A Texas Supreme Court opinion in a libel case against an Austin television station involved some sleight of hand and narrow construction of law that increases the occupational risk of all Texas journalists.
A 17-page dissenting opinion by Chief Justice Wallace B. Jefferson and joined by Justices Paul Green and Debra Lerhmann, said the majority’s decision “collides violently with the First Amendment.”
In essence, the prevailing opinion written by Justice Eva Guzman narrows a news reporter’s defense of the “substantial truth” of an allegation. Jefferson said the majority reinterpreted the case law on point, McIlvain v. Jacobs to mean it “stands only for the proposition that a broadcast’s report of allegations are protected if those allegations are later proved to be true.”
“The court rejects several Texas appellate courts and the U.S. Court of Appeals for the Fifth Circuit’s interpretation of McIlvain – that when a report is merely that allegations were made and were under investigation, proof that allegations were in fact made and under investigation establishes the report’s substantial truth,” Jefferson wrote.
“Imposing liability for reporting on such issues will shield the truth, not expose it,” Jefferson continued. Citing KTRK Television v. Felder, a 1997 case, Jefferson quoted, “The media would be subject to potential liability every time it reported an investigation of alleged misconduct or wrongdoing by a private person, public official or public figure. Such allegations would never be reported by the media for fear an investigation or other proceeding might later prove the allegations untrue.”
The case at issue is Byron D. Neely v. KEYE-TV. The opinion was released June 28, 2013. After conducting Google and LexisNexis searches, this reporter found very few articles on it. News reports headlined the impact to the defendant television station and gave the impression the consequences were isolated.
There was a brief summary on Texas Supreme Court Blog, but this also understated the case.
In fact, the opinion makes new case law and changes the rules of liability for journalists throughout the state of Texas.
The Underlying Dispute:
Neely is a neurosurgeon who was disciplined by the Texas Medical Board for self-prescribing a number of powerful narcotics. In 2003, he was put on probation for three years, due to his “inability to practice medicine with reasonable skill and safety to patients, due to mental or physical condition.”
In 2004, KEYE ran a 7-minute report by Nanci Wilson that made the following pertinent statements:
- Anchor Fred Cantu asked: “If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?
- Nanci Wilson interviewed a former patient, Paul Jetton, who had filed a medical malpractice lawsuit after suffering complications from surgery. Commenting on the Medical Board’s action, Jetton said in part, “Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even let people operate machinery or drive cars when they’re when they’re taking them and this guy’s doing brain surgery on people.”
After the report, Neely’s practice collapsed and his home went into foreclosure. He sued for libel, individually and for his practice association. KEYE moved for summary judgment and the trial court granted it. The Austin court of appeals upheld the trial court.
Summary judgment is a dismissal of the lawsuit. A trial court judge is only allowed to grant summary judgment if it plainly appears there is no realistic chance – under statutory or common law – that the plaintiff can win.
The Substantial Truth Doctrine:
It is not terribly unusual for trial court judges to get reversed. But it is unusual for a court of appeals to get reversed. On what basis did the state Supreme Court reverse?
This Supreme Court has a creation of its own called The Substantial Truth Doctrine. To test the truth or falsity of a broadcast, the doctrine states:
IF A BROADCAST TAKEN AS A WHOLE IS MORE DAMAGING TO THE PLAINTIFF’S REPUTATION THAN A TRUTHFUL BROADCAST WOULD HAVE BEEN, THE BROADCAST IS NOT SUBSTANTIALLY TRUE AND IS ACTIONABLE.
The doctrine is evaluated by looking at the “gist” of the broadcast.
“Assessing a broadcast’s gist is crucial,” Guzman wrote in her 38-page opinion. “A broadcast with specific statements that err in the details, but that correctly convey the gist of a story, is substantially true. On the other hand, a broadcast can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual statements considered in isolation were literally true or non-defamatory.”
In Neely’s case, Guzman concluded the gist of the broadcast was that Neely was disciplined for operating on patients while using dangerous drugs or controlled substances.
Guzman repeatedly emphasized that the Medical Board’s order disciplined Neely for prescribing himself dangerous drugs, but it did not discipline Neely for using dangerous drugs. She noted that the medications were legitimately prescribed by treating physicians, but that Neely began to refill the medications himself.
Guzman also noted that Neely swore he never abused drugs and never performed surgeries while impaired. Neely also retained Dr. Edgar Nace, a psychiatrist, to evaluate himself for substance abuse. Nace reported that Neely was not an addict.
Because there was no evidence that Neely took the drugs that he wrongfully prescribed to himself, or that he performed surgery under the influence, the doctor is entitled to a trial, Guzman concluded.
Guzman responded to the chief justice’s dissent. She said the dissent relied on circumstantial evidence.
“The dissent inverts our time-honored summary judgment standard by indulging every reasonable inference and resolving every doubt against Neely. Its foremost implicit finding against Neely is that the Board disciplined him for taking medications. But the Board Order did not discipline Neely for taking medications, it disciplined him for self-prescribing them,” Guzman said.
Referring back to the court’s doctrine, Jefferson said: “Here, the literal truth is as caustic as the gist, and the gist reasonably depicts the literal truth. Rather than consider the broadcast as a whole, the Court parses it into several different parts, and then addresses only two of them, ironically presenting a certain juxtaposition that the Court itself decries.”
What was the literal truth?
According to the Medical Board’s transcript, Neely admitted using the drugs.
What drugs did he use and how often?
According to the Medical Board investigation, Neely used Paregoric, which contains morphine. The average adult dose is 5-10 milliliters one to four times daily. Neely admitted taking up to 70 milliliters daily. He dosed at bedtime and each morning during the time he operated on the two subjects that later spoke to KEYE.
Neely began medication because of a torn rotator cuff he suffered in 1999. Over the next several years, he took a lot of drugs. He admitted to using Vicodin, Darvocet, Propoxyphone and Norco, all are narcotic pain relievers. He also used the narcotic Lomotil. He used Phenergan for nausea. He used the steroids Ventolin, Medrol and Azmacort for asthma. He used Prilosec for indigestion. He used Flonase. He used Paxil for acute depression.
From 1990-2001, he admitted drinking alcohol, at least two drinks per night. He admitted that sometimes he had four or five drinks.
When the broadcast aired, Neely had been involved in seven malpractice cases, at least two of which alleged that he was addicted to prescription drugs and that he abused alcohol, Jefferson said.
Guzman emphasized that the Medical Board found most of Neely’s drugs “legitimately” prescribed, Jefferson said, but she failed to mention that was “initially.” Neely was refilling his own meds for almost three years.
He also noted that Neely had the psychiatric evaluation on the Medical Board’s order, which “could only have been intended to address the Board’s concerns about Neely’s possible substance abuse.”
Guzman attacked the statements of Paul Jetton and other interviewed subjects as if they were unsubstantiated allegations of fact, Jefferson noted. However, Neely acknowledged in testimony that these were opinions.
The KEYE broadcast mentioned Neely’s use of drugs eight times and his hand tremors twice. Guzman ignored each mention of tremors, which the Medical Board also took into account.
“The Court concludes that it need not address the third gist it identifies: that Neely was operating on patients while experiencing hand tremors. But we must evaluate the substantial truth of the broadcast as a whole, and the hand tremors are an inseparable part,” Jefferson said.
“Neely has tremors, although he denies that they impact his surgical skills. He admitted some of those tremors were ‘major.’ The Board’s investigator witnessed the tremors, as did Sheila Jetton when Neely was injecting anesthetic into her husband’s head. Neely’s personal physician noted it in his medical records. The Board was concerned enough about the tremors that it ordered Neely to undergo a complete examination by a physician ‘to determine Neely’s capacity to practice medicine in general, and specifically, to perform surgery,’” Jefferson continued.
Jefferson insisted that the gist of the story, that Neely was disciplined by the Medical Board for operating on patients while taking dangerous drugs, was substantially true. And reporter Wilson’s interview with the Board spokesman was to emphasize that the Board had not done more.
“We come, then, to the literal truth. We know the Board disciplined Neely for prescribing dangerous drugs to himself, drugs he admits taking. 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.”
There has been a motion filed for a rehearing of the case, and a friend of the court (amicus brief) filed by 10 news organizations and numerous press associations in support of the motion. I'll file an update on that soon.
The Supreme Court has not yet agreed to rehear the case, but it would behoove them to do so. As the subsequent motions state, this opinion make Texas an outlier. If the court does not change its stance, the defendants will likely appeal in federal court.
A few closing observations: All nine justices on this court are in the Republican Party. It is curious to see a 5-to-3 split where one might anticipate ideological unanimity on a First Amendment issue.
Justice Nathan Hecht, whom Governor Rick Perry appointed as Chief Justice today, did not participate in this decision.
The dissenter, Jefferson, the first African-American chief justice, is retiring and leaving the bench at the end of the month.
See the follow-up column: Texas journalists, media face a 'radical' state Supreme Court