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Free speech or scrub from Internet? Texas court weighs right to preserve defamatory posts

They say nothing on the Internet ever really goes away, but the Texas Supreme Court is considering whether defamatory postings might be worth the effort to try.

Justices on the state's highest civil court on Thursday weighed broader questions about cyberbullying, hate speech and the First Amendment while hearing a case with far lower stakes. At issue is whether a company can be forced to remove from its website damaging personal comments about a fired Austin businessman.

Lower courts already have ruled that Robert Kinney's former company, Los Angeles-based BCG Attorney Search, can't be forced to remove the comments, even if a judge or jury eventually finds it defamed Kinney on the company's website by accusing him of running a kickback scheme. That's because defamatory speech still has protections under the law.

But Kinney's attorneys told the nine-member court that it's time for Texas law to catch up with technology.

"It was a little harder to defame someone before the Internet. Now, on my cellphone, I can walk out of here and in five minutes I can say something defamatory about somebody and hit a button, and it's there worldwide," said Martin Siegel, Kinney's attorney. "And it's potentially there for perpetuity."

Anthony Ricciardelli, an attorney for BCG, said forcing the comments to be removed would "set a dangerous precedent that will have a chilling effect on speech and may lead to a slippery slope."

The court isn't expected to make a ruling for several months.

Justices asked both sides to consider more divisive cases involving cyberbullying or hate speech — whether a court should be able to issue orders to stop online antagonists from harassing others, for instance, even if no defamation was present.

Siegel said it's time for Texas to join a "modern rule" of decisions in five other states where injunctions against defamatory speech have been granted. The Kentucky Supreme Court in 2010 ruled in a case that the future speech of a party could be restrained so long its original comments were ruled defamatory.

Michael Fertik, the CEO and founder of reputation.com, said the broader problem of defamation in the digital age needs to be addressed. He said people need to be "giving a fighting chance" and pointed to how publishers can be forced to remove defamatory material from books before additional printings.

"There's a solution in the print world for that. In the online world, there is no solution," Fertik said.

Kinney now runs another legal recruiting firm in Texas and said the damage done by the comments "isn't breaking me." Courts likely would have let his case proceed if he was seeking financial damages from his old boss instead of having the online remarks erased, but Kinney says he wants to help others in similar situations.

"Hopefully it'll be a public service," he said.

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Follow Paul J. Weber on Twitter: www.twitter.com/pauljweber

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