Opinion issued September 17, 2013.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00660-CV

———————————

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 5, DAN 

SCHLADEMAN, AND SUSAN STRUBBE, Appellants

V.

PROFESSIONAL JANITORIAL SERVICE OF HOUSTON, INC., Appellee

On Appeal from the 61st District

Harris County, Texas

Trial Court Case No. 2007-27181

O P I N I O N

A labor union, Service Employees International Union Local 5, and two of 

its officers, Dan Schlademan and Susan Strubbe, bring this interlocutory appeal 

from the trial court’s denial of their motion for summary judgment on Professional 
2

Janitorial Service of Houston, Inc.’s defamation, business disparagement, and 

tortious interference claims. We dismiss the appeal as outside the scope of our 

interlocutory jurisdiction.

Background

PJS, a local janitorial services company, brought this defamation case 

against the union after PJS became the target of the union’s “Justice for Janitors” 

campaign. PJS alleges that, as a result of its refusal to agree for its employees to be 

represented by the union outside of a secret ballot election sanctioned by the 

National Labor Relations Board, the union began publishing defamatory 

statements about PJS to its customers, tenants of buildings cleaned by PJS, and 

other third parties. The union published its statements about PJS on the union’s

website and in flyers, handbills, letters, reports, emails, newsletters, and speeches. 

Most of the union’s statements accused PJS of violating wage-and-hour and other 

labor laws. The union’s admitted goal in publishing these accusations to PJS’s 

customers and others was to cause PJS to lose business to union contractors.

According to PJS, it lost more than one dozen accounts due to the union’s 

publications.

The union moved for summary judgment on PJS’s claims, alleging that it 

was entitled to judgment as a matter of law because PJS could not show that the 

union made the statements that are the subject of the lawsuit with “actual malice”
3

and because many, if not all, of the statements are nonactionable statements of 

opinion. The trial court denied the motion, and this interlocutory appeal followed.

Interlocutory Jurisdiction

PJS initially questions whether we have jurisdiction to hear this appeal 

because the trial court’s denial of the union’s motion for summary judgment is an 

interlocutory order, not a final judgment. As a general rule, an appeal may be taken 

only from a final judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 

(West Supp. 2012); Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). 

The legislature, however, can create exceptions to the general rule by statutorily 

authorizing appellate jurisdiction over certain interlocutory orders. See Ogletree v. 

Matthews, 262 S.W.3d 316, 319 n.1 (Tex. 2007) (“Texas appellate courts have 

jurisdiction only over final orders or judgments unless a statute permits an 

interlocutory appeal.”) (citation omitted). Section 51.014 of the Civil Practices and

Remedies Code contains several such specific grants of jurisdiction over appeals 

from interlocutory orders. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West 

Supp. 2012); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). 

The union relies on section 51.014(a)(6) of the CPRC as conferring 

interlocutory jurisdiction in this case. That section permits an interlocutory appeal 

from an 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 
4

print media, acting in such capacity, or a person whose 

communication appears in or is published by the electronic or print 

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[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). Thus, interlocutory 

jurisdiction arises under section 51.014(a)(6) when three criteria are met: (1) the 

order appealed from is a denial of a motion for summary judgment; (2) the motion

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 media”; and (3) 

the claim or defense arises under the free speech or free press provisions of the 

United States Constitution,

1 the Texas Constitution,2 or Chapter 73 of the CPRC.3

See id. 

PJS challenges the second criterion, asserting that the union is not within the 

class of persons contemplated by the statute. Cf. Tex. A & M Univ. Sys. v. 

 1 The United States Constitution prohibits Congress from making any law 

“abridging the freedom of speech, or of the press.” U.S. CONST. amend. I. 

2 The Texas Constitution provides that “[e]very person shall be at liberty to speak, 

write or publish his opinions on any subject, being responsible for the abuse of 

that privilege; and no law shall ever be passed curtailing the liberty of speech or of 

the press.” TEX. CONST. art. I, § 8. 

3 Chapter 73 defines the required elements of a libel action as well as certain 

privileged matters and defenses for members of the media. See TEX. CIV. PRAC.

& REM. CODE ANN. §§ 73.001, .002, .004, .006 (West 2011). It additionally 

provides that truth is a defense in a libel action. Id. § 73.005.
5

Koseoglu, 233 S.W.3d 835, 842−43 (Tex. 2007) (noting that section 51.014(a)(6) 

“can only be read as allowing appeals by members of the media ‘or a person whose 

communication appears in or is published by’ the media,” and that “[n]o other 

person would typically have standing to appeal the denial of ‘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 or is published by the 

electronic or print media’”) (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(6)). The union responds that it is both a member of the media and a 

person whose communication appeared in or was published by the media.4 We 

address each argument in turn.

A. Standard of review

We review issues of statutory construction de novo. Tex. Lottery Comm’n v. 

First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Our primary 

objective in construing statutes is to give effect to the legislature’s intent. Id.

(citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.

2009)). “We use definitions prescribed by the Legislature and any technical or 

particular meaning the words have acquired.” City of Rockwall v. Hughes, 246 

S.W.3d 621, 625 (Tex. 2008). Otherwise, we construe the statute’s words 

according to their plain and common meaning unless a contrary intention is 

 4 The individual defendants do not assert that they are members of the media.
6

apparent from the context or such a construction leads to absurd results. Id.; see 

Tex. Lottery Comm’n, 325 S.W.3d at 635 (“We rely on the plain meaning of the 

text as expressing legislative intent unless a different meaning is supplied by 

legislative definition or is apparent from the context, or the plain meaning leads to 

absurd results.”); Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex. 2010) 

(“Presuming that lawmakers intended what they enacted, we begin with the 

statute’s text, relying whenever possible on the plain meaning of the words

chosen.”) (citations omitted); Fitzgerald v. Advanced Spine Fixation Sys., 996 

S.W.2d 864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the 

Legislature tries to say what it means, and therefore the words it chooses should be 

the surest guide to legislative intent”). We consider the statute in its entirety and 

presume the legislature intended a just and reasonable result when it enacted the 

statute. City of Rockwall, 246 S.W.3d at 626.

Because section 51.014 is in derogation of the general rule that only final 

judgments are appealable, we strictly construe it. See CMH Homes v. Perez, 340 

S.W.3d 444, 447 (Tex. 2011) (“We strictly apply statutes granting interlocutory 

appeals because they are a narrow exception to the general rule that interlocutory 

orders are not immediately appealable.”); Jennings v. WallBuilder Presentations, 

Inc. ex rel. Barton, 378 S.W.3d 519, 523 (Tex. App.—Fort Worth 2012, no pet.) 

(“By the rule of strict construction, ‘it is not meant that the statute shall be 
7

stintingly or even narrowly construed, but it means that everything shall be 

excluded from its operation which does not clearly come within the scope of the 

language used.’”) (quoting Norman J. Singer & J.D. Shambie Singer, 3 Statutes 

and Statutory Construction, § 58:2, at 110 (7th ed. 2008)).

B. “[M]ember of the electronic or print media”

The union asserts that it is a “member of the electronic [ ] media” on the 

basis of its Internet websites, which the union likens to traditional newspapers 

because the websites “are managed by persons with journalism backgrounds, are 

directed to a broader audience than just [the union’s] members, publish articles and 

commentary on general political topics, and receive over 4000 readers a day.” 

Whether an organization’s online presence qualifies it as a media defendant under 

section 51.014(a)(6) is a matter of first impression in this Court. 

1. Not every person who communicates over the Internet is a 

“member of the electronic [ ] media” under section 51.014(a)(6)

Neither section 51.014 nor any other provision of the CPRC defines the term 

“electronic [ ] media” or delineates who is a “member of the electronic [ ] media.” 

We therefore consider the plain and common meaning of the words used. See City 

of Rockwall, 246 S.W.3d at 625–26. 

The words “electronic” and “media” are common words that are used 

frequently in everyday conversation and writing. A well-known dictionary defines

“electronic” to describe “the electronic transmission or storage of information, as 
8

by television or computer.” OXFORD AMERICAN DICTIONARY 1783 (6th ed. 2007). 

“Media” refers to “[t]he main means of mass communication . . . , esp. 

newspapers, radio, and television” and is commonly used in the plural to define

“the reporters, journalists, etc., working for organizations engaged in such 

communication.” Id. at 1729; accord MERRIAM-WEBSTER’S COLLEGIATE 

DICTIONARY 770 (11th ed. 2003) (defining “media” as “members of the mass 

media” and noting that “media” is popularly used “in references to agencies of 

mass communication”); AMERICAN HERITAGE DICTIONARY OF THE ENGLISH 

LANGUAGE 841 (4th ed. 2000) (stating that “media” means “all the means of 

communication, as newspapers, radio, and TV, that provide the public with news, 

entertainment, etc., usually along with advertising”). The word media is often used 

as a “shortened form of communications media,” BRYAN A. GARNER, A Dictionary 

of Modern Legal Usage 570 (3d ed. 2011) (emphasis omitted), and as a synonym 

for the “press.” See, e.g., MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 983

(11th ed. 2003) (defining “press” as “the gathering and publishing or broadcasting 

of news”; “newspapers, periodicals, and often radio and television broadcasting”; 

and “news reporters, publishers, and broadcasters”); AMERICAN HERITAGE 

DICTIONARY OF THE ENGLISH LANGUAGE 841 (4th ed. 2000) (defining “press” as 

“the collecting and publishing or broadcasting of news; journalism in general[;] 

[t]he entirety of media and agencies that collect, publish, transmit, or broadcast the 
9

news; [t]he people involved in the media, as news reporters, photographers, 

publishers, and broadcasters”); BLACK’S LAW DICTIONARY 1304 (9th ed. 2009) 

(defining press as “the news media; print and broadcast news organizations 

collectively”). 

That Internet websites fall within the broadest of these definitions as an

electronic “means of mass communication” is clear. Described generally, the 

Internet is an international network of interconnected computers that enables 

millions of people to communicate with one another in cyberspace and to access 

vast amounts of information from around the world. See Reno v. Am. Civil 

Liberties Union, 521 U.S. 844, 850, 117 S. Ct. 2329, 2334 (1997). It is a “platform 

from which to address and hear from a worldwide audience of millions of readers, 

viewers, researchers, and buyers.” Id. at 853, 117 S. Ct. at 2335.5 “Any person or 

organization with a computer connected to the Internet can ‘publish’ information.” 

Id. Large companies, small organizations, and individual users alike publish on 

Internet websites, which are “the equivalent of individualized newsletters about 

that [company, organization, or] person [and] are available to everyone on the 

[Internet].” Id. at 853 n. 9, 117 S. Ct. at 2335 n.9. The various types of Internet 

 5 The United States Supreme Court described the Internet as being “comparable, 

from the readers’ viewpoint, to both a vast library including millions of readily 

available and indexed publications and a sprawling mall offering goods and 

services.” Reno, 521 U.S. at 853, 117 S. Ct. at 2335−36. From the speakers’ point 

of view, the Internet “constitutes a vast platform from which to address . . . a 

worldwide audience of millions of readers, viewers, researchers, and buyers.” Id. 
10

websites include corporate websites, e-commerce websites, forum websites, news 

websites, political websites, religious websites, school websites, blogs, and social 

networking sites such as Facebook and Twitter, as well as sites that provide 

webmail service. See Wikipedia, The Free Encyclopedia, Website, 

http://en.wikipedia.org/wiki/Website (last visited September 10, 2013).6

We agree with the union that a person (or, in this case, an organization) 

should not be deprived of the benefit of an interlocutory appeal under section 

51.014(a)(6) simply because he communicates online. It is undisputed that 

newspapers, television networks, radio stations, and the journalists, reporters, 

publishers, and broadcasters who publish in print or over airwaves are members of 

the electronic or print media. Such entities and persons frequently have an online 

presence, and their character does not change simply because their 

communications are transmitted over the Internet rather than in print or on 

television or radio. 

 6 We normally do not cite Wikipedia because of concerns for its reliability as a 

source of information. See Bing Shun Li v. Holder, 400 Fed. Appx. 854, 856 n.4 

(5th Cir. 2010) (discussing reasons courts are reluctant to look to Wikipedia as 

authority). We do so in this limited circumstance because Wikipedia’s description 

of the various types of Internet websites incorporates matters of common 

knowledge of which we are permitted to, and do, take judicial notice. See TEX. R.

EVID. 201(f) (providing that “[j]udicial notice may be taken at any stage of the 

proceeding”); Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Texas, 878

S.W.2d 598, 600 (Tex. 1994) (“A court of appeals has the power to take judicial 

notice for the first time on appeal”).
11

But section 51.014(a)(6) cannot be read to permit everyone who 

communicates on the Internet to appeal the denial of a summary judgment based in 

whole or in part upon a claim or defense arising under the free speech or free press 

clauses of the United States and Texas Constitutions or Chapter 73 of the CPRC. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). Such would be an absurd 

reading of the statute, would render meaningless the statute’s express language 

limiting the class of persons who may appeal to “members of the electronic [ ]

media,” and would run afoul of the Texas Supreme Court’s instruction to strictly 

construe statutes granting interlocutory appeals. See id. (emphasis added); see also 

CMH Homes, 340 S.W.3d at 447 (applying rule of strict construction); Tex. A & M. 

Univ. Sys., 233 S.W.3d at 842−43 (acknowledging that section 51.014(a)(6) 

applies only to limited class of persons); Michael Hadley, The Gertz Doctrine and 

Internet Defamation, 84 VA. L. REV. 477, 487 (1996) (concluding that “most 

speakers on the Internet could not properly be described as the ‘press.’”). We

therefore read the statute to draw a line between the “members of the electronic [ ]

media” and others who comment on the news or political or social issues over the 

Internet, even if that line is difficult to discern.

2. The right of interlocutory appeal under section 51.014(a)(6) 

depends on who speaks, not on how they speak

In asserting a right to interlocutory appeal under section 51.014(a)(6), the 

union relies heavily on the importance of Internet publications in educating and 
12

persuading the public.7 But the legislature did not premise a section 51.014(a)(6)

appeal solely on the importance of the “free and untrammeled expression on 

matters of public concern or interest,” see Huckabee v. Time Warner Entm’t Co. 

L.P., 19 S.W.3d 413, 421 (Tex. 2000) (quoting Casso v. Brand, 776 S.W.2d 551, 

557 (Tex.1989)), or the assurance of the “unfettered interchange of ideas for the 

bringing about of political and social changes desired by the people.” New York 

Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S. Ct. 710, 720 (1964). Rather, the 

right to interlocutory appeal is tied expressly to the speaker’s identity, i.e., his or 

her status as a “member of the electronic [ ] media.” TEX. CIV. PRAC. & REM. CODE 

ANN. § 51.014(a)(6) (emphasis added).

Although most of this State’s section 51.014(a)(6) jurisprudence involves 

parties we would characterize as traditional media―newspapers, television

networks, or radio stations―at least two Texas courts have explored the extent to 

which Internet authors may be “members of the electronic [ ] media.” See Hotze v. 

Miller, 361 S.W.3d 707, 711−12 (Tex. App.—Tyler 2012, pet. denied); Kaufman 

 7 In New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S. Ct. 710, 718 (1964)—

a seminal case on defamation and the First Amendment—the United States 

Supreme Court offered a similar justification for extending constitutional 

protection to paid editorial advertisements in newspapers. The Court reasoned that 

editorial advertisements provide an “important outlet for the promulgation of 

information and ideas by persons who do not themselves have access to publishing 

facilities―who wish to exercise their freedom of speech even though they are not 

members of the press.” Id. at 266, 84 S. Ct. at 718.
13

v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 137−43 (Tex. App.—Fort Worth 

2009, pet. denied). We look to those opinions for guidance.

In Kaufman v. Islamic Society of Arlington, the Fort Worth Court of Appeals 

considered whether a defendant sued over the content of his Internet article was a 

“member of the electronic or print media” within the meaning of section 

51.014(a)(6). 291 S.W.3d at 137–43. The plaintiff contended that the defendant 

“merely post[ed] on the internet” and that the online magazine he wrote for, Front 

Page Magazine, was essentially the defendant’s own Internet blog. Id. at 138. The 

evidence, however, indicated that the defendant was a full-time professional 

journalist, the online magazine had a monthly readership of approximately 500,000 

people, and the defendant did not control whether his articles were published or 

how they were edited before publication. Id. The court concluded that the 

defendant was a media defendant and that his Internet article was entitled to the 

same First Amendment protection as an equivalent print article. Id. at 140−41 

(noting case law from the Fifth Circuit and Supreme Court affording protection to 

internet publications). 

In reaching its conclusion, the Kaufman court adopted a multi-factor test for 

determining whether an Internet author or publisher is a member of the electronic 

media. This test looks to “the character and text of the communication itself, its 

editorial process, its volume of dissemination, the communicator’s extrinsic 
14

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.” Id. at 142.

In Hotze v. Miller, the Tyler Court of Appeals considered whether a 

physician sued for the content of editorials he published in traditional newspapers 

and on Internet websites (including the physician’s own website) and statements he 

made in a radio broadcast was a “media defendant.” 361 S.W.3d at 711−12. 

Although the plaintiff disputed the applicability of section 51.014(a)(6) on the 

ground that the physician was “self-promoting” and not a reporter who 

disseminated news to the public, the record showed that the physician had an 

established presence online and in other print and electronic media. Id. at 711. 

While the physician self-published on two websites, he also published editorials in 

a weekly newspaper, hosted a radio broadcast, and had thirty years’ experience as a 

political writer and journalist. The court concluded that those facts were “sufficient 

to show that [the physician] was a media defendant” entitled to an interlocutory 

appeal under section 51.014(a)(6).8 Id. at 712. 

 8 The court also determined that an interlocutory appeal was permissible because 

the physician was a person whose communication appeared in or was published by 

the electronic or print media. See Hotze, 361 S.W.3d at 712. We address whether 

the union is a person whose communication appeared in or was published by the 

electronic or print media below.
15

In addition to the reasoning of our colleagues in Fort Worth and Tyler, we 

are aided in identifying speakers who are “member[s] of the electronic [ ] media” 

by the legislature’s definition of related terms―“journalist” and “news 

medium”―in section 22.021 of the CPRC, which governs a journalist’s qualified 

testimonial privilege in civil proceedings. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 22.021(2), (3) (West Supp. 2012). A “journalist” is defined as “a person, . . . who 

for a substantial portion of the person’s livelihood or for substantial financial gain, 

. . . writes . . . news or information that is disseminated by a news medium. . . .” 

Id. § 22.021(2). For purposes of the qualified privilege, “news medium” means:

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.
16

Id. § 22.021(3). In noting these definitions, we bear in mind that the 

interlocutory-appeal and journalistic-privilege statutes do not serve identical 

purposes and that the broad definition of “news medium” occurs within the context 

of a privilege that contains multiple other limitations. But we find both definitions’

emphasis on persons who or entities that report or disseminate the news as part of 

their business helpful in discerning the line we must draw in this case.

The historical context of section 51.014(a)(6) also provides some context for 

the statute’s limitation on the persons who may appeal thereunder. Cf. Ojo v. 

Farmers Group, Inc., 356 S.W.3d 421, 436 (Tex. 2011) (Jefferson, C.J., 

concurring) (explaining that courts sometimes look to legislative history, as part of 

larger societal discourse, “because it is useful to understand what options were 

available when our representatives in government enacted policy”); ANTONIN 

SCALIA & BRYAN GARNER, Reading Law: The Interpretation of Legal Texts, 388 

(West 2012) (explaining that courts sometimes look to legislative history “for the 

purpose of establishing linguistic usage―showing that a particular word or phrase 

is capable of bearing a particular meaning”). When section 51.014(a)(6) was 

enacted, the Legislature could not have contemplated that the individual website

hosts would be treated as “member[s] of the electronic [ ] media” entitled to an 

interlocutory appeal of a summary-judgment denial. Subsection (a)(6) was added 

to the interlocutory appeal statute by the 73rd Legislature in 1993, a time in which 
17

the Internet was only beginning to enjoy widespread public use.

9 See Act of June 

18, 1993, 73rd Leg., R.S., ch. 855, § 1, 1993 Tex. Gen. Laws 3365, 3366. Our 

national search of case law predating section 51.014(a)(6)’s enactment returned 

only one case discussing the Internet. See United States v. Morris, 928 F.2d 504, 

506−11 (2d Cir. 1991) (determining defendant’s criminal liability for releasing 

Internet “worm” that caused computers at various educational and military 

institutions to crash). 

Given this historical context, it is not surprising that the proponents of 

subsection (a)(6) offered the amendment as a means to permit “a newspaper, radio 

station or television station that was sued for libel to make an immediate appeal of 

a judge’s refusal to grant a summary judgment” and spoke of the entities that 

would benefit from the section’s enactment as traditional “media compan[ies].”10

 9 See Michael Aaron Dennis, Internet, ENCYCLOPAEDIA BRITANNICA, 

http://wwww.britannica.com/EBChecked/topic/291494/Internet (last visited 

September 10, 2013) (explaining that federal legislation paved way for Internet to 

transition from special use networks to public use networks in 1993).

10 The debate surrounding section 51.014(a)(6)’s enactment was undoubtedly 

influenced by the discussion of the privileges enjoyed by various members of the 

traditional media sued for defamation in federal and state courts. See SCALIA &

GARNER, Reading Law: The Interpretation of Legal Texts, 73, 78 (observing that 

“words must be given the meaning they had when the text was adopted” and that 

“[i]f a word is obviously transplanted from another legal source, whether the 

common law or other legislation, it brings the old soil with it”). In Sullivan, the 

Supreme Court announced a constitutional privilege applicable to defamation 

claims brought by public officials in a claim arising out of a political 

advertisement in a newspaper. 376 U.S. at 279−80, 84 S. Ct. at 725–26. Three 
18

 

years later, the Court extended the privilege to claims by public figures in Curtis 

Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L.Ed.2d 1094 (1967),

another case involving a newspaper defendant. Neither case used the word media, 

but in subsequent years, the Court focused on balancing the prevention of “media 

self-censorship,” the need to protect the “news media” from liability, and 

individuals’ legitimate interest in being free from reputational injury caused by 

defamatory statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 342, 94 S. 

Ct. 2997, 3007, 3008 (1974) (stating that the result in New York Times and Curtis 

are not “justified solely by reference to the interest of the press and broadcast 

media in immunity from liability.”); Id. at 353 (Blackmun, J., concurring) 

(describing majority opinion as holding that “a State is free to define for itself the 

appropriate standard of media liability” in defamation claims by private 

individuals); Time, Inc. v. Firestone, 424 U.S. 448, 465, 96 S. Ct. 958, 970, 47 L. 

Ed. 2d 154 (1976) (Powell, J., concurring) (describing Gertz as shielding “the 

press and broadcast media from a rule of strict liability that could lead to 

intolerable self-censorship”). 

In each instance we have found the Texas Supreme Court to use the phrase “media 

defendant” before section 51.014(a)(6) was enacted, the Court used it in reference 

to traditional media. See, e.g., Cain v. Hearst Corp., 878 S.W.2d 577, 583 (Tex. 

1994) (citing Machleder v. Diaz, 801 F.2d 46, 53 (2d Cir.1986), in newspaperdefendant case for proposition that rule holding “a media defendant liable for 

broadcasting truthful statements and action because it failed to include additional 

facts that might have cast the plaintiff in a more favorable or balanced light . . . 

violates the First Amendment”); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 56 

(Tex. 1992) (holding that gag order prohibiting newspaper from publishing 

information disclosed in open court constituted “a prior restraint on a media 

defendant”); McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990) (noting that 

claims by private-figure plaintiff against television company, broadcasting 

company and broadcaster were against media defendant and therefore had to 

satisfy “constitutional considerations of free speech and free press”); Channel 4, 

KGBT v. Briggs, 759 S.W.2d 939, 940 (Tex. 1988) (describing television station 

and two reporters as media defendants); Doubleday & Co., Inc. v. Rogers, 674 

S.W.2d 751, 759 (Tex. 1984) (in case against book publisher presumed damages 

and punitive damages may be recovered against a media defendant only if actual 

malice is proved); see also WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 569 

(Tex. 1998) (considering claims by journalist who was “a media plaintiff” against 
19

House Comm. on Judicial Affairs, Bill Analysis, S.B. 76, 73rd Leg., R.S. (1993).

However, “when the text of a statute logically authorizes the application of the 

statute to a new technology or communication medium, [courts] should apply the 

statute in that way.” See Kaufman, 291 S.W.3d at 141.

Based on the criteria identified in Kaufman, the additional focus on 

journalism found in Hotze, the emphasis in CPRC sections 22.021(2) and (3) on 

the reporting or dissemination of the news, and the historical context in which 

section 51.014(a)(6) was adopted, we conclude that a person who communicates 

online qualifies as a “member of the electronic [ ] media” when the person’s 

primary business is reporting the news and they are, as the statute expressly 

provides, “acting in such capacity.”

3. Facts that aid in determining whether an Internet author’s 

primary business is reporting the news

Admittedly, it may be difficult to ascertain a person’s or entity’s primary 

business. Traditional media―persons and entities historically deriving their 

income and revenue from advertising and subscriptions―satisfy this test regardless 

of whether they publish in print, on airwaves, on the Internet, or in some 

combination of these mediums. However, additional inquiry may be required in 

cases like this one involving an entity that is not a newspaper, television network, 

 

television station media defendant that broadcast allegedly defamatory news 

reports).
20

or radio station. To the extent the issue of what constitutes a defendant’s primary 

business is disputed, we consider these facts:11

• the goods and services offered by the Internet author and the sources 

of the Internet author’s revenue; 

• 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 reporting 

information on which he or she has a business, as opposed to newsreporting, interest);

• the extent to which the Internet author has an established presence or 

reputation in traditional media;12

• the character and content of the Internet author’s communications13

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);

• 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 

 11 While we consider many of the same facts as the Kaufman court considered, we 

treat these facts as dispositive of a single issue—the defendant’s primary business. 

Thus, we do not treat them as “factors” or balance them but, instead, consider 

them in toto in determining the defendant’s primary business. 

12 Kaufman examined the author’s “notoriety outside of the parameters of the article 

. . . at issue.” 291 S.W.3d at 140. This fact involves the same type of inquiry, 

although we do not term it a “notoriety” inquiry. 

13 Kaufman examined the character and content of a single internet article. See 291 

S.W.3d at 133−34. Because section 51.014(a)(6) permits an interlocutory appeal 

by a particular party―a member of the media―and is not based solely on the 

characteristics of the communication itself, we look more broadly at the entirety of 

the union’s communications. 
21

whether journalists supervise the research and act as the primary 

authors or editors of the website content); and

• the size, nature, and diversity of the readership and whether the 

readership relies on the author to obtain news.

No one fact is dispositive; rather, the inquiry should focus on the totality of the 

circumstances. For example, traditional media outlets publish commentary and 

editorials, some of which are not objective or neutral in their viewpoints, but they 

are nevertheless members of the media. Another example: a small-town newspaper 

that no longer prints a newspaper but elects to disseminate the news online is a 

member of the media. But a person who prints and distributes one million copies of 

a flyer may not be a member of the media despite his or her breadth of readership. 

With these facts in mind, we turn to the issue of whether the union’s primary 

business is reporting. 

4. The union does not qualify as a “member of the electronic [ ]

media”

As we have already noted, the union asserts that it is a member of the 

electronic media on the basis of its websites; it does not argue that any of its other 

publications qualify it as a media defendant. The evidence contained in the 

appellate record and submitted through an additional affidavit filed with this 

Court14 establishes the following:

 14 Attached to the union’s response to PJS’s dismissal motion is the affidavit of Inga 

Skippings, the union’s National Communications Director. This affidavit was not 
22

• The union has a communications department and a National 

Communications Director.

• The National Communications Director has a journalism background, 

having been employed previously by ABCNEWS and with local 

affiliates of NBC and ABC. Some, but not all, of the union’s other 

communications staff have journalism backgrounds.

• The union’s communications department is divided into two sections: 

(1) “Traditional Media” for the union’s communications in print and 

broadcast media such as newspapers, television, and radio; and (2) 

“New Media” for the union’s websites and other social media.

• The union “publish[es] articles on-line, and seek[s] to have articles 

published in print or in other traditional media, regarding paying 

employees a living wage, social and economic justice, and other 

political issues.” The union strives to affect public opinion on the 

various matters of public concern, and thus the union seeks to reach 

an audience broader than its membership.

• The union’s websites sometimes “contain links to opinion, video 

presentations, speeches and news stories about [ ] janitors, and which 

feature[ ] public figures and other speakers.” 

 

presented to the trial court and is not included in the appellate record. It constitutes 

newly created evidence for the purpose of establishing this Court’s jurisdiction.

PJS did not move to strike the affidavit or assert that the case should be remanded 

to the trial court for resolution of disputed fact issues raised in the affidavit. 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) (West Supp. 2012) (“Each court of appeals may, 

on affidavit or otherwise, as the court may determine, ascertain the matters of fact 

that are necessary to the proper exercise of its jurisdiction.”); Kaufman, 291 

S.W.3d at 139 n.20; see also Lindsey v. Kline, No. 2-03-00239-CV, 2004 WL 

1699909, at *2 (Tex. App.—Fort Worth July 29, 2004, no pet.) (mem. op.) (stating

that appellate court may consider affidavit together with other evidence not 

included in appellate record to determine jurisdiction).
23

• All of the union’s websites and electronic communications together 

draw more than 4000 daily readers.

• The editorial or vetting process used to publish press releases on the 

union’s website is similar to the editorial or vetting process used by 

members of traditional media in that information is collected from 

sources and is then reviewed for accuracy and truthfulness by 

researchers and others. The union’s publications are also edited or 

reviewed by lawyers. 

• The union’s websites do not produce income or have advertising. 

PJS argues that, while these facts establish that the union has “a frequented website 

and a functioning communications department,” they do not demonstrate that the 

union is a member of the electronic media. We agree that the record does not 

establish that the union qualifies as a member of the media under 51.014(a)(6)

because it is not primarily in the business of news reporting.

We begin with a combined analysis of the first and sixth facts we utilize to 

determine if the union is primarily in the business of news reporting. The goods 

and services provided by the union include communications on matters of public 

that reach more than 4000 people daily. But the record does not establish the extent 

to which the union focuses its business on or dedicates its resources to the 

dissemination of news as opposed to the organization and representation of 

workers. The union’s National Communications Director stated that the purpose of 

the communications department was to “develop articles and other materials to 

truthfully generate the most interest in the media and increase the interest in our 
24

message.” These details of the union’s efforts to attract media attention undermine

the union’s position that it is itself a member of the media. The description also 

distinguishes the union as an entity that strives to generate news rather than report 

the news. While we agree with the union that its status as a member of the media 

should not be decided solely by the fact that its websites do not generate income, 

the union’s failure to collect subscription, advertising, or similar fees further 

distinguishes it from the traditional media. 

Turning to the second and third facts pertinent to the primary-business 

inquiry, we note that the union can only communicate through its individual staff. 

But the record does not identify any individual journalist who had a hand in 

researching, drafting, or editing the communications made the basis of PJS’s 

lawsuit and only some of the union’s communication staff has a background in 

journalism. Thus, the union has not demonstrated that the publications in question 

were authored by journalists or whether those authors have an established presence 

or reputation in other traditional media. Moreover, the only individual authors 

identified in the record are the union’s vice-president, Houston staff director, and 

two “researchers.” And none of these individuals purport to have any journalistic 

or similar experience.15

 15 This makes our case unlike the situation in Kaufman, where the court qualified the 

defendant as a media defendant based on his individual background and notoriety 
25

Considering the whole of the union’s communications under the fourth fact

in our primary-business inquiry, we conclude that the reporting by the union is not 

substantially similar to the reporting by traditional media. The union admits that its 

communications are published for reasons other than the dissemination of news to 

the public; the union aims to incite action or to sway public opinion through its 

websites. The affidavits submitted in support of the union’s summary-judgment 

motion universally describe the union’s communications as part of a “Justice for 

Janitors” publicity campaign. The vice-president who had “some supervisory 

duties” over the campaign described the campaign as “trying to organize and 

improve the working conditions of janitors, and similar workers, employed in 

cleaning commercial offices and other buildings.” According to the vice-president, 

“all” of the communications at issue here were “undertaken for the purpose of 

trying to improve the terms and conditions of these workers’ employment” and 

“occurred in what is known as a ‘Labor Dispute,’ or as part of a campaign or 

controversy concerning the terms, tenure or conditions of employment or 

concerning the association or representations of persons in . . . changing or seeking 

to arrange terms or conditions of employment of PJS’s employees.” These are not 

activities associated with the traditional media. 

 

apart from the article at issue and based on the Internet publication’s independent 

existence as a news medium with a broad readership. 291 S.W.3d at 139–43.
26

The union’s campaign includes flyers and newsletters and protests “to alert 

employees, customers, tenants and persons that do business with PJS of [the 

union’s] opinions and views on the plight of “PJS’s janitors. “As part of that 

campaign, the union’s organizers make contacts” with PJS’s employees, frequently 

by meeting them as they enter or leave work, and urge them to join the union. The 

union also sends “delegations, which often include the workers themselves, to 

make presentations to political leaders, community groups, and pension funds that 

own or invest in a building cleaned by a contractor.” The vice-president further 

explained that when janitors “provide information that indicates that the employer 

is engaged in unfair or illegal labor or pay practices, [the union organizers] gather 

that information for use in the campaign.” A union “researcher” stated in another

affidavit that he uses information gathered from janitors to draft “the PJS 

organizing campaign” flyers and other communications. The union’s other 

communications included press releases, “reports to the public,” handbills, 

newsletters, letters, and website statements.

Although the limited evidence regarding the fifth fact in our 

primary-business inquiry establishes some similarities between the union and 

traditional media in that fact checking and multiple-party review is involved in the 

union’s editorial process, the union’s National Communications Director did not 

establish that anyone with substantial journalistic experience controls or is 
27

substantially involved in the editorial process. Journalism involves much more than 

research, editing, and vetting. This Court’s own opinions go through a similar 

editorial process and are made publicly available on our website, but this Court is 

not a member of the electronic media. 

For all these reasons, we conclude that, although the record establishes that 

the union publishes information concerning political and social issues to the public 

through its websites, the record does not establish that the union’s primary business 

is reporting the news or that it was acting in the capacity of a journalist or news 

reporter in publish its statements about PJS. Thus, the union does not qualify as a 

“member of the electronic [ ] media.” We therefore turn to the issue of whether the 

union qualifies as a “person whose communication appeared in or was published 

by the electronic or print media.” TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(6).

C. Person whose communication appeared in or was published by the 

electronic or print media

A person who is not a member of the electronic or print media may pursue 

an interlocutory appeal if its communication appeared in or was published by the 

electronic or print media. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). 

PJS argues that the union cannot make such a showing because PJS’s lawsuit is not 

based on any statement made by the union in a newspaper article or on a television 

or radio broadcast; rather, PJS’s defamation claims arise from the union’s self-
28

published statements in letters to third parties, flyers, handbills, newsletters, 

website postings, press releases, reports, and oral testimony. The union responds 

that interlocutory jurisdiction exists because at least one press release appearing on 

the union’s website and alleged by PJS to be defamatory―the June 15, 2006 press 

release entitled “New Lawsuit: Immigrant Janitors Instructed to Work ‘Off-theClock’ by Houston’s Largest Local Cleaning Firm”―was “picked up” by the 

Associated Press and re-published by a number of traditional news media outlets.

16

According to the union, PJS seeks to hold the union liable for the citations to and 

quotations from the press release in the newspaper articles and television and radio 

broadcasts covering a lawsuit filed by PJS employees for federal labor-law 

violations because those articles and broadcasts were attached to an allegedly 

defamatory “Report on Professional Janitorial Service (PJS)” authored by the 

union. We disagree.

PJS has not plead any claims based on the publication of the newspaper 

articles or television and radio broadcasts covering the lawsuit filed by PJS 

employees. Neither does PJS allege that the articles attached to the report that is 

the subject of its lawsuit are defamatory. The report contains an executive 

 16 Specifically, the union asserts that its press release formed the basis of stories 

published by the Fort Worth-Star Telegram, the Dallas Morning News, the Austin 

American-Statesman, the Houston Chronicle and broadcast by KTRH Radio and 

several television news stations. 
29

summary and sections addressing PJS’s alleged unlawful business practices and 

the federal lawsuit filed against PJS and accuses PJS of threatening and 

intimidating workers who show an interest in unionizing. PJS’s claim is that the 

statements in the report authored by the union are defamatory, not its news-article 

attachments. Moreover, the written publications from the news media outlets that 

appear in the record do not attribute the information reported to the union or 

include any official statement from the union. Nor are any union representatives 

quoted in the articles. The only persons quoted in any of the written publications 

are PJS employees and the lawyer who filed the federal lawsuit on their behalf. As 

concluded by our sister court of appeals in Houston, unattributed or nonspecific 

background information in a media publication is not worthy of the protections 

afforded by section 51.014(a)(6).17 Quebe v. Pope, 201 S.W.3d 166, 170 n.5 (Tex. 

 17 The Quebe court based its holding on legislative history, stating:

As originally proposed, the amendatory legislation, Senate Bill 76, 

applied only to members of the media. Senate Comm. on State 

Affairs, Bill Analysis, Tex. S.B. 76, 73rd Leg., R.S. (1993). Senator 

Jim Turner, the bill’s sponsor, offered an amendment that extended 

application to persons other than members of the media. In a note 

accompanying the amendment, Turner explained: “For example, it 

would cover persons who have letters or op-ed pieces published in 

newspapers or magazines or who express their opinions on radio or 

television programs.” Floor Amendment No. 2 to Tex. S.B. 76, 73rd 

Leg., R.S. (February 25, 1993). The bill was passed as amended. S.J. 

of Tex., 73rd Leg., R.S. 312 (1993). Although certainly not 

conclusive regarding legislative intent, it appears from Turner's 

comment that he would not view unattributed, nonspecific 
30

App.—Houston [14th Dist.] 2006, pet. denied). Thus, on this record, we cannot 

hold that the union’s communication “appear[ed] in or [was] published by the 

electronic or print media.” See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). 

Conclusion

Because we have concluded that the union is neither a “member of the 

electronic or print media” nor a “person whose communication appear[ed] in or 

[was] published by the electronic or print media,” the criteria for the exercise of 

this Court’s appellate jurisdiction under section 51.014(a)(6) are not satisfied. 

Accordingly, we hold that the union’s appeal falls outside the scope of our 

interlocutory jurisdiction, we grant PJS’s motion, and we dismiss the appeal.

Harvey Brown

Justice 

Panel consists of Chief Justice Radack and Justices Higley and Brown.

 

background information as worthy of the protections afforded by 

section 51.014(a)(6).

201 S.W.3d at 170 n.5.