This amicus curiae is the second friend of the court brief filed by concerned media since the June opinion in which the Supreme Court allowed a former Austin area brain surgeon to go to trial against Austin’s KEYE-TV for defamation.
Byron Neely v. Nanci Wilson, KEYE-TV is of particular interest to journalists and media companies because reliance on the third-party allegation rule has long been considered crucial to the act of gathering information and reporting events.
The rule states that a media defendant need only prove that allegations made by third parties -- such as eye witnesses, police officers, civil servant whistleblowers, etc. -- were, in fact, made and under investigation. The media defendant need not have to demonstrate the allegations themselves are substantially true.
However, the third-party allegation rule is evaluated by the courts in concert with a “substantial truth” doctrine. This doctrine requires that the article in its entirety must be considered in order to arrive at its gist. And it must also show that the alleged defamation would have to be more damaging than the truth, in order for a judge to allow the complaint to proceed to trial.
In the Morning News’ brief written by attorney Paul C. Watler of the Jackson Walker firm in Dallas, two issues are raised in the newspaper’s petition for a rehearing of the case. First, Watler argues the Supreme Court majority opinion was too narrow in its application of the substantial truth doctrine.
Unless the court withdraws this narrow application, Watler said, its future application in lower courts may have unintentional consequences.
“The opinion may lead defamation plaintiffs and lower courts to misinterpret this court’s holdings as requiring literal truth instead of substantial truth,” Watler said.
In other words, the fear of the Morning News and other news organizations is that it would not be enough for reporters to accurately report allegations involving investigations. They would also have to be able to prove the allegations are true, even before the official investigation reaches a conclusion. In most cases, that would be impossible and it would put news organizations at great risk of having to extensively litigate frivolous defamation lawsuits.
Second, Watler asked the court to clarify that the core of the substantial truth doctrine has not been altered. He asked the court to reassure the media industry that the case law upon which the third-party allegation rule stands has not been overturned.
“Though the majority rejected the third-party allegation rule, it nonetheless relied on Texas case law that supports the longstanding application of the substantial truth test,” Watler said. “As such, the court should clarify that its rejection of the third-party allegation doctrine in no way alters the court’s longstanding substantial truth jurisprudence, and accordingly, acknowledge that the cases the majority cites regarding a substantial truth analysis in the context of third-party allegations have not been overturned.”
This request for an official clarification stems from the fact that in Neely, the court gave the media industry the impression that it withdrew from McIlvain v. Jacobs. The court in Neely clarified what it said in McIlvain.
KEYE, going with the mainstream interpretation, said that in McIlvain the court said reporters just have to prove third-party allegations were made and accurately reported.
However, the June majority opinion said that in the 1990 McIlvain opinion the court found in favor of the media defendants because the “broadcast statements are factually consistent with [the government’s] investigation and its findings.” That is a much stricter standard, and it is a standard that makes Texas an outlier in the application of the third-party allegation rule.
On Thursday, Neely’s attorney, Jane Webre of Cardwell, Hart & Bennett in Austin, filed a response to KEYE’s motion for rehearing, asking the court to deny it. Webre disregarded the third-party allegation rule by pointing out that KEYE did not dispute its interpretation. Rather, KEYE focused on the narrowness of the court’s application of the substantial truth doctrine.
The central facts of Neely’s case have to do with a Texas Medical Board investigation. Neely suffered from numerous ailments and was taking a variety of prescribed medicines for pain, nausea, asthma, indigestion and depression. Two of his patients who had very adverse outcomes criticized him in the broadcast.
It was also reported that Neely was disciplined by the Medical Board for self-prescribing, after he initially had another physician order certain narcotics. Webre argued, and the court majority agreed, that the gist of the KEYE broadcast gave viewers the impression that Neely was on drugs and impaired while he was performing brain surgeries.
In fact, Webre emphasized, Neely was disciplined for self-prescribing, but not for taking the drugs. And there was no proof that he was under their influence during the performance of surgeries. However, in the dissenting opinion, then Chief Justice Wallace B. Jefferson noted that Neely was dosing before bedtime and in the morning during the time in question.
“(Wilson and KEYE) went far beyond the actual order of the Medical Board, and misstated and omitted key facts and falsely juxtaposed others,” Webre said.
KEYE contends the majority opinion applied an improper standard for assessing the substantial truth because it didn’t require that the comparative harm to Neely’s reputation be “significantly” greater from the broadcast than would have been caused by the truth, she said.
It has been Webre’s contention throughout that a more thorough reporting of the Medical Board’s investigation would have been more favorable to Neely. In her response, Webre emphasizes the board could have disciplined Neely for “excessive use of drugs,” but did not. And the board was prohibited by law from granting probation to Neely if he was “a physician who constitutes, through the practice of medicine, a continuing threat to the public welfare.”
The Supreme Court’s opinion was accompanied, however, by a spirited dissent from Jefferson, who has since retired. Two justices concurred with his dissent, which painted a very different picture of how damaging a different account of the truth could have been.
“We come, then, to the literal truth. We know the Board disciplined Neely for prescribing dangerous drugs to himself, drugs he admits taking,” Jefferson wrote. “We know that the Board ordered that Neely be supervised as a result. We know that Neely had hand tremors during a period of time in which he performed sensitive surgeries. The Board ordered psychiatric and physical evaluations that could only be tied to a concern for the safety of patients under Neely’s care. We know that several of those patients experienced bad outcomes, at least two of which alleged that he was dependent on alcohol and drugs. These facts are not gist, only truth.
“Because the broadcast did not create a different effect on the average viewer’s mind than the truth would have, I would hold that it is substantially true. I would go further. The ‘gist’ that bothers the Court is actually an inference reasonably drawn from uncontested facts,” Jefferson concluded.
Justice Eva Guzman, author of the majority opinion, argued that a major flaw in Jefferson’s dissent was it “inverts our time-honored summary judgment standard by indulging every reasonable inference and resolving every doubt against Neely.”
It is, in fact, a standard rule in judicial process -- when a trial judge is considering dismissing a case -- to give the benefit of the doubt to the plaintiff, which in this case is Neely. However, a trial judge, having reviewed the plaintiff’s complaint and after hearing argument at the motion for summary judgment stage, can throw the case out if it appears there is no reasonable basis to believe the plaintiff would win.
The Supreme Court correctly concluded that, at a minimum, the Medical Board’s order at least creates a fact issue in Neely’s favor as to whether he was disciplined for taking medications, Webre said.
“If one does endeavor to draw inferences and resolve doubts, they must be drawn and resolved in favor of Neely at this summary judgment stage,” Webre said.
Now that Webre’s response to KEYE’s motion is filed, it is up to the Supreme Court to decide whether it will rehear the case.