NO IN THE SUPREME COURT OF TEXAS

Transcription

1 NO IN THE SUPREME COURT OF TEXAS FILED /23/2014 7:05:46 PM tex SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK Service Employees International Union Local 5, Dan Schlademan, and Susan Strubbe, Petitioners, v. Professional Janitorial Service of Houston, Inc., Respondent. On Review from the First Court of Appeals Houston, Texas Amicus Curiae Brief in Support of Petitioners by SCOTUSblog Delaware, Inc. (SCOTUSblog), Don Cruse (Supreme Court of Texas Blog), Howard J. Bashman (How Appealing), Glenn H. Reynolds (Instapundit), and Steven F. Hayward, John H. Hinderaker, and Scott W. Johnson (Power Line) Eugene Volokh (Admitted Pro Hac Vice) UCLA School of Law First Amendment Amicus Brief Clinic 405 Hilgard Ave. Los Angeles, CA (310) J. Campbell Barker State Bar No Yetter Coleman LLP 909 Fannin Suite 3600 Houston, TX (713) Counsel for Amici Curiae

2 IDENTITY OF PARTIES AND COUNSEL Petitioners Brief on the Merits correctly identifies the parties and their counsel. The amici curiae on whose behalf this brief is filed are SCOTUSblog Delaware, Inc., Don Cruse, Howard J. Bashman, Glenn H. Reynolds, Steven F. Hayward, John H. Hinderaker, and Scott W. Johnson. The counsel for these amici curiae are: Eugene Volokh (Admitted Pro Hac Vice) UCLA School of Law First Amendment Amicus Brief Clinic 405 Hilgard Ave. Los Angeles, CA (310) J. Campbell Barker State Bar No Yetter Coleman LLP 909 Fannin, Suite 3600 Houston, TX (713) Counsel would like to thank UCLA School of Law students Nathaniel Barrett, Mairead Dolan, Garry Padrta, and Scott Sia for their assistance on this brief. i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... iii INTEREST OF AMICI CURIAE... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 5 I. This Court Should Read Media in (a)(6) as Following the Definition of Medium in (3)... 5 A. Applying the (3) definition is consistent with the Legislature s judgment about what electronic media means... 5 B. The proposed reading of media will serve the policy animating (a)(6) II. The Multi-Factor Primary Business Test Adopted by the Court Below Is Too Ill-Defined To Be Practically Usable, and Considers Factors That Ought Not Be Used III. The Alternative Test Set Forth by the Second Court of Appeals Is Likewise Inferior to the (3) Test CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES Cases Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex. 1975)... 5 Brown v. Darden, 50 S.W.2d 261 (Tex. 1932)... 5 Fitzmaurice v. Jones, 417 S.W.3d 627 (Tex. App. Houston [14th Dist.] 2013)... 9 Grant v. Wood, 916 S.W.2d 42 (Tex. App. Houston [1st Dist.] 1995, no writ) Hotze v. Miller, 361 S.W.3d 707 (Tex. App. Tyler 2012, pet. denied)... 20, 21 Kaufman v. Islamic Soc y of Arlington, 291 S.W.3d 130 (Tex. App. Fort Worth 2009, pet. denied)... 8, 10, 19 Mason v. Glickman, 408 S.W.3d 691 (Tex. App. Dallas 2013)... 9 Melendez v. Houston Indep. Sch. Dist., 418 S.W.3d 701 (Tex. App. Houston [14th Dist.] 2013)... 9 O Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006)... 6, 7, 8, 20 Tex. Bank & Trust Co. v. Austin, 280 S.W. 161 (Tex. 1926)... 5 Too Much Media, LLC v. Hale, 206 N.J. 209 (2011)... 7, 8 iii

5 Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App. Texarkana 2013, pet. filed)... 9 Statutes 2 U.S.C. 431(9)(B)(i) Tex. Civ. Prac. & Rem. Code (3).... passim Tex. Civ. Prac. & Rem. Code (a)(6)... passim Articles About Us, The Crisis, 13 Federal Election Commission, Advisory Opinion (Nov. 18, 2005), 2005 WL , 8 Karla Kelling Sclater, The Labor and Radical Press 1820 the Present, Labor Press Project, edu/labhist/laborpress/kelling.shtml (last visited Oct. 23, 2013) Katharine Q. Seelye, Blogger Is Surprised by Uproar Over Obama Story, but Not Bitter, N.Y. Times (Apr. 14, 2008), 11 Martin M. Perline, The Trade Union Press: An Historical Analysis, 10 Labor Hist. 107 (1969), available at / #.UoETEnCsh8E iv

6 Oliver Burkeman, Bloggers Catch What Washington Post Missed, Guardian (Dec. 20, 2002, 7:37 PM), 21/internetnews.usnews Twitter 1, CNN 0, Economist (Jun. 18, 2009), economist.com/node/ v

7 INTEREST OF AMICI CURIAE SCOTUSblog Delaware, Inc., operates SCOTUSblog, a Web site devoted to comprehensive coverage of the Supreme Court of the United States. In 2013, SCOTUSblog won the Peabody Award, the National Press Club Award, and the Sigma Delta Chi (Society of Professional Journalists) Award. The business of SCOTUSblog Delaware, Inc., is limited to publishing the SCOTUSblog site. Nonetheless, many of the individual authors who write for SCOTUSblog are lawyers, who spend most of their time practicing law; this was even more so earlier in SCOTUSblog s history. Don Cruse is a lawyer who authors the Supreme Court of Texas Blog, providing opinion summaries, practice notes, and coverage of Texas judicial elections. The blog also tracks judicial voting patterns and the status of each petition filed in the Court. Howard J. Bashman is a lawyer who authors How Appealing, a prominent blog devoted to appellate litigation. Glenn H. Reynolds is a law professor who authors Instapundit, a popular legal and political news blog founded in

8 John Hinderaker, Scott Johnson, and Steven Hayward are two lawyers and a professor who are proprietors and three of the four coauthors of Power Line, a Web site that has published daily news and commentary since Power Line has broken nationally significant news stories, such as the fact that the documents featured in a 2004 Dan Rather 60 Minutes story about then-president Bush were forgeries. The individual amici bloggers, and many of the authors who write for SCOTUSblog, share a common interest as distributors of information and opinion whose primary line of business is something other than such distribution. Amici s blogs are read throughout the country, including in Texas. The Supreme Court of Texas Blog is focused on Texas, and the others sometimes comment on events or cases in Texas. As a result, amici might in the future be sued in Texas courts, so their rights are cast in doubt by the Texas courts varied approaches to determining who is considered a member of the electronic media. And beyond this, amici believe that their perspectives as publishers who are not primarily in the business of publishing can be helpful in analyzing the rights of other such publishers, including ones that operate primarily in Texas. No fees were paid in connection with the preparation of this brief. 2

9 SUMMARY OF THE ARGUMENT The court of appeals defined member of the electronic or print media for purposes of (a)(6) narrowly, to cover only people or organizations whose primary business is reporting the news. This definition would exclude a broad range of publications, past and present, including advocacy-group and religious-group magazines such as the NRA s American Rifleman, the Sierra Club s Sierra, the Knights of Columbus Columbia, the United Methodist Church s Newscope, the Roman Catholic Diocese of Oakland s The Catholic Voice, and the Southern Christian Leadership Conference s SCLC Magazine and including blogs such as those published by amici. The Texas Legislature, however, has already considered what should qualify as a medium for purposes of statutorily provided speech protection. The journalist-privilege statute, Tex. Civ. Prac. & Rem. Code , makes clear that news medium is a broad term, encompassing, among other things, a newspaper, magazine or periodical,... that disseminates news or information to the public by any means, including... electronic; and... other means, known or unknown, that are accessible to the public. Tex. Civ. Prac. & Rem. Code (3). The 3

10 standalone term medium, unqualified by news, would therefore mean newspapers, magazines, or periodicals that disseminate news, opinion, and other information to the public by any means. Private letters and s, and other communications between neighbors, employers, business partners, and others which make up the majority of reported Texas defamation decisions would not qualify as media speech. But, as cases from other jurisdictions interpreting similar statutes hold, publications on regularly updated Web sites aimed at the general public, such as the SEIU site in this case, qualify. Applying the (3) definition in (a)(6) would therefore be consistent with the Legislature s understanding of the meaning of medium. And applying this definition would serve the policy objectives behind (a)(6). This exception to the ban on interlocutory appeals was meant to protect free-speech values, by giving media defendants who have a sound legal defense an opportunity to avoid the time, expense, and risk of a trial. Publishers whose primary business is something other than journalism may especially need this protection, because they may lack the libel insurance or the deep pockets of major news publishers. 4

11 ARGUMENT I. This Court Should Read Media in (a)(6) as Following the Definition of Medium in (3) A. Applying the (3) definition is consistent with the Legislature s judgment about what electronic media means The Texas Legislature has already considered what the term electronic media should mean. As this Court has long recognized, the plain meaning of an undefined term can be inferred from how similar terms are used in other statutes. 1 And the Texas journalist-privilege statute defines news medium to encompass, among other things, a newspaper, magazine or periodical,... that disseminates news or information to the public by any means, including... electronic; and... other means, known or unknown, that are accessible to the public. Tex. Civ. Prac. & Rem. Code (3). This definition of news medium covers opinion as well as fact. Many magazine[s] have traditionally been publications of opinion; in- 1 See Brown v. Darden, 50 S.W.2d 261, 263 (Tex. 1932); Tex. Bank & Trust Co. v. Austin, 280 S.W. 161, 162 (Tex. 1926). When discerning the meaning of a term in a statute, a court must presume that the Legislature acted with full knowledge of the existing condition of the law, including how terms were used in similar portions of the Texas Code. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975). 5

12 formation is broad enough to cover opinion; and even news may include analysis as well as straight factual reporting. But in any event, when the definition of news medium in (3) is used as a source for defining the stand-alone term media in (a)(6), any possible limitation to news would be removed. The borrowed definition would thus be, a newspaper, magazine or periodical,... that disseminates [news, opinion, or information] to the public by any means, including... electronic... and... other means. Similar definitions of media are present in other state and federal statutes, and a body of law has emerged interpreting magazine and periodical in such provisions. For example, in O Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006), the California Court of Appeal held that a Web site published by a computer enthusiast qualified as a newspaper, magazine, or other periodical publication for purposes of the state journalist s privilege. Id. at 99. [P]eriodical publication, the court recognized, included all ongoing, recurring news publications, id. at 104, whether online or offline. And online publications could also be treated as magazine[s], because [t]he term magazine is 6

13 now widely used in reference to Web sites or other digital publications. Id. at 100. Nothing in the decision suggests that it mattered whether the Web site was the primary business of the authors who wrote for it, rather than just a sideline, or whether the authors had backgrounds in professional journalism. And O Grady has also been endorsed by the New Jersey Supreme Court in Too Much Media, LLC v. Hale, 206 N.J. 209, 236 (2011); the New Jersey court favorably cited O Grady s conclusion that certain online sites could qualify as magazine[s]. Similarly, in the Federal Election Commission s Advisory Opinion (Nov. 18, 2005), 2005 WL , the Commission determined that a Web site cofounded by a former U.S. Senator, the Senator s former chief of staff, and a computer consultant qualified for the federal campaign finance law exception for newspaper[s], magazine[s], or other periodical publication[s], 2 U.S.C. 431(9)(B)(i). That the Web site provided information to readers through the site s commentary on other news stories, and through some original reporting, sufficed to make it the online equivalent of a newspaper, magazine, or other periodical publication. Adv. Op , at 4. Again the decision did not inquire 7

14 whether the Web site was its operators primary business, or whether its founders had a professional journalism background. Finally, in Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130 (Tex. App. Fort Worth 2009, pet. denied), the Second Court of Appeals did exactly what we urge it looked to the (3) definition of medium in interpreting (a)(6), concluding that a publication that qualified as a news medium for purposes of (3) therefore qualified as media under (a)(6). Id. at 142. As Part III will argue below, the specific approach proposed in Kaufman lacked the clarity needed for uniform, predictable enforcement. But Kaufman was correct in following (3), and in not requiring that the website be its authors primary business. 2 While this definition of media covers a broad range of speakers, it still serves the limiting function that the Legislature intended. As Too Much Media and O Grady make clear, people who simply post occasional comments to others blog posts are not themselves publishers or 2 A different portion of , (2), limits the journalist s privilege to people who write for financial gain. But that comes in the definition of the separate term journalist, which does not appear in (a)(6). The definition of medium in the only definition relevant to interpreting (a)(6) lacks any such limitation to financially motivated authors. 8

15 coauthors of an electronic magazine or periodical. O Grady, 44 Cal. Rptr. 3d at 100; Too Much Media, 206 N.J. at 235. Likewise, people who communicate privately to employers, employees, business partners, family members, and the like would not be treated as media, since their communications would not involve disseminat[ing]... information to the public by... means... that are accessible to the public, (3) (emphasis added). Indeed, a Westlaw search for synopsis(libel slander defamation) & date(= 2013) in the TX-CS database reveals that at least 60% of the 28 opinions returned by the query (not counting the opinion below) came in cases involving what appeared to be nonmedia defendants. 3 3 See, e.g., Melendez v. Houston Indep. School Dist., 418 S.W.3d 701, (Tex. App. Houston [14th Dist.] 2013, no pet.) (alleged slander and libel of employee by employer, in statements to coworkers); Fitzmaurice v. Jones, 417 S.W.3d 627, 629 (Tex. App. Houston [14th Dist.] 2013) (alleged libel of advocacy group president by homeowners association, in pleadings filed by the association); Whisenhunt v. Lippincott, 416 S.W.3d 689, 692 (Tex. App. Texarkana 2013, pet. filed) (alleged libel of professional by company with which plaintiff had had a contract, in internal s among the company s employees); Mason v. Glickman, 408 S.W.3d 691, 693 (Tex. App. Dallas 2013, no pet.) (alleged defamation of congregant by rabbi, in rabbi s report to police of alleged child abuse by congregant). 9

16 B. The proposed reading of media will serve the policy animating (a)(6) Section (a)(6) allows for quick resolution of claims to save the time and expense of a trial on the merits when the media may be entitled to a constitutional or statutory privilege. Grant v. Wood, 916 S.W.2d 42, 46 (Tex. App. Houston [1st Dist.] 1995, no writ); see also Kaufman, 291 S.W.3d at 142 ( [P]ermitting Kaufman to challenge the trial court s denial of his summary judgment motion through this interlocutory appeal promotes one of the objectives of section (a)(6) it allows us to consider and sort out appellees defamation claims before this case enters the time-consuming and expensive trial phase. ). The adoption of too narrow a definition of member of the print or electronic media contradicts this policy. Refusing to apply (a)(6) to those who publish as a sideline to their day jobs, or to small nonprofits that publish as an adjunct to their main ideological missions, strips protection from those who need it most. These speakers are especially likely to have limited funds and to lack libel insurance. Moreover, because publishing is a secondary occupation for them, they may be less inclined to spend their life s savings (or their donors contributions) defending libel cases at trial. Knowing 10

17 this, these smaller speakers may be less willing to publish hard-hitting stories that risk drawing the ire of well-funded plaintiffs, even if the speakers are confident that they would be vindicated after a long and expensive trial. And such publishers that do not have publishing as their primary business have long played a vital role in the dissemination of important information. Consider the Summer 2009 Iranian protests: while CNN and other cable news outlets were slow to pick up the story, Twitter and YouTube carried a stream of reports, pictures and film from Iran s streets. Twitter 1, CNN 0, Economist (June 18, 2009), http: // Similarly, during the 2008 presidential campaign, it was a blogger who broke the story that Barack Obama had told a private fundraising party in San Francisco that small-town voters bitter over their economic circumstances cling to guns or religion or antipathy to people who aren t like them a quote that generated enormous controversy. Katharine Q. Seelye, Blogger Is Surprised by Uproar Over Obama Story, but Not Bitter, N.Y. Times (Apr. 14, 2008), nytimes.com/ 2008/04/14/us/politics/14web-seelye.html. 11

18 Likewise, when Senator Trent Lott stated his approval of Strom Thurmond s 1948 presidential candidacy in which Thurmond ran on the Dixiecrat pro-segregation ticket at Thurmond s 100th birthday party in 2002, the mainstream media was largely silent. See Oliver Burkeman, Bloggers Catch What Washington Post Missed, Guardian (Dec. 20, 2002, 7:37 PM), dec/21/internetnews.usnews. But many bloggers insisted that Senator Lott should be forced to resign as Senate Majority Leader, and were ultimately successful. See id. And there is nothing new about entities being parts of the media even though publishing is not their primary business. Labor unions, for example, published many newspapers and magazines as adjunct to their main ideological missions in the late 1800s and early 1900s. 4 Indeed, Eugene V. Debs, a prominent early 1900s Socialist Party presi- 4 Karla Kelling Sclater, The Labor and Radical Press 1820 the Present, Labor Press Project, labhist/ laborpress/kelling.shtml (last visited Oct. 23, 2013); Martin M. Perline, The Trade Union Press: An Historical Analysis, 10 Labor Hist. 107 (1969), available at doi/abs/ / #.UoETEnCsh8E. 12

19 dential candidate, started his political career as the editor of one such magazine. 5 Likewise, in 1910 the NAACP recognizing that spreading its message to the public was an important aspect of its political role began to publish the magazine The Crisis, which became a leading voice for civil rights. About Us, The Crisis, about.html. Today, magazines and newspapers such as the NRA s American Rifleman, the Sierra Club s Sierra, the Knights of Columbus Columbia, the United Methodist Church s Newscope, the Roman Catholic Diocese of Oakland s The Catholic Voice, and the Southern Christian Leadership Conference s SCLC Magazine follow this tradition. And, naturally, the advocacy organizations that published (or still publish) print magazines have likewise begun to publish in the much more cost-effective medium of the Internet. This change in form does not alter the fact that these authors are rightly seen as entities within the print or electronic media. Adopting (3) s definition of medium would protect these historic and important publications. The nar- 5 J. Robert Constantine, Eugene V. Debs: An American Paradox, Monthly Labor Review (Aug. 1991), available at opub/mlr/1991/08/art4full.pdf. 13

20 row definition used by the court below jeopardizes them. II. The Multi-Factor Primary Business Test Adopted by the Court Below Is Too Ill-Defined To Be Practically Usable, and Considers Factors That Ought Not Be Used So the primary business test adopted by the court below is inconsistent with the Legislature s understanding of the term media (see Part I.A, supra) and would strip protection from a vast range of publications that have long been properly seen as media (see Part I.B, supra). But the primary business test would also be unpredictable, to the point that it would undermine the judicial efficiency interests that animate (a) more broadly. The court below acknowledged that it may be difficult to ascertain a person s or entity s primary business, and concluded that the decision must be based on: (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 (inquiring whether the author is a journalist by trade, education, or experience; whether the author is a member of various journalistic organizations; and whether the author is 14

21 reporting information on which he or she has a business, as opposed to news-reporting, interest) ; (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 range of reporting (inquiring about the primary purpose of the internet communication; whether the communication involves matters of public concern; and the breadth of its coverage) ; (5) the editorial process (inquiring whether journalists select the stories to be researched and published on the website, whether the selection of stories was driven by their newsworthiness or other factors; and whether journalists supervise the research and act as the primary authors or editors of the website content) ; and (6) the size, nature, and diversity of the readership and whether the readership relies on the author to obtain news. Serv. Emps. Int l Union Local 5 v. Prof l Janitorial Serv. of Houston, Inc., 415 S.W.3d 387, 399 (Tex. App. Houston 2013, pet. filed). No one 15

22 fact is dispositive; rather, the inquiry should focus on the totality of the circumstances. Id. The court also added a seventh factor (or perhaps a spin on one or more of the earlier factors), which is whether the speaker is objective or neutral in their viewpoints, id., or instead aims to incite action or to sway public opinion, id. at 401. Such multifactor balancing tests often yield unpredictable results; but they are especially unpredictable when many of the individual factors are themselves as vague as the ones here. For instance, how much journalistic background and experience suffices under this test? (Some of the authors of SEIU s web site, for instance, were experienced journalists, id. at 393, but the court below seemed to think this was not enough.) Just how well- established should an author s presence or reputation in traditional media be? What qualifies as sufficient breadth of coverage? How large must the size of the readership be, what sort of nature would qualify the site for protection, and how divers[e] (and along what dimensions) must the readers be? The point of (a) is to save judicial resources, by generally preventing unnecessary interlocutory appeals but allowing them in a specific set of cases in which early appellate adjudication would be espe- 16

23 cially helpful. To serve this goal, the exceptions have to be clearly defined. Without a clear rule, defendants will have an incentive to file interlocutory appeals in the hope that their appeals will be allowed, thus delaying litigation even in instances where an appeal ends up being rejected. And without a clear rule, many speakers contemplating the risk of litigation will not have the assurance of prompt judicial resolution that (a)(6) aims to provide. Yet the court of appeals decision offers uncertainty instead of clarity. And beyond this, many of the factors that make up the court of appeals rule are substantively unsound. For instance, it should not matter whether the publishers have journalistic background [and] experience, id. at 399. People whose prior jobs involved professional journalism have no monopoly on informing the public. If an activist, labor organizer, lawyer, or academic has something to add to the debate, that speech should be evaluated on its merits, not based on the author s résumé. Likewise, a person should not lose (a)(6) protection for choosing not to associate with various journalistic organizations, id. 17

24 Nor should it matter whether the readership is vast or more modest: small local news websites can be more valuable than national sites to citizens interested in local news and opinion about local news. Likewise, it should not matter whether the readership is divers[e] ; electronic magazines and other periodicals addressed to a particular profession, for instance, may have a homogeneous readership but may provide important commentary and analysis for those readers. (How Appealing, SCOTUSblog, and the Supreme Court of Texas Blog, for instance, reach relatively homogeneous audiences of lawyers, but are important news and analysis sources to those audiences.) Finally, it should not matter whether the speaker aims to incite action or to sway public opinion, id. at 401, as is done by many speakers, including the NAACP, NRA, the Sierra Club, National Right to Work, Power Line, and Instapundit. While in recent decades the specific medium of daily newspapers has generally purported to aim at objectivity, for much of the nation s history newspapers were highly opinionated. And beyond that, magazines, which are indubitably media, have long included opinionated publications, such as National Review, The 18

25 New Republic, and The Nation. The court of appeals primary business test is thus both unduly vague and unduly narrow. III. The Alternative Test Set Forth by the Second Court of Appeals Is Likewise Inferior to the (3) Test Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130, 142 (Tex. App. Fort Worth 2009, pet. denied), also tried to define media in (a)(6). Kaufman s interpretation is not as flawed as the primary business interpretation adopted by the court below. Nonetheless, it would be better to simply adopt the (3) definition which extends protection to electronic magazines and periodicals coupled with the caselaw interpreting the terms magazines and periodicals. Kaufman concluded that (a)(6) applies 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 that section through more traditional electronic or print media. Kaufman, 291 S.W.3d at 142. Unlike the test set forth by the court of appeals in this case, the Kaufman test does not require that the publication be the speaker s primary business. Indeed, SEIU would likely 19

26 have prevailed under the Kaufman test. While the Kaufman test is better than the primary business test, it is too vague to be uniformly and predictably applied. It does not explain, for instance, how high the volume of dissemination must be, how much the communicator must be compensated, what counts as an acceptable character and text of the communication, how much extrinsic notoriety the speaker must have, or what are the other relevant circumstances as the facts may dictate. To be sure, the Second Court of Appeals seemed to be moving toward a definition much like the one amici propose, and indeed cites (3) as an authority. But simply asking whether the online site is a magazine or periodical aimed at the public, and using a definition such as that given by O Grady whether the site involves an ongoing, recurring publication should offer a clearer standard. Finally, note that Hotze v. Miller, 361 S.W.3d 707 (Tex. App. Tyler 2012, pet. denied), the one other case that considered what media under (a)(6) covers, did not articulate a test at all, but simply concluded that the particular speaker in that case was a member of the media. Hotze was a physician by profession, but had also been a po- 20

27 litical writer and journalist for thirty years apparently as a sideline to his main profession had editorials... published in a weekly newspaper, host[ed] two websites that also publish his articles, and ha[d] hosted a radio broadcast, id. at This, the court concluded, was sufficient to show that Hotze is a media defendant. Id. at 712. But the court did not go further to elaborate any test for what would constitute media. CONCLUSION Amici ask that this Court interpret media under (a)(6) by borrowing the definition of media set forth in (3). Such a decision would provide (a)(6) protection to the many speakers who publish ongoing, recurring publications, but who are not in the primary business of creating such publications including the SEIU, other advocacy groups, religious groups, and amici curiae. 21

28 Respectfully submitted, Eugene Volokh (Admitted Pro Hac Vice) UCLA School of Law First Amendment Amicus Brief Clinic 405 Hilgard Ave. Los Angeles, CA (310) /s/ J. Campbell Barker J. Campbell Barker State Bar No Yetter Coleman LLP 909 Fannin, Suite 3600 Houston, TX (713) Counsel for Amici Curiae 22

29 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Texas Rules of Appellate Procedure 9.4(i)(2)(B) & 11(a) because it contains 3,756 words, excluding the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1). /s/ J. Campbell Barker J. Campbell Barker 23

30 CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), and (e), I certify that, on June 23, 2014, I have served this document on all counsel listed below, via the Court s electronic-filing system: Robert M. Randy Roach, Jr. Amy J. Schumacher Roach & Newton, L.L.P Bagby Street, Suite 2650 Houston, TX rroach@roachnewton.com aschumacher@roachnewton.com Philip Durst B. Craig Deats Deats Durst Owen & Levy, P.L.L.C San Antonio Street, Suite 203 Austin, TX pdurst@ddollaw.com cdeats@ddollaw.com G. Mark Jodon Timothy A. Rybacki Littler Mendelson, P.C McKinney, Suite 1900 Houston, TX mjodon@littler.com trybacki@littler.com Counsel for Respondent Counsel for Petitioners /s/ J. Campbell Barker J. Campbell Barker 24