If you are a journalist in Texas, you work for a piñata.
Anyone accused of something bad by your television station, radio station, newspaper or magazine has a shot at suing you and your boss if--and this is the kicker--if your organization cannot prove that person did what they were accused of.
It doesn’t matter if you got your information from the local sheriff, a district attorney or a court record filed by the U.S. Attorney’s Office.
Any pissed-off and allegedly defamed subject of your news organization can go to court, grab a stick, take a swing at your company and see what falls out.
For a quick summary of the case, check out Paul Watler’s blog. He’s the Jackson Walker attorney that the Dallas Morning News hired to beg the high court to reconsider its decision. Watler wasn’t alone. Every major news organization in the state asked the Supremes to please take another look at this.
The nutshell version of this case, Neely v. Wilson, is that an Austin TV reporter laid out the facts in a Texas Medical Board disciplinary case. She also put a couple of former patients on camera who suffered adverse effects after being operated on by the doctor the Medical Board had under investigation.
He was disciplined for self-prescribing pain meds and other drugs. Legal scholars differed on what the gist of the story was about, but the majority on the Supreme Court decided the gist was that Dr. Byron Neely, a brain surgeon, was operating on patients while he was doped on dangerous drugs.
This was a contentious case. Three justices vehemently disagreed with the other five on just about everything.
The meat of this case has to do with two elements. First, to avoid a defamation trial, a news organization must convince a judge that, even though there may be errors in a story, the gist of the story is substantially true. This is called the Substantial Truth Doctrine.
Second, the vast majority of investigative stories rely on third parties. This could be an official source like a homicide detective, an inspector general, or a building inspector. Then there are unofficial sources such as neighbors, a co-worker or family member of the accused. Reliance on statements such as these is known as the Third-Party Allegation Rule.
In Neely, the Supreme Court pulled the rug out from under everyone and said third-party allegations do not protect journalists unless the allegations turn out to be true.
This was a reading of McIlvain v. Jacobs, the 1990 precedent case from Houston, that had not been used before. Libel defense attorneys had for years assumed that McIlvain supported the third-party allegation rule, without any clause about being able to predict the future.
How does a journalist guarantee the truth of allegations in a report that is about the early stages of an investigation, or a criminal charge that hasn’t yet gone to a grand jury?
Last Friday, Justice Eva Guzman, author of the majority opinion, gave the Texas media the court’s response in a “corrected opinion” that dealt with all the begging in a footnote on page 3.
“No party challenges our holding that we have not yet recognized a rule establishing accuracy as the test for the substantial truth of a broadcast that repeats third-party allegations.”
Ok, wait. That is because the rule is recognized in other state and federal courts, and in McIlvain the Supremes seemed to imply they felt the same way. Moreover, the media briefs did ask the court to recognize the rule now, but let’s continue:
“Briefing submitted in support of rehearing construes our opinion as foreclosing such a rule and as affirmatively requiring the underlying allegation be proven substantially true to prevail on the truth defense. That interpretation, however, misconstrues our holding.
“We thus, as we must, leave open the question of whether a broadcast whose gist is merely that allegations were made is substantially true if the allegations were accurately repeated.”
Oh, must we?
This was Guzman’s way of saying the court hasn’t slammed the door shut on the possibility of recognizing a Third-Party Allegation Rule, but … eh! We can’t be bothered.
Do we detect a hint of black humor here? If you think I’m wrong, check out this insert --in bold--in the corrected opinion, page 36:
“Finally, the dissent perceives that our holding ‘collides violently with the First Amendment. But the United States Supreme Court has only discussed the truth defense as a creature of state common law and not the First Amendment.”
Right, let’s pretend the First Amendment isn’t really in play, because, oh, I don’t know … squirrel!
The dissent Guzman was referring to, by the way, was former Chief Justice Wallace B. Jefferson, not exactly a slouch when it comes to constitutional law.
There was a lone dissent when the court denied Wilson’s motion for rehearing. Justice Debra Lerhmann, who sided with Jefferson last year, had a few choice words of her own:
“It is inherent in the nature of investigative reporting that some allegations will be reported that are later discovered to be untrue. Shielding media defendants from defamation liability for accurately reporting such allegations is a critical and well-settled practice, yet the court’s opinion declines to recognize as a definitive statement of Texas law 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.’”
The court’s position, coupled with its statement that “one is liable for republishing the defamatory statement of another,” may cause some to understand the court’s holding in McIlvain too narrowly, she said.
Lehrmann added she would have read McIlvain as has the U.S. Court of Appeals for the Fifth Circuit and several Texas courts of appeals--to support the proposition that when the gist of a news article is that allegations were made and being investigated, then proof provided of the same should be sufficient.
“Because the court’s opinion may lead to uncertainty in this critical area of the law, and as a result may have a chilling effect on the press, I would grant rehearing,” Lerhmann closed.
In the end, the majority avoided considering the third-party allegation rule by insisting the gist--as the majority defined it--went beyond allegation reporting. So, they didn't have to look any further.
She also had a parting footnote, raising the dispute between the majority and the three dissenting justices over what the gist of the Neely case was.
“In any event, since the court could reconsider the characterization of the gist of the broadcast on rehearing, it is possible that the merits of the third-party allegation rule would be reached if the motion for rehearing were granted,” Lerhmann said.
Translation: You could debate the rule if you wanted to, but you can’t handle the truth.
Where does this leave Texas journalism?
It raises the risk level considerably. This decision creates an incentive for news organizations to reduce emphasis on investigative reports and focus even more in infotainment.
It puts a trap door under every investigative report that gets published, a door that could spring open at any time and hurl the writer and the publisher into litigation hell.
The fact is people who are accused of something escape guilty verdicts often. A district attorney may decide the police didn't have enough evidence and nolle prosse (drop) the case, or the grand jury may no bill, or the trial jury may find the defendant innocent, or there may be a mistrial. If it's a civil case, the plaintiff may not have the financial means to pursue a lawsuit, or the preponderance of the evidence may be insufficient, or a jury may award damages only to have the judge direct verdict in favor of defendant because he doesn't think the jury got it right, or the defendant may get a reversal on appeal. There are so many ways the case can go against the plaintiff.
And it really muddies the water for trial court and appellate judges. The Supreme Court’s position is clear as mud.
By this decision, judges across the state are pushed in the direction of Two Face, the fictional district attorney turned nemesis of Batman who decides every situation by the flip of a coin.
Copyright protected / All rights reserved / Adolfo Pesquera
(About the slideshow: the lady standing at podium is Eva Guzman, and the lady in the portrait shot is Debra Lerhmann.)