joe-kaufman-v-islamic-society-of-arlington-texas-islamic-center-of ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-023-CV
JOE KAUFMAN APPELLANT
V.
ISLAMIC SOCIETY OF ARLINGTON, APPELLEES
TEXAS, ISLAMIC CENTER OF IRVING,
DFW ISLAMIC EDUCATIONAL
CENTER, INC., DAR ELSALAM
ISLAMIC CENTER, AL HEDAYAH
ISLAMIC CENTER, ISLAMIC
ASSOCIATION OF TARRANT COUNTY,
AND MUSLIM AMERICAN SOCIETY
OF DALLAS
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Introduction
Appellant Joe Kaufman appeals the trial court’s denial of his traditional
motion for summary judgment against appellees Islamic Society of Arlington,
Texas; Islamic Center of Irving; DFW Islamic Educational Center, Inc.; Dar
Elsalam Islamic Center; Al Hedayah Islamic Center; Islamic Association of
Tarrant County; and Muslim American Society of Dallas.1 Appellees move to
dismiss the appeal. We deny appellees’ motion to dismiss, we reverse the trial
court’s denial of Kaufman’s summary judgment motion, and we render
judgment for Kaufman.
Background Facts
In 2007, the Islamic Circle of North America [ICNA] Dallas, along with “all
DFW Masajid 2 and Islamic Centers,” (as stated in a promotional flyer) sponsored
Muslim Family Day at Six Flags Over Texas in Arlington. Six Flags scheduled
the event for October 14, 2007. The flyer for the event stated that tickets
could be purchased from appellees Islamic Society of Arlington, Texas and
Islamic Center of Irving, among other groups.
1
… The introductory portion of Kaufman’s brief signals that he is raising
eleven issues; however, the listed issues do not directly correspond to portions
of Kaufman’s brief, and the issues all relate to various aspects of the propriety
of the trial court’s summary judgment decision.
2
… A Masajid is a mosque.
2
On September 28, 2007, the Front Page Magazine website 3 published an
article by Joe Kaufman titled, “Fanatic Muslim Family Day.” That article
related:
On Sunday, October 14, 2007, Six Flags Over Texas, a
Dallas-area amusement park, will be invaded by a radical Muslim
organization that has physical ties with the Muslim Brotherhood and
financial ties to Hamas. While most patrons of the park come for
the games and rides, those involved with this group’s event,
Muslim Family Day, may very well have found an original and
appealing way to spread anti-Western hatred.
The Islamic Circle of North America (ICNA), an umbrella
organization for South Asian-oriented mosques and Islamic centers
throughout the United States and Canada, has been in existence for
over three decades. Those that founded it had done so in order to
create an American arm for the Muslim Brotherhood of Pakistan,
Jamaat-e-Islami (JI), and never has ICNA relinquished that
connection. Indeed, just one year ago, ICNA was the top donor of
a JI charity, the Al-Khidmat Foundation (AKF), that provided tens
of thousands of dollars to the head of Hamas, Khaled Mashaal.
Apart from its working relationship with terrorists abroad,
ICNA does an exceptional job of portraying itself as “mainstream.”
The group runs annual functions, in a number of cities, that are
presented as family entertainment. The same will be the case, next
month, when members of ICNA embark on Arlington, Texas, at Six
Flags Over Dallas, for their Muslim Family Day.
Co-sponsoring the day is the Islamic Association of North
Texas (IANT) a.k.a. the Dallas Central Mosque. 4 IANT has helped
3
… The website can be accessed at http://www.frontpagemagazine.com.
4
… Neither ICNA nor IANT were plaintiffs in this suit. Jamal Qaddura,
president of appellee DFW Islamic Educational Center, Inc., testified during his
deposition that this lawsuit was the first time he had heard of ICNA. Nothing in
3
to raise hundreds of thousands of dollars for the legal defense of
Hamas operative Ghassan Elashi and his four brothers, one of
which was on the mosque’s board. The Elashis have been tied to
a Hamas financing ring, which included an internet company . . .
and an Islamic charity, Holy Land Foundation for Relief and
Development (HLF). A Dallas trial regarding the Elashis and HLF,
which began in July, is currently in its closing stages.
The upcoming event will feature prayer sessions at the Music
Mill Theatre, halal 5 food vendors, and Islamic organization tables
offering the latest in extremist propaganda. As well, drawing
parallels to Hamas TV’s late Mickey Mouse look-alike, Farfur,
Muslim Family Day will offer a Bugs Bunny and Friends parade.
This is not the first time ICNA has used Six Flags to spread
its message. The group holds yearly events at Six Flags’ Great
Adventure in New Jersey, the most recent of which took place in
September of 2006. While many would consider it a harmless
gesture for an organization to rent out an amusement park, with
regard to ICNA, nothing is harmless.
As stated previously, ICNA was found to have been a recent
donor to Hamas. However, ICNA has also been involved in the
financing of Al-Qaeda. Shortly before (and after) the attacks on
9/11, ICNA’s Southeast division called on its website viewers to
give “material support” to their brethren in Chechnya. Attached to
this call was a link to one of the main websites raising funds and
recruiting fighters for Al-Qaeda and the Taliban. The site, Jihad in
Chechnya, was produced by Azzam Publications, named for the
mentor of Osama bin Laden, Abdullah Azzam. Additionally, one of
the individuals involved in the creation of the website, Mazen
Mokhtar, who has since been indicted on charges of tax fraud, was
a featured speaker at different ICNA and ICNA-affiliate events.
the record indicates that any of appellees’ organizations have any formal
connection with either ICNA or IANT.
5
… Halal food is prepared in conformity with Islamic religious guidelines.
4
Over time, ICNA has worked to create various radical
projects. Among them are its youth wing, Young Muslims (YM),
and a web information center called Why Islam? [The logos of YM
and Why Islam? are found on the homepage of the Muslim Family
Day website.]6 Both of these institutions provide forums on the
Internet for members and organization leaders to converse with one
another. Found on the forums have been support for overseas
terrorist organizations and calls for violence against Americans and
Jews.
. . . .7
While using images of cartoon characters and sponsoring
events at amusement parks may seem innocuous, the danger that
the [ICNA] poses to the United States, Canada[,] and others is
clear. As a faction of the Muslim Brotherhood, the organization
looks to impose Islam on Western society, and as a donor to a
terrorist organization, the group is a willing participant in the act of
violence.
ICNA’s Muslim Family Day that will occur on October 14,
2007 is nothing but a charade, created to spread hatred, but veiled
in a way to make the sponsoring organization look harmless.
Six Flags will play host to this dangerous farce. If events, such as
these, are allowed to continue, more and more Americans could
become desensitized to those groups—fifth columns 8 within our
borders that wish to do us harm. It is up to those concerned to
speak out against these travesties that threaten our way of life.
6
… This bracketed sentence appears as part of Kaufman’s original article.
7
… This omitted portion of Kaufman’s article contained two paragraphs
related to the content of the forums on the YM and Why Islam? websites.
8
… Appellees have asserted that a “fifth column” is a “group of secret
sympathizers or supporters of an enemy that engage in espionage or sabotage
within defense lines or national borders.”
5
Americans Against Hate will be leading a protest outside Six
Flags Over Texas, on Sunday, October 14th to call attention to
ICNA’s ties to terrorist financing. Those that wish to get involved
are asked to e-mail . . . .
The Front Page Magazine website included a graphic that contained the
Six Flags logo and incorporated the word “JIHAD” written in what appeared to
be dripping red letters over an outline of the state of Texas. About nine
thousand people attended Muslim Family Day. Kaufman appeared at the event;
he picketed with other protestors along a roadway outside of Six Flags’
property while carrying a sign that stated, “Six Flags Over Terrorists.”
Appellees filed this lawsuit against Kaufman in October 2007.
That month, the trial court denied Kaufman’s special appearance and also
granted appellees’ application for a temporary injunction against Kaufman,
prohibiting him from threatening to take unlawful action against any of
appellees or their members or causing or threatening to cause bodily injury to
any of appellees or their members. In November 2007, Kaufman filed his
original answer.
On April 4, 2008, Kaufman filed a no-evidence motion for summary
judgment on appellees’ defamation and intentional infliction of emotional
distress claims and on their request for exemplary damages. On April 18,
6
2008, appellees filed their fourth amended petition,9 which alleged that
Kaufman generally used his website to incite hate against Islamic organizations
and citizens and that he specifically used the website to attack appellees’
association with Muslim Family Day by giving the impression that “the
supporters and sponsors of the [event] are terrorists or supporters of terrorism.”
The petition requested injunctive relief related to Kaufman’s existing and future
internet publications and nominal damages. 10
On October 21, 2008, appellees filed a motion for partial summary
judgment, attaching affidavits 11 and other documents that they asserted
9
… The fourth amended petition is appellees’ most recent pleading. The
record indicates that Appellees filed their first and second amended petitions in
October 2007 and that they filed their third amended petition on April 4, 2008.
However, none of these petitions are included in our record on appeal.
10
… The fourth amended petition did not include any claim for intentional
infliction of emotional distress; it contained only defamation claims. Qaddura,
submitted an affidavit regarding Kaufman’s articles that appellees attached to
the petition. In part, the affidavit asserted that Kaufman has “delusional
rantings,” that he is a “radical on the Israeli side of the international debate over
Palestine,” and that he “wishes to stir up anger, resentment, bias, and hatred
of peaceful, law abiding citizens, solely because of their religion.”
Qaddura attached to his affidavit, among other exhibits, Kaufman’s article on
Muslim Family Day, a press release regarding Kaufman’s protest, and a Fort
Worth Star-Telegram article about the protest.
11
… Specifically, Jehad Alasad, president of appellee Islamic Society of
Arlington, Inc., stated that his organization, a “private corporation which
generally seeks to avoid media attention,” had spiritual and community
purposes unrelated to terrorism. He explained his group’s association with
Muslim Family Day as follows:
7
established their defamation claims beyond any genuine issue of material fact
and as a matter of law. In the motion, appellees conceded that much of
Kaufman’s article was “devoted to discussions of [ICNA]” and its financial links
to Islamic groups unconnected to appellees.12 However, they contended that
the article “makes no distinction among the event’s sponsors” by referencing
“‘these groups’ as sympathizers or supporters of an enemy.” 13
Essentially, if a group guaranteed that its members would purchase
a minimum number of tickets, the group could promote its event at
Six Flags . . . . In the summer of 2007, a number of groups . . .
entered into an agreement with Six Flags to promote [Muslim
Family Day]. These groups included [appellees]. . . . Six Flags
agreed to set aside the Music Mill Theater for participants of
Muslim Family Day to gather, to participate in the daily Islamic
prayers if they wished, and to permit vendors to make Halal food
....
Alasad also recited that he viewed Kaufman’s article and graphic about Muslim
Family Day, and he contended that the article signaled to him that Kaufman
alleged that the organizations sponsoring Muslim Family Day promoted
terrorism. Other representatives from the other appellees submitted similar
affidavits.
12
… In their appellate brief, appellees have again admitted that much of
Kaufman’s article was “devoted to discussions of the [ICNA] and the [IANT],
neither of whom are parties to this case.”
13
… Appellees’ motion further contended,
by juxtaposing statements in the article relating to . . . the terrorist
sponsorship of ICNA and IANT with statements regarding the Six
Flags event and its sponsors and participants, the article conveys
the false and defamatory message that the sponsors and
participants are engaged in an event that promotes anti-Western
8
Six days after filing their motion for partial summary judgment, appellees
filed their response to Kaufman’s no-evidence summary judgment motion.
The same day that appellees filed their response, Kaufman filed a traditional
motion for summary judgment. Kaufman attached an affidavit to that motion,
which included statements that
• he learned of Muslim Family Day while researching issues
related to terrorism, he discovered ICNA’s relationship to
Hamas through Muslim websites, and he “wrote the at-issue
article [and created the graphic and the ‘Six Flags Over
Terrorists’ sign] . . . in order to expose [his] research
regarding ICNA and its ties to Hamas”;
• he has never doubted the truth of the statements in his
article, because he conducted “hours of extensive research”
before publishing them; and
• he never specifically identified any group or individual other
than ICNA and IANT, and he had “no intention whatsoever
to implicate any of the [appellees] with terrorism or nefarious
activity,” because he had “no knowledge that the majority of
the [appellees’] entities even existed.”
Kaufman also attached to his motion (1) appellees’ written discovery responses,
(2) Google search result pages, (3) a deposition transcript,14 and (4) evidence
hatred, terrorism, espionage, and sabotage.
14
… The transcript came from the deposition of Qaddura, who testified in
part that Kaufman’s article terrified him of being harmed when he attended
Muslim Family Day and that Kaufman branded “any Muslim that attended the
event as a terrorist.”
9
that he claimed substantiated the facts in his article about ICNA and IANT’s ties
to terrorism.
On November 6, 2008, appellees filed a response to Kaufman’s traditional
summary judgment motion. They objected to portions of Kaufman’s summary
judgment evidence, asserted that he is not a media defendant for the purposes
of First Amendment protection because he only communicates his articles
through the internet (rather than in print or through radio or television), and
reiterated their belief that Kaufman’s statements were defamatory as a matter
of law.
After Kaufman filed a response to appellees’ partial summary judgment
motion and he filed proposed findings of fact and conclusions of law, in January
2009, the trial court sent all counsel a letter informing them that it was denying
all parties’ motions for summary judgment and that it was sustaining some of
appellees’ objections to Kaufman’s summary judgment evidence. 15 The trial
15
… Specifically, the trial court sustained objections to (1) two lists of
“Unindicted Co-conspirators and/or Joint Venturers” filed in a federal criminal
case; (2) an attachment allegedly related to terrorism donations; (3) printouts
of web pages related to appellees’ addresses; and (4) the Google search result
printouts. The court denied the remainder of appellees’ objections.
Kaufman has not raised any issue on appeal related to the trial court’s decision
to sustain appellees’ objections; therefore, we will not consider any of the
documents that the trial court excluded. See Tex. R. App. P. 38.1(i); Inglish v.
Prudential Ins. Co. of Am., 928 S.W.2d 702, 706 (Tex. App.—Houston [1st
Dist.] 1996, writ denied) (op. on reh’g).
10
court then formally entered an order reflecting the decisions it had
communicated through its letter.16 Kaufman filed his notice of this interlocutory
appeal.
Our Jurisdiction Over This Appeal
Appellees have filed a motion to dismiss Kaufman’s appeal, contending
that we lack jurisdiction to consider it. Kaufman has responded by arguing that
section 51.014(a)(6) of the civil practice and remedies code authorizes his
interlocutory appeal.17 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6)
(Vernon 2008).
An order denying a motion for summary judgment is interlocutory and
generally not appealable. Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d
616, 623 (Tex. App.—Fort Worth 2007, pet. denied) (op. on reh’g).
However, section 51.014(a)(6) 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
16
… The order stated that the court denied Kaufman’s summary judgment
motion that he filed on October 27, 2009—this was Kaufman’s traditional
motion.
17
… Kaufman also relied on section 51.014(a)(6) in his notice of appeal
that he filed with the trial court.
11
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 73.18
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6); see Tex. A & M Univ. Sys.
v. Koseoglu, 233 S.W.3d 835, 842–43 (Tex. 2007); SNF, Inc., 223 S.W.3d
at 623; Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex.
App.—Fort Worth 2001, pet. denied). We strictly construe statutes giving us
jurisdiction over interlocutory appeals. See Tex. S. Univ. v. Gilford, 277
S.W.3d 65, 71 (Tex. App.—Houston [1st Dist.] 2009, pet. filed); Am. Online,
Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App.—Houston [14th Dist.] 1997,
no pet.).
In their dismissal motion and in their brief, appellees contend that
Kaufman’s interlocutory appeal under section 51.014(a)(6) is improper because
he has failed to establish that he is a “member of the electronic or print media,”
as the section requires. Specifically, they assert that Kaufman cannot be a
media defendant under section 51.014(a)(6) because he “merely posts to the
18
… Chapter 73 of the civil practice and remedies code establishes some
statutory elements and defenses of libel claims. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 73.001–.006 (Vernon 2005). Kaufman’s traditional summary
judgment motion contained contentions regarding chapter 73 and the First
Amendment, and appellees’ summary judgment motion sought relief under
chapter 73 (although their petition had not cited to that chapter), along with
common law defamation.
12
internet,” because Front Page Magazine is simply Kaufman’s own internet blog
(an assertion that is belied by the affidavits discussed below), and because
Kaufman has not demonstrated that he has the training associated with
traditional journalism. Kaufman asserts that he is a media defendant under that
section 51.014(a)(6) because, among other reasons, he published his article on
Muslim Family Day “in his role as a journalist . . . regarding a national issue of
public concern—terrorism.” The parties have asserted that Kaufman’s status
as a media defendant under section 51.014(a)(6), considering the online nature
of his article and graphic that are the subject of appellees’ defamation claims,
is an issue of first impression.19
In SNF, Inc., we explained that to
determine the scope of our jurisdiction, we look to the legislature’s
intent in enacting section 51.014(a)(6). Unless a statute is
ambiguous, we discern that intent from the language of the statute
itself. We cannot construe a statutory provision to lead to an
absurd result if the provision is subject to another more reasonable
interpretation. Further, we consider the provisions of a statute as
a whole and not in isolation.
SNF, Inc., 223 S.W.3d at 626 (footnotes and citations omitted). We then
opined that a “plain reading of this language evidences clear legislative intent
19
… Like the parties, we have not found any Texas cases that squarely
address the issue of an internet author’s status as a member of the print or
electronic media under section 51.014(a)(6).
13
that a party seeking summary judgment on claims or defenses that implicate
free speech be entitled to appeal a trial court’s denial of this relief.” Id.; see
Koseoglu, 233 S.W.3d at 842–43; TSM AM-FM TV v. Meca Homes, Inc., 969
S.W.2d 448, 451 (Tex. App.—El Paso 1998, pet. denied) (stating that by
providing for an interlocutory appeal, Section 51.014(a)(6) permits “courts to
sort out unmeritorious libel cases before the cases enter[] the time-consuming
and expensive trial phase”).
The evidence contained in the appellate record and submitted through
additional affidavits filed in this court 20 establishes the following:
20
… We may consider documents submitted by the parties that are
outside of the trial court’s record for the purpose of determining our own civil
jurisdiction. See Tex. Gov’t Code Ann. § 22.220(c) (Vernon 2004); Sabine
Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979);
Kenseth v. Dallas County, 126 S.W.3d 584, 593 (Tex. App.—Dallas 2004, pet.
denied); see also Lindsey v. Kline, No. 02-03-00239-CV, 2004 WL 1699909,
at *2 (Tex. App.—Fort Worth July 29, 2004, no pet.) (mem. op.) (stating that
we may “consider affidavits or other evidence not included in the appellate
record to determine our own jurisdiction”).
In response to appellees’ motion to dismiss this appeal, Kaufman filed a
declaration from David Horowitz and an additional affidavit from himself,
documents that are not in our appellate record, in an attempt to strengthen his
claim that he satisfies the criteria of section 51.014(a)(6). Appellees filed
objections and a motion to strike these additional documents, contending that
there is no authority for adding new evidence to the appellate record and that
Horowitz’s declaration did not satisfy the requirements of an affidavit under
Texas law. Kaufman filed a response to appellees’ objections and motion to
strike, and he also filed an affidavit from Horowitz as a substitute for
Horowitz’s declaration. In his response, Kaufman stated that he submitted
14
• Kaufman is a full time investigative journalist who has been
writing for national publications since 1995 and who focuses
primarily on terrorism issues by gathering information from
“government publications, public government documents,
and Muslim websites”;
• Kaufman writes regularly for Front Page Magazine, which is
a “national publication which focuses mainly on the issues of
politics and terrorism and has a monthly readership of
approximately 500,000.“ Kaufman has published more than
one hundred articles on Front Page Magazine;
• Kaufman does not control whether Front Page Magazine
publishes news stories that he submits to it, and he does not
control whether Front Page Magazine edits such pieces if
selected for publication. Front Page Magazine is published by
the David Horowitz Freedom Center;
• Horowitz is the editor-in-chief of Front Page Magazine.
Horowitz is a nationally recognized author and political
commentator who has written several books, has spoken to
over three hundred colleges, and has appeared on several
television programs. Horowitz publishes Kaufman’s news
and commentary because, according to Horowitz, Kaufman
is “among the few journalists investigating ties between
domestic individuals . . . and [terrorist] organizations”;
Horowitz’s declaration as “proof responsive to a motion to dismiss an appeal.”
Based on the authority cited above, we will consider Horowitz’s affidavit
and Kaufman’s additional affidavit for the limited purpose of determining our
jurisdiction over this interlocutory appeal under section 51.104(a)(6), which is
an issue that, of course, could not have been litigated in the trial court. We will
not consider the additional affidavits for any other purpose, including the
propriety of the trial court’s summary judgment decision. We therefore overrule
appellees’ objections and their motion to strike Kaufman’s additional affidavits.
15
• Kaufman is the co-founder and chairman of the board of
directors for Americans Against Hate, which is a Florida
nonprofit organization that has other executive officers; and
• Kaufman has given “numerous speeches at various
conferences and educational institutions,” and he has
”appeared on most of the major television networks,
including Fox News, CNN, MSNBC, and CNBC.”
We believe that these facts and circumstances, establishing (1)
Kaufman’s journalistic background and his notoriety outside of the parameters
of the article and graphic at issue and (2) Front Page Magazine’s broad
readership and its existence as a news/commentary medium that is independent
from Kaufman’s articles, are sufficient to qualify Kaufman as a “member of the
electronic or print media” and to qualify Front Page Magazine as an electronic
or print medium in which Kaufman’s article and graphic appeared. We cannot
agree with appellees that Front Page Magazine’s internet status alone 21 costs
Kaufman his benefit to file an interlocutory appeal as a member of the electronic
media 22 for several reasons.
21
… Appellees assert that Kaufman is not a media defendant under section
51.014(a)(6) because Front Page Magazine is not a “printed newspaper or
magazine, or part of a radio or television broadcast.” They further contend that
Kaufman “is asking this Court to make the unprecedented ruling that postings
made solely to the internet by an individual should be accorded the same ‘media
defendant’ protections as newspapers, magazines, and radio and television
stations.”
22
… Appellees do not contest the fact that Front Page Magazine, through
its internet existence, is “electronic” in nature.
16
First, authority that we consider instructive on this issue indicates that
articles communicated through the internet equate in legal effect in some
circumstances to words published by more traditional electronic or print media.
For instance, in Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., the federal
Fifth Circuit Court of Appeals considered how the Texas Supreme Court would
resolve a statute of limitations issue regarding libel in an internet publication.
512 F.3d 137, 143 (5th Cir. 2007). In applying the same statute of limitations
rule to internet publications that Texas applies to traditional publications, the
Fifth Circuit noted that
some courts have reasoned that the “functional similarities between
print and Internet publication” support application of the single
publication rule to both types of media. As one court noted, “A
statement electronically located on a server which is called up
when a web page is accessed, is no different from a statement on
a paper page in a book lying on a shelf which is accessed by the
reader when the book is opened.”
Id. at 144 (citations omitted).
Second, although appellees negatively characterize the internet’s use as
an avenue of communication in their attempt to distinguish it from more
traditional media, 23 the United States Supreme Court has extended First
23
… Appellees assert in their brief that the internet “has become a
combination of gossip fence, coffee house, back alley, and bathroom stall for
the dissemination of gossip, rumor, innuendo, and outright falsehood.”
17
Amendment protections to information published through the internet.
See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874–85, 117 S. Ct.
2329, 2345–51 (1997). In Reno, after examining the background, growth, and
characteristics of the internet,24 the Court held that there is no basis for
“qualifying the level of First Amendment scrutiny that should be applied to [the
internet] medium.” Id. at 870, 117 S. Ct. at 2344; see also In re Does 1–10,
242 S.W.3d 805, 820 (Tex. App.—Texarkana 2007, orig. proceeding) (stating
24
… Specifically, the Court stated that the internet is comparable to
a vast library including millions of readily available and indexed
publications . . . .
From the publishers’ point of view, it constitutes a vast
platform from which to address and hear from a worldwide
audience of millions of readers, viewers, researchers, and buyers.
Any person or organization with a computer connected to the
Internet can “publish” information. Publishers include government
agencies, educational institutions, commercial entities, advocacy
groups, and individuals. Publishers may either make their material
available to the entire pool of Internet users, or confine access to
a selected group, such as those willing to pay for the privilege.
....
. . . This dynamic, multifaceted category of communication
includes not only traditional print and news services, but also
audio, video, and still images, as well as interactive, real-time
dialogue.
Reno, 521 U.S. at 853, 870, 117 S. Ct. at 2335–36, 2344 (citations and
footnotes omitted).
18
that “[s]peech over the Internet is afforded no lower level of First Amendment
scrutiny”).
Third, as Kaufman has argued, Texas Supreme Court precedent signals
that when the text of a statute logically authorizes the application of the statute
to a new technology or communication medium, we should apply the statute
in that way. In San Antonio & A.P. Ry. Co. v. Sw. Tel. & Tel. Co., the court
examined a statute related to condemnation of property for the installation and
maintenance of telegraph lines. 93 Tex. 313, 318–19, 55 S.W. 117, 117
(1900). The issue before the court was whether that same statute applied to
condemnation for telephone lines, even though the statute did not specifically
mention telephone lines because telephones had just recently been invented
when the telegraph statute was enacted. Id. at 317–19, 55 S.W. at 117.
In holding that the telegraph statute did apply to telephone lines, the court
reasoned in part that if a statute’s “language used is broad enough to embrace
a subsequently developed method, the later invention might be controlled by
the pre-existing law, as if it had been in existence at the time the law was
made.” Id. at 318, 55 S.W . at 117; see also Marcus Cable Assocs., L.P. v.
Krohn, 90 S.W.3d 697, 705 (Tex. 2002) (explaining that the supreme court’s
holding in San Antonio & A.P. Ry. Co. was based in part on the telephone and
telegraph comprising “two different means of accomplishing the same
19
communicative purpose”). Like telegraphs and telephones, traditional media
and the internet can exist as two different means of accomplishing the same
communicative purpose.
Fourth, various courts outside of our jurisdiction have recognized the
internet (either implicitly or explicitly) as a type of nontraditional electronic
media. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d
1258, 1261 (10th Cir. 2008) (noting that advertisements occurred in “various
print, online, and television media”), cert. denied, 129 S. Ct. 1006 (2009);
Belo Corp., 512 F.3d at 144 (explaining that while there are differences
between print media and the internet, “the similarities between the two media
support application of a consistent rule”); Gaeth v. Deacon, 964 A.2d 621, 627
(Me. 2009) (stating that “an increasingly greater portion of the population
obtains more of its information through television, the Internet, and other
electronic media”); see also Ostergren v. McDonnell, No. 3:08cv362, 2008 WL
3895593, at *9 n.3 (E.D. Va. Aug. 22, 2008) (opining that “it might be said
that the [i]nternet has taken over the role of traditional print media. It can
hardly be contested that there is an ongoing shift away from traditional print
media toward the internet”).
Fifth, appellees have not provided any sufficient reason to distinguish
internet communicators from other electronic or print media under section
20
51.014(a)(6). Appellees’ proposed rule—that an internet author could never
qualify as a member of the media under that section—would make as little
sense as an inverse rule that a print author (such as someone distributing their
own photocopied musings) would always qualify as such.
Sixth, recent legislative action supports Kaufman’s status as a member
of the media through his internet publications. In adding provisions related to
a testimonial privilege for journalists to the civil practice and remedies code in
April 2009, the Texas legislature broadly defined “news medium” as
a newspaper, magazine or periodical, book publisher, news agency,
wire service, radio or television station or network, cable, satellite,
or other transmission system or carrier or channel, or a channel or
programming service for a station, network, system, or carrier, or
an audio or audiovisual production company or Internet company
or provider, or the parent, subsidiary, division, or affiliate of that
entity, that disseminates news or information to the public by any
means, including:
(A) print;
(B) television;
(C) radio;
(D) photographic;
(E) mechanical;
(F) electronic; and
(G) other means, known or unknown, that are accessible to the public.
21
Act of April 30, 2009, 81st Leg., R.S., H.B. 670, § 1 (to be codified at Tex.
Civ. Prac. & Rem. Code Ann. § 22.021(3)) (emphasis added). Front Page
Magazine is clearly both electronic and accessible to the public; it would
therefore qualify as a “news medium” under the statute, and Kaufman would
qualify as a contributor to that medium. See id.
Finally, permitting Kaufman to challenge the trial court’s denial of his
summary judgment motion through this interlocutory appeal promotes one of
the objectives of section 51.014(a)(6)—it allows us to consider and sort out
appellees’ defamation claims before this case enters the time-consuming and
expensive trial phase. See TSM AM-FM TV, 969 S.W.2d at 451.
Rather than using appellees’ exclusive standard, we conclude that an
internet author’s status as a member of the electronic media should be
adjudged by the same principles that courts should use to determine the
author’s status under more traditional media. In other words, we hold that a
person who communicates facts or opinions through the internet is entitled to
appeal under section 51.014(a)(6) when that 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
22
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.
We do not hold, therefore, that everyone who communicates on the
internet would qualify as a member of the electronic media under section
51.014(a)(6). Our decision that an internet communicator may qualify as a
member of the media under certain circumstances is strengthened by recent
developments in federal law. Specifically, a federal statute related to the fee
charged to media for federal agencies’ disclosure of public information indicates
that such media includes any
person or entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. In this clause, the term “news” means information that
is about current events or that would be of current interest to the
public. Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of
“news”) who make their products available for purchase by or
subscription by or free distribution to the general public. These
examples are not all-inclusive. Moreover, as methods of news
delivery evolve (for example, the adoption of the electronic
dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be
news-media entities.
5 U.S.C.A. § 552(a)(4)(A)(ii) (West Supp. 2009) (emphasis added); see also
Elec. Privacy Info. Ctr. v. Dep’t of Def., 241 F. Supp. 2d 5, 15 (D.D.C. 2003)
23
(finding that a publisher of a biweekly electronic newsletter qualified as a media
entity).
Because we conclude that Kaufman’s extrinsic notoriety (through his
appearances on television),25 his substantial readership, the inherent public
concern in the terrorism issues he reports and opines on, and his journalistic
experience would all favor his qualification as a media defendant under section
51.014(a)(6) if he had reported his article on Muslim Family Day through
traditional media, we hold that he likewise qualifies as a media defendant
although the article was published on the internet. Thus, we hold that under
section 51.014(a)(6), we have jurisdiction over his interlocutory appeal, and we
deny appellees’ motion to dismiss the appeal.
25
… The Houston (Fourteenth) Court of Appeals has noted that the
legislative history of section 51.014(a)(6) indicates that the section should
cover individuals who “express their opinions on radio or television programs.”
Quebe v. Pope, 201 S.W.3d 166, 170 n.5 (Tex. App.—Houston [14th Dist.]
2006, pet. denied).
24
The Propriety of the Trial Court’s Summary Judgment Decision
As noted above, Kaufman challenges various aspects of the trial court’s
order denying his traditional summary judgment motion. Among his arguments,
Kaufman contends that appellees’ defamation claims are barred as a matter of
law because his article and his graphic did not “concern” them. 26
Standards of review
The standard of review for denial of a summary judgment is the same as
for the granting of a summary judgment. Wethington v. Mann, 172 S.W.3d
146, 148 (Tex. App.—Beaumont 2005, no pet.); Associated Press v. Cook, 17
S.W.3d 447, 451 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (deciding an
interlocutory appeal filed under section 51.014(a)(6)). In a summary judgment
case, the issue on appeal is whether the movant met the summary judgment
burden by establishing that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of
26
… Kaufman therefore urges through a title in his brief that appellees lack
standing, but in the body of his brief and in his reply brief, he also specifically
contends that because his article and graphic did not concern appellees, they
cannot satisfy the elements of their defamation claims as a matter of law, and
his motion for summary judgment should therefore have been granted.
Kaufman likewise asserted in the trial court that appellees’ failure to sufficiently
connect any of his statements to them resulted in both their lack of standing
and in their inability to establish the elements of their defamation claims.
25
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The
burden of proof is on the movant, and all doubts about the existence of a
genuine issue of material fact are resolved against the movant. Sw. Elec.
Power Co., 73 S.W.3d at 215.
When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s
position will not be considered unless it is uncontroverted. Great Am. Reserve
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004). Once the defendant produces sufficient evidence to establish the right
to summary judgment, the burden shifts to the plaintiff to come forward with
competent controverting evidence raising a genuine issue of material fact with
regard to the element challenged by the defendant. Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
The requirement of appellees’ defamation claims that Kaufman’s statements
“concerned” them
26
Whether statements are defamatory is initially a question for a court to
decide. See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 155 (Tex. 2004),
cert. denied, 545 U.S. 1105 (2005). Questions regarding defamation liability
should be submitted to a jury only where a publication is of ambiguous or
doubtful import. See id.
To maintain their defamation claims, appellees are required to show that
Kaufman published a defamatory statement that “concerned” them.27 See
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 429 (Tex. 2000);
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied,
526 U.S. 1051 (1999); Fox Entm’t Group, Inc. v. Abdel-Hafiz, 240 S.W.3d
524, 531 (Tex. App.—Fort Worth 2007, pet. denied) (op. on reh’g). To do so,
they must demonstrate that Kaufman’s article was specifically directed towards
them. Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex.
App.—Austin 2007, pet. denied) (citing Rosenblatt v. Baer, 383 U.S. 75, 81,
86 S. Ct. 669, 673 (1966)).
27
… This requirement applies to common law defamation claims and also
to libel claims brought under chapter 73 of the civil practice and remedies code;
chapter 73 incorporates “a defamation” into its definition of libel. See Tex. Civ.
Prac. & Rem. Code Ann. § 73.001; Pisharodi v. Barrash, 116 S.W.3d 858, 861
(Tex. App.—Corpus Christi 2003, pet. denied) (listing the “concerning”
requirement among the elements of a libel claim).
27
In other words, “[i]n order to entitle one to maintain an action for an
alleged defamatory statement, it must appear that he is the person with
reference to whom the statement was made.” Newspapers, Inc. v. Matthews,
161 Tex. 284, 289, 339 S.W.2d 890, 893 (1960) (holding “as a matter of law
that [the plaintiff could not] recover for libel to his person . . . for the reason
that the articles refer[red] to no person who could possibly be identified as
[him]”). It is “not necessary that the individual referred to be named if those
who knew and were acquainted with the plaintiff understand from reading the
publication that it referred to [the] plaintiff”; however, the “settled law requires
that the false statement point to the plaintiff and to no one else.” Id. at
289–90, 339 S.W.2d at 894; see Houseman v. Publicaciones Paso del Norte,
S.A. DE C.V., 242 S.W.3d 518, 525 (Tex. App.—El Paso 2007, no pet.); Ledig
v. Duke Energy Corp., 193 S.W.3d 167, 180 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (adding that whether a plaintiff is referred to in a statement is
“a question of law for the court”). A “claimed implication” is insufficient to
“concern” a defamation plaintiff when it is not consistent with the “plain
language” and the “full import” of a defendant’s statement. Matthews, 161
Tex. at 290, 339 S.W.2d at 894.
Appellees are not required to prove that Kaufman intended to refer to
them for his statements to have “concerned” them. Houseman, 242 S.W.3d
28
at 525. Instead, a “defamatory communication is made concerning the person
to whom its recipient correctly, or mistakenly but reasonably, understands that
it was intended to refer.” Id. at 525–26 (affirming a trial court’s decision to
grant summary judgment for the defendant in a defamation case by concluding
that although “some actual readers [may have been] mislead[,] . . . a
hypothetical reasonable reader would not be”). In other words, as the Texas
Supreme Court explained in Isaacks, the elements of a defamation claim are
analyzed through objective standards:
the hypothetical reasonable person—the mythic Cheshire cat who
darts about the pages of the tort law—is no dullard. He or she
does not represent the lowest common denominator, but
reasonable intelligence and learning. . . . The person of “ordinary
intelligence” . . . is a prototype of a person who exercises care and
prudence, but not omniscience, when evaluating allegedly
defamatory communications.
The appropriate inquiry is objective, not subjective. . . .
. . . Intelligent, well-read people act unreasonably from time
to time, whereas the hypothetical reasonable reader, for purposes
of defamation law, does not. . . . [C]ourts must analyze the words
at issue with detachment and dispassion, considering them in
context and as a whole, as the reasonable reader would consider
them.
Isaaks, 146 S.W.3d at 157–58 (citations omitted) (emphasis added); see also
Provencio v. Paradigm Media, Inc., 44 S.W.3d 677, 681 (Tex. App.—El Paso
29
2001, no pet.) (explaining that “[a]llegedly defamatory statements must be
construed as a whole, in light of surrounding circumstances”).
Analysis
Kaufman’s article, as quoted above, almost exclusively regarded ICNA
(which is not a party to the defamation claims against Kaufman), its activities,
its sponsorship of Muslim Family Day, and its alleged connections to terrorist
groups and radical projects. To indicate its focus, the article (with emphasis
added)
• refers to “a radical Muslim Organization” that will “invade”
Six Flags;
• regards ICNA alone as the organization that donated to
Hamas;
• states that members of ICNA will “embark on Arlington . . .
for their Muslim Family Day,” explains that the “danger that
the Islamic Circle of North America poses . . . is clear,” and
contains further identifiers such as “this group,” “the group,”
“its message,” “its website,” “its youth wing,” and “the
sponsoring organization,” to restrict the article’s import to
ICNA; and
• contains only one reference to any other sponsor of Muslim
Family Day—IANT—which also did not pursue claims against
Kaufman.
Likewise, the text accompanying Kaufman’s graphic (which linked to his article)
stated, “Six Flags Over Texas opens its doors to a group with ties to terror.”
30
Neither Kaufman’s article nor his graphic named any of appellees’
organizations. However, appellees contend that Kaufman’s article references
them in its first paragraph because it states that “those involved with this
group’s event, Muslim Family Day, may very well have found an original and
appealing way to spread anti-Western hatred.” The context of the statement
clearly indicates that “this group” is ICNA, not any of the appellees, and for the
following reasons, we cannot agree with appellees that a reasonable reader
would equate “those involved” to their organizations merely because they were
tacitly incorporated 28 as sponsors of the event on a promotional flyer.
First, “those involved” is modified by “this group,” and the statement is
therefore reasonably read to limit its inference to those individuals attending the
event under invitation or direction from ICNA. Second, even if a reasonable
reader could attribute a more expansive meaning to “those involved,” that
meaning would be too broad to encompass only appellees’ organizations.
See Matthews, 161 Tex. at 289–90, 339 S.W.2d at 894. For instance, “those
involved” with the Muslim Family Day event in general could extend to any of
the “halal food vendors” mentioned in the article, the employees performing the
Bugs Bunny and Friends parade that the article referenced, Six Flags
28
… Again, the flyer globally included all DFW mosques and Islamic
centers as the event’s sponsors.
31
management, or any patron who became interested and participated in the
event’s activities upon arriving at the amusement park that day.29 There is
simply no indication to a reasonable reader of Kaufman’s article that “those
involved” meant the sponsors of the event other than ICNA or IANT, because
the article did not inform the reader that there were any such other sponsors. 30
Finally, reading that phrase as appellees assert it should be read in isolation
from the rest of Kaufman’s article weighs against our task to read the article as
a whole, and within its full context.31 See Isaaks, 146 S.W.3d at 157;
Provencio, 44 S.W.3d at 681.
Appellees also contend that the term “those groups” in the article’s
penultimate paragraph “concerns” them. That paragraph stated,
ICNA’s Muslim Family Day that will occur on October 14, 2007 is
nothing but a charade, created to spread hatred, but veiled in a
way to make the sponsoring organization look harmless. Six Flags
will play host to this dangerous farce. If events, such as these, are
allowed to continue, more and more Americans could become
29
… Appellees represent in their brief that most of the visitors to Six Flags
on the day of the event were not Muslims.
30
… In fact, portions of the article would signal to a reasonable reader that
there were no other sponsors of the event. For instance, the article states that
ICNA “runs” its family entertainment events and relates that it “rent[s] out” the
amusement parks for such events.
31
… As is indicated above, the majority of Kaufman’s article did not
concern Muslim Family Day at all; rather, it concerned ICNA’s relation to
terrorist individuals and groups and ICNA’s internet activities.
32
desensitized to those groups—fifth columns within our borders that
wish to do us harm. It is up to those concerned to speak out
against these travesties that threaten our way of life. [Emphasis
added.]
In context, we conclude that a reasonable reader would restrict the meaning of
“those groups” to groups who share the same allegedly harmful goals that ICNA
maintains, rather than to unnamed co-sponsors of the Six Flags event,
especially in light of the reference to the “sponsoring organization.”
Finally, appellees rely on authority regarding defamation of a group to
contend that Kaufman’s statements “concerned” them, analogizing his
statements to those described in Sellards v. Express-News Corp., 702 S.W.2d
677 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). In Sellards, the plaintiff
was one of four individuals involved in a one-car accident that killed two of the
individuals. Id. at 678. The first two of three articles in a newspaper about the
accident referred to drug use as a possible cause—one such article stated that
the accident could have been a “drug-induced suicide.” Id. The plaintiff sued
the newspaper, contending that the “drug-induced suicide” reference could be
read to suggest that every occupant in the vehicle was under the influence of
drugs and that all the occupants intended to commit suicide. Id. at 678–79.
In reversing summary judgment granted in favor of the newspaper, the San
Antonio Court of Appeals held that although
33
the article did not specifically state [the plaintiff] was involved in
drugs or suicide, the statement, as written, could be taken to refer
to any or all of the passengers. When a group is named and the
plaintiff is a readily identifiable member of the group, a cause of
action for defamation exists if those who know and are acquainted
with the plaintiff understand the article refers to the plaintiff.
Id. at 680.
We do not agree with appellees that the Sellards’ holding affects our
resolution of this case. Unlike the plaintiff in Sellards, appellees were never
named in any of Kaufman’s publications, and neither was any particular
individual or “group,” such as the group of four individuals involved in the
Sellards accident. Rather, Kaufman’s publications (including his article, his
graphic, and his protest sign) only referred to two specific entities (ICNA and
IANT); they never referred to any group of sponsoring organizations of which
appellees’ organizations were identifiable members. Also, appellees have not
cited any cases that apply group defamation theories to plaintiffs that are
themselves groups, rather than individuals.
For all of these reasons, we hold that, viewing Kaufman’s statements in
his article and his graphic, as a whole and with their full import, a reasonable
reader who was acquainted with appellees would not view Kaufman’s
34
statements as “concerning” them.32 See Matthews, 161 Tex. at 289–90, 339
S.W.2d at 893–94 (explaining that it is “not necessary that the individual
referred to be named if those who knew and were acquainted with the plaintiff
understand from reading the publication that it referred to [the] plaintiff,” but
the “settled law requires that the false statement point to the plaintiff and to
no one else”); Houseman, 242 S.W.3d at 525–26 (affirming a summary
judgment for the defendant because a hypothetical reasonable reader would not
have understood comments as having concerned the plaintiff).
Because appellees were required to show that Kaufman’s statements
“concerned” them to maintain their defamation claims, because Kaufman
moved for summary judgment on the ground that the statements did not,
because Kaufman has argued on appeal that they did not, and because we
conclude that they did not, we hold that the trial court improperly denied
Kaufman’s traditional summary judgment motion (which specifically challenged
32
… Appellees assert in their brief that Kaufman’s “Six Flags Over
Terrorists” sign also “concerned” them. Neither appellees’ pleading nor their
summary judgment motion focused on Kaufman’s protest sign as a
communication from which they based their defamation claims. In the
“Summary Judgment Sought” portion of their motion, they limited the issues
on which they sought judgment to those related to Kaufman’s ”September 28,
2007 ‘article’ and ‘graphic.’” Also, in the context of Kaufman’s article that
preceded Kaufman’s protest and the display of the sign, we conclude that a
reasonable reader of the sign would associate it with Kaufman’s criticism of
ICNA and IANT, and not with appellees’ groups.
35
the “concerning” element), and we sustain his issue regarding the denial of his
motion.33
Conclusion
Having denied appellees’ motion to dismiss this appeal and having
sustained Kaufman’s issue regarding the trial court’s denial of his motion for
summary judgment, we reverse the trial court’s order denying his motion and
render judgment in his favor. See Tex. R. App. P. 43.2(c), 43.3; City of
Cresson v. City of Granbury, 245 S.W.3d 61, 64–65 (Tex. App.—Fort Worth
2008, pet. denied) (op. on reh’g).
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, WALKER and MEIER, JJ.
DELIVERED: June 25, 2009
33
… Because we have reached this conclusion as a matter of law, we
decline to address Kaufman’s alternate but related contention that because his
statements did not “concern” appellees, they lacked standing to bring their
claims. See Tex. R. App. P. 47.4. Likewise, we need not address the other
issues raised by Kaufman relating to the merits of appellees’ defamation claims.
See id. Finally, by sustaining Kaufman’s challenge to the trial court’s denial of
his summary judgment motion and rendering judgment in his favor, we do not
express any opinion as to the merit or truthfulness of his article at issue.
36