communicator s extrinsic notoriety unconnected to the communication, the communicator s compensation for or professional relationship to making the communication, and other relevant circumstances as the facts may dictate, would otherwise qualify as a communication covered by [section (a)(6)] through more traditional electronic or print media Comparison to SEIU Had the SEIU court applied this multi-factor test, it is likely that the union would have been eligible for an interlocutory appeal as a member of the electronic media under the requirements of section (a)(6). For example, the character and text of [the union s] communication[s] closely parallels the character and text of publications by traditional media outlets. Moreover, the union s daily readership of 4,000 is comparable to the volume of dissemination of small blogs and local newspapers. To be sure, the factor of the communicator s compensation counsels against interlocutory jurisdiction, since the union received no compensation from its readers. But like more traditional members of the media, the union has a professional relationship with regard to its communications in that the union s communications division employees receive compensation for writings appearing on its website. Under the Kaufman approach, therefore, the union s media defendant argument under section (a)(6) would likely have succeeded, whereas in SEIU it failed. D. Hotze v. Miller Unlike the courts in SEIU and Kaufman, the Tyler Court of Appeals in Hotze v. Miller shied away from creating its own test. The Hotze court addressed the similar issue of whether a doctor qualified for media defendant status for communications he made in a radio broadcast, in newspapers, and on his website. 34 Like the court in Kaufman, the Hotze court held that these facts were sufficient to show that the doctor was a media defendant under section (a)(6) Id. at Hotze v. Miller, 361 S.W.3d 707, 711 (Tex. App. Tyler 2012, pet. denied). 35. Id. at 712.

7 2014] IT S NONE OF YOUR (PRIMARY) BUSINESS 7 1. Factual and Procedural Background In Hotze, the court noted that the doctor moonlighted as a political journalist for nearly three decades. 36 But contrary to the SEIU s primary business requirements, the Hotze court found it unnecessary to examine the proportion of the doctor s income derived from practicing medicine as distinguished from the income he earned from literary activities. 37 Nor did the court take into account the proportion of the doctor s time spent on nonpublishing business a factor also required by the primary business test. 38 In spite of that, because the physician wrote editorials that were published in a weekly newspaper and hosted a radio broadcast, the court concluded that the physician was a media defendant who was entitled to an interlocutory appeal from a denial of a motion for summary judgment under section (a)(6) Comparison to SEIU While the Kaufman opinion preceded Hotze, it is notable that the latter court eschewed Kaufman s multi-factor test. 40 Hotze never analyzed the volume of the physician s readership, his editing process, or the revenue that his communications generated. 41 Some of the publications at issue in Hotze were not distributed through traditional media entities, but instead were self-published on the author s own Internet site. 42 The union in the SEIU case, similar to the physician in Hotze, also self-published many articles over many years. Thus, under the approaches used in either Hotze or Kaufman, the union s argument as a section (a)(6) media defendant would likely have been successful. III. PROPOSED SOLUTION TO THE CONUNDRUM Given the inconsistent interpretations of section (a)(6) in the First, Second, and Twelfth Courts of Appeals, courts in other Texas jurisdictions will surely grapple with selecting the proper test to govern future cases, at least until the Texas Supreme Court definitively rules on the matter. The uncertainty occasioned by the three different tests is exacerbated by the fact that each appears more vague, subjective, and difficult to apply than the next. Thus, a clearer rule of law is required. In the 36. Id. 37. See id. 38. See id. 39. Id. 40. Id. 41. Id. 42. Id. at 711.

8 8 SOUTH TEXAS LAW REVIEW [Fall 2014 absence of such clarity, emboldened defendants will seek interlocutory relief, confident that their appeals will be allowed even though they may ultimately be rejected. The litigation process will become more-drawn out as a consequence. The SEIU s primary business test is the more appropriate, if imperfect, test for the Texas Supreme Court to adopt. First, the primary business test is the narrower and more sharply focused of the three rules interpreting section (a)(6), and so it better approximates the Texas Supreme Court s instructions to strictly apply the interlocutory appeals statutes. 43 Plainly, not all Internet users can properly be considered members of the media under section (a)(6), lest the exception swallow the rule. 44 And merely because a particular case raises free speech concerns is not enough to confer interlocutory appellate jurisdiction, unless the litigant can satisfy the express requirements of section (a)(6). 45 A contrary rule ignores the central provision of section (a)(6) namely, that publications must be made by a member of the electronic or print media. 46 Indeed, in Quebe v. Pope, the Fourteenth Court of Appeals rejected the argument that an interlocutory appeal should lie regardless of whether the communication at issue... was published by the media. 47 Otherwise, any time a person alleged truth as a defense to a libel claim, the denial of that person s motion for summary judgment would arguably be subject to interlocutory appeal. 48 This, the court stated, is not the intent of section (a)(6). 49 Historical context adds further support to this position. The legislature added subsection (a)(6) to Texas s interlocutory appeal statute in 1993, at a time in which the Internet was only beginning to enjoy widespread public use. 50 Accordingly, the legislature could scarcely have predicted that hosts of Internet websites would be considered members of the electronic media authorized to appeal from even interlocutory orders. In fact, the legislative debate leading up to section (a)(6) s enactment makes clear the entities that the statute was intended to benefit: [T]he proponents of subsection (a)(6) offered the amendment as a means to permit a newspaper, 43. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). 44. See Quebe v. Pope, 201 S.W.3d 166, 168 (Tex. App. Houston [14th Dist.] 2006, pet. denied). 45. See id. at TEX. CIV. PRAC. & REM. CODE ANN (a)(6) (West 2008 & Supp. 2014). 47. Quebe, 201 S.W.3d at 169 n Id. 49. Id. 50. Serv. Emps. Int l Union Local 5 v. Prof l Janitorial Serv. of Houston, Inc., 415 S.W.3d 387, 397 (Tex. App. Houston [1st Dist.] Sept. 17, 2013, pet. filed).

9 2014] IT S NONE OF YOUR (PRIMARY) BUSINESS 9 radio station or television station that was sued for libel to make an immediate appeal of a judge s refusal to grant a summary judgment. 51 IV. CONCLUSION While it may be difficult to specifically discern the line between members of the electronic media and those who merely post Internet comments, the First Court of Appeals correctly drew it in the SEIU case. But because the courts of appeals remain split on this issue, the Supreme Court of Texas should grant the union s petition for review in SEIU, affirm the SEIU s primary business test, and thereby finally clarify the rule for determining whether an Internet publisher is a member of the electronic media. Drew del Junco 51. Id. (emphasis added) (internal quotation marks omitted).