AUSTIN -- The argument sounds pretty straightforward at first: Someone writes a post on the internet accusing you of something you didn't do. You sue them, but even if you win, the post stays up -- pretty much forever.
"All I wanted was to get these things taken down after we proved that they're false," said Robert Kinney, who filed a lawsuit in Travis County court saying his former boss posted material on the Internet accusing him of bribery and kickbacks.
If the material is found to be defamatory, Kinney and his attorney Martin Siegel hope to convince the Texas Supreme Court to order it taken down.
"We think that's a pretty basic remedy that ought to be available to anybody when their reputation's been damaged," Siegel told reporters after Thursday's arguments before the state's nine justices.
Their decision could have an effect on everything from negative business reviews to cyber bullying. For example, think of a court ordering a bully's false statements removed.
"We need to have these sorts of remedies so that our children can feel protected," said Kinney.
Barnes' attorney Anthony Ricciardelli called the case "fundamentally a free speech case." Even if the material is deemed defamatory, Ricciardelli says prohibiting its continued and future publishing by permanently removing the post would amount to unconstitutional prior restraint of free speech. Ricciardelli said from there, it's a classic case of the slippery slope.
"It requires us giving the court power to tell people what they can and cannot say, and it's very dangerous for our free speech rights," said Ricciardelli.
It's part of a technology-driven battle over just how the First Amendment is applied to the Internet. While authors of books or newspaper articles found to be defamatory could be punished, no one would expect them to destroy every physical copy in existence. Part of the question is whether Internet posts, which can be completely removed at will, should be treated differently.
"Our remedies here in Texas ought to catch up to some of that," said Siegel. "Not in a way that restricts free speech, but in a way that reaches constitutionally unprotected speech like defamation."
The Internet's audience is potentially orders of magnitude larger, and although original posts may be removed, they can also be copied and reposted by other Internet users who may be impossible to track down. Ricciardelli said if Kinney's side wins, those users could also be held liable content they repeated or reposted.
If the material is found to be defamatory, Kinney's lawsuit seeks to prohibit its continued posting as well as material substantially similar. Siegel suggests the similarity would be confined to specific factual statements, but Ricciardelli said it could lead to a "chilling effect" on posting future material concerning the same individual or organization.
"We don't think that's a chilling effect on anybody," said Siegel. "You don't have a right to defame people and people do have a right to protect their reputations."
"The fact that this state already allows both civil damages and criminal penalties for defamation should be enough to deter you, but if you want to chance it that is your constitutional right," said Ricciardelli. "And it's simply too important of a constitutional right for the court to tell you that you can't."
Ricciardelli says technology shouldn't change the Constitution every time a new way to communicate is developed.
A ruling by the Texas Supreme Court will likely take several months. Attorneys expect a possible opinion by late summer or fall.