The issue: Reporters and news organizations are liable, if they use third-party allegations that later turn out to be untrue.
In a June 28, 2013 opinion, five justices comprising a majority of the Texas Supreme Court redefined a 23-year-old state standard for libel and said journalist can only avoid liability for published allegations, if they later turn out to be true. If the allegations are false, the story was not substantially true and the allegedly defamed person has cause to get to trial.
A detailed description of this opinion, Neely v. KEYE, can be reviewed in THIS COLUMN.
On Sept. 12, 2012, A.H. Belo Corporation, the parent company of The Dallas Morning News, filed an amicus brief in which it asked the Supreme Court to go back and uphold the decision of the Court of Appeals for the Third District in Austin, and confirm the precedent set by the Supreme Court in 1990 in McIlvain v. Jacobs, as interpreted by the Third District panel. The court subsequently did the opposite.
This friend of the court brief was crafted by Paul Watler of the Jackson Walker firm in Dallas. His co-counsel is William W. Ogden, the same Houston attorney who defended KHOU-TV reporter Judd McIlvain in McIlvain v. Jacobs in 1990.
Belo was joined by AIM Media Texas, Post-Newsweek Stations Inc. Texas Daily Newspaper Association and other media outlets.
On Aug. 13, after the opinion came out, defense counsel for KEYE-TV and the reporter who researched and conducted the 7-minute report, Nanci Wilson, filed a motion to the Supreme Court to have the case reheard.
The court has given the petitioner, neurosurgeon Dr. Bryon D. Neely, until Oct. 18 to file a response to the motion for rehearing.
Also on Aug. 13, an amicus brief was filed by the Reporters Committee for the Freedom of the Press, the Texas Press Association, Hearst Corp. and 14 other media companies, associations and a media insurance underwriter.
This may seem like a lot of firepower over one libel case, but there is good reason. The Belo Corp. amicus explains a critical component of what is at stake:
- “Amici and other journalists cover a 24-hour news cycle in near-real time. News organizations routinely report on allegations, cross-allegations, arrests, indictments, investigations, claims, defenses, counterclaims, trials and appeals. The reporting of third-party allegations is vital to a vigilant and active press.
- “Petitioner’s [Neely’s] proposed interpretation of McIlvain has the potential to eviscerate the ability of the media to scrutinize inaction by government agencies after allegations have been reported to the media and the public. For example, in 2007, The Dallas Morning News reported on allegations of brutality, sexual abuse and failed leadership at the Texas Youth Commission, the state agency responsible for rehabilitating young offenders. One of the earliest reports stated, ‘many prison staffers at the West Texas State School complained about the abuse to their immediate bosses and to officials in Austin, the [official] reports say. But, for more than a year, no one in charge did anything to stop it.’
- “If [Neely’s] position is correct, then Texas journalists and media outlets would potentially face liability for accurately reporting such serious allegations regarding threats to public safety when agency inaction ensued.
- “Burdening media defendants with proving not only that the allegations were made and accurately reported, but also with proving that the underlying allegations were substantially true would stifle all manner of important speech. But none would be so thoroughly silenced as investigative reporting – the very cornerstone of a free and vigilant press.”
This should be enough reason for every journalist in Texas to be concerned.
Who is the ‘radical’?
How did we get here? Why did this Supreme Court hear this case?
The role of a state Supreme Court is to interpret the law, whether it stems from common law, statutory law, or the state constitution. A case gets there on direct appeal by a party with standing in a lawsuit, or because there is a conflict on an issue between two or more district courts of appeals, or because a district court of appeals has a question that it forwards to the Supreme Court.
For people who do not follow supreme courts and are not that familiar with how they work, it is important to emphasize that the fates of the opposing parties are really just one of two dimensions at play on this level. This court decides conflicts that involve those parties, and all similarly situated parties. Therefore, most opinions of the Texas Supreme Court will somehow have statewide impact.
In this case, there was no conflict between the district courts of appeals and they had no question. Dr. Byron Neely’s attorney, however, wanted the Supreme Court to withdraw from or redefine McIlvain. The Supreme Court decided to give her a chance to make her case.
Jane Webre, a partner at Scott, Douglass & McConnico in Austin, told the Supreme Court during oral argument on Sept. 13, 2012 that a journalists’ freedom to report third-party allegations should be confined to what is spelled out in the state’s Liability In Tort statute, Chapter 73 of the Civil Practice and Remedies Code.
Chapter 73, however, focuses on giving a “fair, true, and impartial” accounting of official government proceedings. And it says, “This chapter does not affect the existence of common law … or other defenses to libel.”
“I submit (Chapter 73) defines the scope of appropriate media defendant privileges, not the common law in Texas,” Webre argued.
“If the media defendants contend that it is necessary to have a free press, necessary for democracy,” she added, “then their remedy is to go to the Legislature and to ask for an amendment of Chapter 73 to extend that privilege.”
Yes. Go to the Legislature.
Here we come to a cruel double standard, which in one way or another is pointed out in the motion for rehearing and the first amicus brief. The Republican-controlled Legislature passed a slew of tort bills over the last decade, calling it “reform,” in order to reduce the cost of litigation for the state’s corporate citizens. Never mind that these tort laws made it impossible for thousands of citizens to be made whole through a jury of their peers for wrongs committed by corporate citizens. But this Republican court thinks it’s ok to knock the courthouse doors off their hinges for plaintiffs going after media defendants, even for lawsuits that have been considered frivolous for decades.
Thomas Leatherbury of Vinson & Elkins in Dallas is the appellate defense attorney for KEYE-TV and Nanci Wilson. He was quite aware, when he participated in oral argument, that the court was considering changing McIlvain.
Justice David M. Medina, who retired from the court Dec. 31, set the tone for a discussion that was less than intellectually honest. When Webre and Justice Eva Guzman were discussing how juxtaposition of statements by different people in the report gave the impression that Neely was, as Webre put it, “a drug addled surgeon with a tremor, just acting as a butcher, doing unnecessary surgeries,” she was told by Guzman, who would later write the majority opinion, that this was in the context of an investigatory report.
Guzman was trying to argue that investigatory reports are necessarily more complex and dramatic than the routine, one-minute news bites that television reporters deliver.
“Then investigate and give a fair and reasonable, impartial report, which did not happen here,” Webre said.
Medina responded, “Otherwise, it’s just gossiping, that’s not protected under any view of the Constitution.”
When Leatherbury came to the podium, his opening statement was, “The petitioner’s view of libel law, not respondents, is a radical one. It would set Texas back many years and would make Texas an outlier.”
The first question posed to him came from Medina, “Is there any requirement for the media to report the facts as opposed to gossip?”
Leatherbury replied, “Yes, your honor! Absolutely!”
Medina: “So, how do we prevent gossip from being spread through the media for their own entertainment purposes?”
Leatherbury explained that Neely was trying to make the argument that the third-party allegation rule as applied to the Substantial Truth Doctrine creates a blanket immunity, but that is not the case.
“First, the journalist can’t simply make up the allegations herself. The allegations have to be made by a third party. And in the neutral report privilege situation, they have to be made by a responsible third party or by a person with personal knowledge of the situation,” Leatherbury said.
Shortly afterward, Leatherbury took exception to the court’s characterization of Wilson’s news report as gossip. “This is certainly not gossip. This is a matter of eminent public concern.”
He went on to note that other case law established other causes for action against rogue reporting. Journalists, for example, cannot knowingly make material omissions that are exculpatory, and they cannot make misleading juxtapositions.
He also noted the efforts to which Wilson went to give a balanced report. While Neely would not comment, she got his attorney to comment and that statement was published in full. She also noted that the Texas Medical Board investigation regarding the main subject making malpractice allegations – in person and through his lawsuit, former National Football League lineman Paul Jetton – reached a finding of no wrongdoing.
Despite Leatherbury’s efforts, the justices continued to put him on the defensive by casting the motives of the defendants in a sinister light.
“What if it’s all true,” Justice Paul Green asked. “Say in this case you know that the person has been sanctioned by the Board for some conduct, that the person has been sued, there are medical malpractice suits, and even say that all those cases have been dismissed, presumably without merit, and yet, in the reporting of it – wink, wink – we all know I’m out here, I’m a consumer advocate, so you all need to know this when you’re starting to look at a doctor here.”
“Well, certainly, those aren’t the facts of the case, your honor,” Leatherbury said.
One year later, the Supreme Court sided with Webre. They sided with the position Leatherbury called the radical one.
In Guzman’s opinion for the majority, she went back to McIlvain and said, “We affirmed the trial court’s ruling because the ‘broadcast statements are factually consistent with [the government’s] investigation and its findings,’ and were thus ‘substantially correct, accurate, and not misleading. Since McIlvain, several courts of appeals and the Fifth Circuit have interpreted it to mean that media reporting of third-party allegations under investigation is substantially true if the media accurately reports the allegations and the existence of any investigation. KEYE similarly asserts that our holding in McIlvain created a substantial truth defense for accurately reporting third-party allegations. But the parties do not assert and we cannot locate such a rule in any other jurisdiction, and we did not establish it in McIlvain.”
First, Guzman is correct to emphasize the court compared the third-party allegations with the findings of the official investigation. That could pose a problem for the media industry in this case. But other courts focused on the “gist” of a report being “substantially true,” whether or not official findings exist for a very good reason.
Chief Justice Wallace B. Jefferson noted in his dissent, and the defense and amicus briefs repeat the thinking of the Eighth Circuit federal appeals court in Price v. Viking Penguin Inc., “We do not know how authors can ever write about controversies without reporting accusations and counter-accusations.”
Second, Guzman was way off by claiming the third-party allegations rule doesn’t exist elsewhere.
Laura Lee Prather, a partner in the Austin office of Haynes and Boone, wrote the first amicus filed, the one led by Reporters Committee for Freedom of the Press. She had this to say of the majority’s inability to locate such a rule in any other jurisdiction:
- “Although other courts may call it something different, the fair report privilege, the neutral reportage privilege, and the third-party allegation rule are essentially the same. A review of the holdings from around the country … makes clear that the principle underlying the third-party allegation rule has been recognized consistently.
- “Many other jurisdictions have found accurate reports of a third-party allegation to be true or substantially true, whether official investigation or private allegation. In addition to the Fifth Circuit, the Seventh, Fourth, Second and Eighth Circuits, as well as lower courts around the country, have affirmed the importance of permitting reporting of allegations.
- “For example, when the New York Times reported that the government was investigating a charity for links to terrorism, the Seventh Circuit explained:
- The Court [below] concluded that the gist of each article was that the government was investigating [the plaintiff] for links to terrorism and was considering freezing the organization’s assets … The defendants produced affidavits from government sources confirming that the government was in fact investigating [plaintiff] for links to terrorist groups and was in fact contemplating freezing the organization’s assets at the time the reports were made. The court thus found that the reports were substantially true. – Global Relief Found, Inc. v. New York Times Co.
Dicta! … What did you call me?
Early into Prather’s amicus, she makes repeated reference to the majority’s conclusion, “reached in dicta.” She uses the word dicta again and again, like a hammer driving home a nail.
Under normal circumstances, dicta is considered a passing remark made in a court opinion that has no binding authority. It cannot be cited as precedent. In this case, the passing remark was directly on point. It creates precedent and KEYE’s motion for rehearing and Prather’s amicus treat it that way.
The Belo amicus, offered to the court before the decision, tried to be a little more diplomatic, stating the case “presents and important opportunity to clarify and affirm two essential doctrines.” One, media defendants are entitled to summary judgment upon showing a report was a substantially true account of third-party allegations. Two, defamation plaintiffs bear the burden of proving falsity.
Reaching precedent decisions this way doesn’t follow legal customs. If there is an important question of law in a case, one that should require a bright-line rule as with this issue, a supreme court is supposed to address the question directly or rephrase the question to its liking. Then answer it with an official declaration. Belo's amicus, in more genteel language, driving home the point that the court could have done so in this case.
But the court chose to use dicta.
Note to the court: if you’re going to insinuate – even for rhetorical purposes – that these defendants are reckless, lazy, gossips with no professional standards, and therefore we need a more restrictive rule for all Texas journalists and their employers, you could at least come through the front door and tell us that to our faces.
* Adolfo Pesquera has been a practicing journalist for 29 years. He specializes in covering law and the courts. He can be followed on Twitter @Adolfo_Pez or @Adolfo_Pesquera