Here’s a bit of legal reasoning you don’t see every day:
Of all the empowering, life-altering lessons Ferris Bueller taught us—for example, you can’t erase telltale mileage off a 1961 Ferrari 250 GT California Spyder by jacking up the car and running it in reverse—his “life moves pretty fast” insight rings truest. It isn’t tired reel-life wisdom but tried real-life wisdom, both for everyday Texans and for the courts that serve them. The modern Internet age moves far faster than the pre-digital grind from which Ferris Bueller played hooky almost thirty years ago. Life in 2014 moves blazingly fast, and nowhere faster than online, where an increasing number of Americans consume news and political information.
That’s the opening paragraph of a dissenting opinion filed Friday by Justice Don Willett of the Texas Supreme Court. He was objecting to his colleagues’ decision not to hear a case addressing the legal question, “Who qualifies as a member of the ‘electronic media’ under Texas law?”
The case began in 2007 when Professional Janitorial Service of Houston (PJS) sued a local chapter of the Service Employees International Union (SEIU). The company accused the union of defamation, claiming SEIU falsely stated in an online report that PJS had violated federal law by not paying its employees properly.
Now, stay with me through some procedural stuff. The union filed a summary judgment motion, which the trial court denied, and then the union filed an interlocutory appeal. You file one of those when you want a higher court immediately to resolve some issue, even before all other issues are resolved.
The appeals court said SEIU was not entitled to such an appeal because it’s not primarily in the business of reporting news. Litigants in Texas must wait for all issues to be resolved before appealing, unless they qualify for an exception. One of those exceptions: You’re a “member of the electronic or print media,” and free expression rights are at risk.
So, turned away by the appeals court, SEIU asked the Texas Supreme Court to explicate the phrase “electronic media” under Texas law. The union wanted to know if its online publishing activities qualified. So did various blogs, including SCOTUSblog and Instapundit, which urged the court to take the case.
Their main concern was that the appeals court had defined “member of the electronic or print media” so narrowly that it would exclude a wide range of non-traditional publications, including blogs and “advocacy-group magazines” like the NRA’s American Rifleman and the Sierra Club’s Sierra.
The justices declined last week to take the case, so the appeals court ruling stands: The SEIU is not part of the media and thus not entitled to claim certain statutory privileges the media enjoy in Texas. And the bloggers, for the moment, will have to live with some uncertainty regarding their own status, too.
But Justice Willett, himself an avid Twitter user, chided his colleagues for punting on the case. And he did so by calling on Ferris Bueller’s Day Off, which he described as “chock-full of practical life lessons,” such as: “The question isn’t what are we going to do. The question is what aren’t we going to do.”
With that in mind, Willett said “we aren’t bringing clarity and uniformity to an important, fast-changing area of law—an area where … as the U.S. Supreme Court recognizes, ‘the line between the media and others who wish to comment on political and social issues becomes far more blurred.’”
Throughout the opinion, Willett waxed eloquent on the media industry:
- “[D]o ‘professional’ journalists—and only professional journalists—have preferred status when it comes to informing the public? Do other engaged citizens—lawyers, professors, activists, etc.—have no fruitful analysis, information, or commentary to add to the public debate, at least none worth protecting with up-front judicial attention to safeguard the free, unchilled exchange of ideas?”
- “[M]any authors who write for the nation’s most visited and prominent blogs and websites do so as a sideline. They publish, but their ‘primary business’ is not publishing.”
- “The old-school news industry confronts urgent economic challenges (to put it mildly), spurring media outlets to innovate with alternative business models and creating space for professionals who, while not full-time ‘journalists,’ undoubtedly serve a journalistic function, and serve it well.”
Willett said the First Amendment does not protect only the institutional press and that “[g]iven the warp-speed evolution of digital [journalism], we should insist on clear rules, clearly defined and clearly applied,” that functionally rather than formally conceptualize a “member of the electronic or print media.”
It’s a shame Willett’s is a dissenting opinion (on only a petition for review, at that), and it’s a shame his colleagues’ voices are absent from the debate. Or, to put their absence as Willett did:
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.Justice Bueller…?
Justice Bueller…?
Justice Bueller…?
