COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-069-CV
THE
HEARST CORPORATION APPELLANTS
D/B/A
THE HOUSTON
CHRONICLE
PUBLISHING
COMPANY,
AND EVAN MOORE
V.
JACK
SKEEN, JR., DAVID APPELLEES
E.
DOBBS, AND ALICIA CASHELL
------------
FROM
THE 43RD DISTRICT COURT OF PARKER COUNTY
OPINION ON REHEARING
After
reviewing Appellants’ motion for rehearing and rehearing en banc and
Appellees’ motion for rehearing, we deny the motions. We withdraw our February
5, 2004 opinion and judgment and substitute the following.
Appellees
filed this libel cause of action seeking damages incurred from an allegedly
defamatory article written by Appellant Evan Moore (Moore) and published in the Houston
Chronicle, a newspaper published by the other Appellant, the Hearst
Corporation. Appellants filed a motion for summary judgment seeking to dispose
of Appellees’ entire case, which the trial court denied. Appellants now bring
this interlocutory appeal from the trial court’s denial of their motion for
summary judgment.1
I.
Statement of Facts
Appellees
brought this libel action seeking damages caused by an article in the Houston
Chronicle regarding the Smith County judicial system, specifically the
District Attorney’s (D.A.) office. The article specifically names eight
different criminal cases tried in Smith County involving allegations of
misconduct during the period of 1970–2000. About half of the cases
discussed in the article were tried prior to current D.A. Jack Skeen’s (Skeen)
tenure.
The
article at issue, entitled “Justice Under Fire,” was authored by Moore and
edited by Kit Frieden (Frieden). It appeared in the Houston Chronicle on
June 11, 2000, and was accompanied by several captioned photographs,
subheadings, and three companion articles. The introductory subheading states,
“‘Win at all costs’ is Smith County’s rule, critics claim.” The
article begins with a discussion of the statue of the Greek goddess, the Lady of
Justice, located at the entrance of the Smith County Courthouse. The statue, as
the article points out, is missing the customary blindfold that is said to
illustrate that justice is blind.
The
case of Kerry Max Cook, which the article states is “the most egregious,
documented case of prosecutorial misconduct in the history of the state,”
ignited Moore’s focused research into cases involving similar prosecutorial
misconduct claims. For more than five months, Moore researched and reviewed
court documents and interviewed parties involved in the eight cases that met his
“prosecutorial misconduct” criteria. He also interviewed many defense
attorneys and a judge that were not involved in these cases.
Because
Moore found some cases that were overturned due to prosecutorial misconduct, the
article portrays the Smith County D.A. as having a win-at-all-costs policy. The
article states that the misconduct in the D.A.’s office includes withholding
exculpatory evidence, planting evidence, encouraging perjury, and selective
prosecution. Appellees Skeen, David Dobbs (Dobbs), and Alicia Cashell (Cashell),
who are all specifically named in the article, claim the article is false and
malicious and sought damages for libel.
Appellants
filed a motion for summary judgment. The trial court denied the motion, finding
genuine issues of material fact. Appellants raise four issues on appeal, arguing
that the trial court erred by finding there were genuine issues of material fact
about whether: (1) Appellants acted with actual malice; (2) the article taken
statement by statement and as a whole was literally and substantially untrue;
(3) the article was protected by constitutional, statutory, and common-law
rights and privileges; and (4) the article was defamatory and was “of and
concerning” Appellees. Because the trial court did not err, we affirm the
trial court’s order. We remand to the trial court for a determination of the
costs and reasonable attorney's fees of this appeal.2
II.
Legal Analysis
A.
Standard of Review
Summary
judgment is reviewed in public figure defamation cases under the same standard
as other cases.3 In a summary judgment case,
the issue on appeal is whether the movant met his summary judgment burden by
establishing that no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law.4
The burden of proof is on the movant, and all doubts about the existence of a
genuine issue of material fact are resolved against the movant.5
Therefore, we must view the evidence and its reasonable inferences in the light
most favorable to the nonmovant.6
In
deciding whether there is a material fact issue precluding summary judgment, all
conflicts in the evidence are disregarded and the evidence favorable to the
nonmovant is accepted as true. 7 Evidence that
favors the movant's position will not be considered unless it is uncontroverted.8 Summary judgment is proper only if the record
establishes that the movant has conclusively proved all essential elements of
the movant's defense as a matter of law.9 If
the uncontroverted evidence is from an interested witness, it does nothing more
than raise a fact issue unless it is clear, positive and direct, otherwise
credible and free from contradictions and inconsistencies, and could have been
readily controverted.10
A
defendant is entitled to summary judgment if the summary judgment evidence
establishes, as a matter of law, that at least one element of a plaintiff’s
cause of action cannot be established.11 The
defendant as movant must present summary judgment evidence that negates an
element of the plaintiff’s claim.12 Once
the defendant produces sufficient evidence to establish the right to summary
judgment, the burden shifts to the plaintiff to come forward with competent
controverting evidence raising a genuine issue of material fact with regard to
the element challenged by the defendant.13
A
defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all the elements of the affirmative defense.14 To accomplish this, the defendant-movant must
present summary judgment evidence that establishes each element of the
affirmative defense as a matter of law.15
B.
Public Figure Defamation
Defamation
occurs when a false statement about a plaintiff is published to a third person
without legal excuse, causing damages to the plaintiff’s reputation.16 Libel is defamation in written or other graphic
form that tends to injure a person’s reputation, exposing the person to public
hatred, contempt, or ridicule.17 To maintain
a libel cause of action, the plaintiff must prove that the defendant (1)
published a statement (2) that was defamatory concerning the plaintiff (3) while
acting with either actual malice, if the plaintiff was a public figure, or
negligence, if the plaintiff was a private individual, regarding the truth of
the statement.18
1.
Defamatory Meaning
In
their fourth issue, Appellants argue that the trial court erred by finding a
genuine issue of material fact about whether the article is capable of a
defamatory meaning “of and concerning” Appellees. We disagree.
In
a libel action, the court first must determine whether the statements made are
reasonably capable of defamatory meaning.19
If a publication is of ambiguous or doubtful import, the jury must determine its
meaning.20 An allegedly defamatory
publication should be construed as a whole, in light of the surrounding
circumstances, based upon how it would be perceived by a person of ordinary
intelligence.21 Under Texas law, even though
all the article’s individual statements considered in isolation may be
literally true or non-defamatory, a publication can convey an untrue and
defamatory impression by omitting or juxtaposing facts.22
Thus, whether a publication is false and defamatory depends on a reasonable
person’s perception of the entirety of a publication and not merely on
individual statements.23
The
article in this case begins its substantive discussion by addressing Skeen’s
background, including his prior employment. The article continues:
He
has a record for winning. Honored as the State Bar’s Prosecutor of the
Year for 1997, Skeen has been cited by a Sam Houston State University study
showing that from 1980-90, Smith County led the state in meting out the longest
prison sentences for major crimes and the second-longest for less violent
offenses.
The
question is how that record was achieved.
During
the same period that Skeen’s enviable conviction record has been growing,
Smith County has gained a reputation in select circles for inequity in state
criminal cases. (emphasis added.)
This
portion implies that Skeen has a record of winning that was achieved by improper
methods of prosecuting criminal cases, and that implication continues throughout
the remainder of the article. Therefore, this opening portion of the article
raises issues of material fact about the article’s defamatory meaning
regarding Appellees.
Additionally,
the article specifically names Appellees as its subjects. Skeen is specifically
named in the main article at least twenty times, Dobbs is named at least five
times, and Cashell is named at least once. A photograph of Skeen with a caption
implying misconduct accompany the text. Consistently throughout the article,
Appellees are identified through pronouns such as “he,” “she,” or
“they,” as well as “the State,” “the district attorney,” or “the
prosecutor.” These references also raise an issue of material fact about the
article’s defamatory meaning regarding Appellees.
Likewise,
Frieden’s testimony and the testimony of potential jurors also raise a genuine
issue of material fact about whether the article has a defamatory meaning
regarding Appellees. Frieden testified that a reasonable reader would infer from
the article that Appellees engage in unethical activities in obtaining
convictions. Potential jurors have also said the article was the reason they had
a bias against the State. One potential juror in a case in which Cashell
participated recognized Cashell’s name from the article and testified that
because the article cited many instances of misconduct and a win-at-all-costs
policy, she felt like the State would not be honest or fair.
Consequently,
because the more than two thousand pages of summary judgment evidence in this
case raise multiple issues of material fact regarding the defamatory meaning of
the article regarding Appellees, the trial court did not err by denying summary
judgment on this issue. We overrule Appellants’ fourth issue.
2.
Actual Malice
In
Appellants’ first issue, they argue that the trial court erred by finding that
there was a genuine issue of material fact regarding whether Appellants acted
with actual malice. We disagree.
In
this case, both sides agree that Appellees are public figures. Thus, as an
element of their cause of action, Appellees must prove that Appellants acted
with actual malice.24 The purpose of the
actual malice standard is to protect innocent but erroneous speech on public
issues, while deterring calculated falsehoods.25
“Actual malice” for this cause of action occurs when a person makes a
statement with knowledge that it is false, or with reckless disregard of whether
it is true or not.26 Knowledge of falsehood
is a relatively clear standard; reckless disregard is much less so.27 In this context, “reckless disregard” is a
term of art requiring that the defendant in fact entertained serious doubts as
to the truth of his statements at the time they were made.28
It is a subjective standard that “focuses on the conduct and state of mind of
the defendant.”29 “Likewise, recklessness
may be found where there are obvious reasons to doubt the veracity of the
informant or the accuracy of his reports.”30
Additionally, an omission can be evidence of actual malice if the plaintiff
proves that the defendant knew or strongly suspected that it could create a
substantially false impression.31
To
disprove actual malice, a defendant may certainly testify about his own thinking
and reasons for his actions, and he may be able to negate actual malice
conclusively.32 The defendant, however,
cannot automatically ensure a favorable verdict by testifying that he published
an article with a belief that the statements were true.33
“[H]is testimony that he believed what he said is not conclusive, irrespective
of all other evidence. The evidence must be viewed in its entirety.”34
Although
the focus is on the defendant’s state of mind, a plaintiff can prove actual
malice through circumstantial evidence.35
Even though a lack of care or an injurious motive in making a statement by
itself is not proof of actual malice, care and motive are factors to be
considered.36 For example, a failure to
investigate fully is not evidence of actual malice, but a failure to investigate
motivated by a desire to avoid the truth, is purposeful avoidance.37 And an understandable misinterpretation of
ambiguous facts does not show actual malice, but inherently improbable
assertions and statements made on information that is obviously dubious can show
actual malice.38
In
this case, Appellees produced sufficient circumstantial evidence to raise an
issue of fact regarding Appellants’ reckless disregard. Although Moore spent
about six months doing research for the article, he did not try to speak to
Appellees until two weeks before the article’s scheduled publication. When
Moore finally did meet with Appellees, only days before the article was due, he
told Skeen that he was writing an article that was “critical” of Skeen’s
office. Moore spent not more than a couple of hours, collectively, with
Appellees and did not discuss many of the substantive issues in the article.
This evidence of his failure to fully investigate and get Appellees’ response
to the charges he made against them raises a material issue of fact about
whether Moore’s behavior was “purposeful,” and, thus, whether the article
was published with actual malice.
After
the meeting, but before the article was published, Appellees sent a letter to
Appellants addressing their concerns about the article’s bias against them,
the false or incomplete information, and the credibility of Moore’s primary
informants. Appellants admitted that the letter “perturbed” them and led
them to consider whether additional information should be added to the article.
Nonetheless, the text of the published article was the same as the version of
the article before Appellants received the letter, except for the insertion of
one three-sentence paragraph, which Frieden added. Therefore, material facts
exist as to whether Appellants recklessly disregarded the information obtained
from Appellees just to meet a publication deadline that easily could have been
extended.
In
addition, Appellees presented evidence of a material fact issue about whether
Moore knew there was not a win-at-all-costs rule or policy in the Smith County
D.A.’s office. He testified that he knew a “rule” means an action occurs
more often than not, and a “policy” is more than a happenstance. Moore
admitted, however, that he was only aware of “problems” alleged in .04% or
four out of every ten thousand cases, and he admitted that at the time of
publication he had found mistakes in only three cases. In fact, Moore admitted
that no case tried by Skeen’s office has been reversed for a discovery
violation.
Furthermore,
Moore’s primary source in the article admits that he alleged discovery
problems in only a small percentage of his cases. This source admits that he is
not an objective source; he always resolves doubts about facts in favor of his
client. Moore was aware of this informant’s bias and limited sample of
problems and allegedly expressed doubts about the veracity of the informant or
reliability of his reports. We conclude that an issue of material fact exists
about whether Moore recklessly disregarded this information and published the
article anyway.
Additionally,
circumstantial evidence raises material issues of fact regarding Appellants’
purposeful avoidance of the truth. The article states that “Skeen’s office
is so driven toward convictions that his 30 assistants are required to file a
written report if they lose a case;” however, Moore admits that he never
requested a copy of the D.A.’s written policies, and that he was aware that
his informant knew there was really no policy to this effect. The article also
states that Moore’s informant Brendan Baade “apparently has filed more
motions attacking the district attorney’s evidence policies than any other
Tyler attorney. . . . Most of Baade’s motions have been successful.”
However, Moore testified that he has no idea how many motions are filed
attacking the D.A.’s discovery policies nor does he know how many different
attorneys have filed motions. He also does not know how many of Baade’s
motions are actually successful on the basis of an evidentiary issue. Baade also
testified that he has no idea how many motions he has filed alleging discovery
violations; however, he does admit that he has alleged discovery violations in
only a small percentage of his cases.
Moore
testified that he spoke to at least ten defense attorneys and a judge who told
Moore that Skeen’s office does not have a rule, policy, or pattern of
misconduct, and that only a few defense attorneys agreed with the implications
the article implied. Moore admitted that he did not seek interviews with any
attorneys who might have an opposite view of the D.A.’s office than he did. An
expert testifying about the standard for adequately reporting information
testified that this article fell far below that standard. The expert testified
that the article was biased and failed to impartially give an accurate and
balanced account of the information presented in the article. These facts
therefore raise issues of material fact as to whether Moore purposefully avoided
the truth.
Because
the evidence raises issues of material fact as to whether Appellants acted with
actual malice because they knew the article was false but recklessly disregarded
or purposefully avoided the truth, the trial court did not err in denying
summary judgment on this issue. Appellant’s first issue is overruled.
C.
Substantial Truth Doctrine
In
Appellants’ second issue, they argue that the court erred in denying the
motion for summary judgment because the article was substantially true. We
disagree.
Substantial
truth is an affirmative defense to a defamatory claim, and the Appellees bear
the burden of proof on this issue.39 A
statement is substantially true, and thus not actionable, if its “gist” or
“sting” is not substantially worse than the literal truth.40
Thus, liability is found if a publication gets the details right, but fails to
put them in the proper context; thereby getting the story’s “gist” wrong.41 This evaluation requires us to determine whether,
in the mind of the average person who read the article, the allegedly defamatory
article was more damaging to the plaintiff’s reputation than a truthful
article would have been.42 In determining
whether an article is true or substantially true, we must look at it in light of
the surrounding circumstances.43
Under
this standard, we hold that Appellants have failed to establish the substantial
truth of the article as a matter of law. Implying that there is a rule or policy
of misconduct in the Smith County D.A.’s office, the article specifically
discusses eight cases: Beddingfield, Smith, Mims, Payne,
Butler, Mitchell, Cook, and Bendy, in which
prosecutorial misconduct allegedly occurred. Of these cases reported by
Moore in support of the allegations that the Smith County D.A.’s office has a
rule, policy, and pattern of misconduct, at least half of them began before
Skeen took office. Nevertheless, the article essentially merges Skeen’s
tenure with his predecessors’ and falsely attributes the misconduct of his
predecessors to Skeen. Additionally, as set forth below, issues of
material fact exist regarding the substantial truth of the Beddingfield, Smith,
and Mims discussions implying selective prosecution, the Payne
discussion implying general prosecutorial misconduct, the Butler, Mitchell,
and Cook discussions implying suppression of exculpatory evidence, and
the Bendy discussion implying encouragement to commit perjury.
First,
the article states, “[o]ur district attorney is closely allied with police
officers and it’s the only county I know where, if you want to settle a case,
you talk to the arresting officer first, not the DA,” and “Skeen doesn’t
deny his ties to law enforcement.” The article discusses two cases
involving law enforcement officers. The article refers to a drug sweep in
the late 1970s (prior to Skeen taking office), “in which two rogue narcotics
officers lied and planted evidence to make more than a hundred cases, resulted
in embarrassment to the county and prison sentences for the narcotics
officers.” Thereafter, the article refers to the Beddingfield
case stating:
Recently,
when Smith County Sheriff’s Lt. David Beddingfield, son of the chief deputy,
was accused of drug violations, Skeen recused his office from the investigation,
citing a ‘close working relationship’ with the sheriff’s office.
Instead,
a prosecutor was called in from the Texas Attorney General’s Office to work
with a grand jury investigating the case.
Implying
“selective prosecution,” the article continues with the following quote from
a former D.A. and current defense attorney, “I don’t know how you avoid
prosecuting police officers . . . I prosecuted several when I was DA.”
Omitted, however, from the article are the facts surrounding Skeen’s decision
to refer the case to the Attorney General’s (A.G.) office. At the time
Beddingfield was accused, as a part of the violent crimes task force, he was a
primary witness in many ongoing homicide cases. Because of this conflict, Skeen
and Dobbs contacted the division of the A.G.’s office that exists specifically
to handle this type of problem. After discussing the situation, the A.G. agreed
that it was proper to refer the case to him to avoid an appearance of
impropriety. These factual omissions regarding the circumstances involved in
Skeen’s decision to refer the case to the A.G.’s office present a material
issue of fact regarding the substantial truth of the article.
Additionally,
the Smith case is referred to in the lead article as, “A case in which
a civil lawsuit became a felony theft case and a Tyler businessman was kept
under perpetual, repeated indictment for four years before making his own,
unsolicited appearance before a grand jury when he finally was no-billed.” The
companion article explains that “Smith, however, believes he was targeted by
KLTV because of a longstanding business rivalry between himself and the station;
he believes he was targeted by Skeen because of a close relationship between the
district attorney and KLTV,” and “[i]n all, he was indicted three times for
a crime that has yet to be explained. Finally, after Smith sued the car dealer
and KLTV for false prosecution and received a $3.2 million settlement, the
indictments stopped.”
The
charges, however, arose when the car dealer’s attorney approached the D.A.’s
office alleging that Smith was engaged in illegal activity. The attorney
received no special treatment, but was referred to the police department as was
normal procedure. The police investigation turned up enough information to send
the case to the grand jury in 1989. A note in the original file indicates
that Smith was afforded the opportunity to testify at the first grand jury, but
the article implies that he was only allowed to testify in the fourth grand jury
presentation. The article fails to point out that the fourth grand jury
was convened at Smith’s request to provide the deposition testimony taken in
1993, and thus not available for the prior grand juries. Although these facts
were absent from the article, Moore was aware of them when he published the
article.
The
lead article also addressed the Mims case, stating it was “[a]n
aggravated assault case in which evidence that the state’s main witness had
multiple accusations of child molestation against her was suppressed until it
was learned of by accident by a defense attorney.” Although the
Appellants claim that this recitation is true, it is actually only Baade’s
allegations. In deposition testimony, Moore characterized the information
that he received from Baade as speculation, and he admits that he was provided
no evidence to support this speculation.
Before
publishing the article, Moore knew that Dobbs had informed Baade before the
witness testified in Mims that one of the defendant’s relatives was
accusing the witness of criminal acts, and Baade indicated that it was “not
any big deal.” In the habeas corpus hearing, the court found that Baade
was informed of the accusations, and there was no formal charge against the
witness at the time of the trial. But the companion article suggests that
both the presence of Skeen at the Mims trial and “the gravity of the
charges” were due to the “influence” and prominence of the victim’s
father. Furthermore, the article states that “[i]n Smith County what counts is
who you are, who your lawyer is and what you’ve done for the DA’s office
lately.” Issues of material fact exist regarding the substantial truth of the
article because Moore admits that he does not believe this statement to be true.
Next,
the article also raises issues of material fact regarding the article’s truth
by implying prosecutorial misconduct in the Payne case. The article
juxtaposes that case, which was highly publicized due to a jury sentencing Payne
to sixteen years for stealing a candy bar, with a comment about the verdict made
by a prosecutor no longer with the D.A.’s office. Although a mistrial was
granted in that case, it had nothing to do with any prosecutorial misconduct,
but was granted solely because of jury misconduct. The article arguably states
the true facts, however, the article creates a false gist that misconduct by the
prosecutor was a reason for the mistrial.
Then,
the article raises issues of material fact regarding the article’s truth by
implying suppression of exculpatory evidence. The Butler case’s
treatment in the article raises issues of material fact by presenting a false
gist. The case took place before Skeen’s tenure, and although Appellants
argue that “[t]he article notes that the Butler case began before Skeen,”
the article does not. The only reference to Skeen with regard to the Butler
case is that he joined Butler’s attorney in requesting a pardon. A
reasonable reader would infer that Skeen did something wrong and that was his
reason for supporting the pardon.
The
true facts omitted from the article are that in a motion for DNA testing
proceeding in 1999, the victim disclosed information that had never before been
revealed; Dobbs disclosed that information to the defense attorney at that time.
Furthermore, Butler made no allegation that the state suppressed exculpatory
evidence or engaged in prosecutorial misconduct.
The
article misrepresents the facts of yet another case. Mitchell states that
after Mitchell was freed because exculpatory evidence was withheld by the
sheriff’s office, “last year” he sued the county and received $40,000.
The article fails to point out that the evidence was withheld from Mitchell’s
trial in1981, prior to Skeen’s tenure. Appellants contend that the
article clearly indicates that this case occurred before Skeen’s tenure.
After the Mitchell references, however, the article states, “Skeen is
quick to point out that all of those cases began before his first term in 1983.
Still, the blame for them has bled over, and Skeen’s office is accused of
policies that may have resulted in some of the same abuses as his
predecessors.” This statement suggests that although Skeen might not
have been D.A. at the time of the original problem, he was involved in the
misconduct.
The
Cook case, was also originally tried before Skeen’s tenure. Frieden
concedes that a reasonable reader of the Cook discussion could interpret
it as critical of Skeen. The article refers to this case as “one of the
better known examples of prosecutorial misconduct in the nation.” The
Court of Criminal Appeals, however, stated in its Cook opinion that
“the acts of misconduct on the part of the Smith County District Attorney’s
Office and the Tyler Police Department took place nearly twenty years ago and we
do not imply any complicity in said acts on the part of the current District
Attorney or current members of the Tyler Police Department.”44
The
article also suggests an inaccurate account of the timing of the DNA testing in Cook.
The article implies that Skeen’s office knew the results of the DNA test prior
to the plea agreement, when in fact the testing took place after the plea was
entered. The State even attempted to obtain a continuance for the testing, but
was opposed by the defense. Moore was aware of these facts but failed to include
them in the article. The article’s gist raises issues of material fact about
whether it falsely implies misconduct by Skeen, and therefore, whether the
article is substantially true.
Finally,
the article also raises issues of material fact regarding the article’s truth
by implying the D.A.’s office encourages perjury. The main article describes
the Bendy case as “[a] child molestation case in which the victim and
main witness, both minors, say they were told by a prosecutor [Cashell] to
‘just say yes’ to her questions in court, despite the fact that they had
attempted repeatedly to tell the prosecutor that the offense had not
occurred.” The companion article explains that a new trial was granted. The
article may mislead reasonable readers to conclude that the new trial was due to
prosecutorial misconduct, and that Bendy is not guilty. The article omits any
reference to the fact that the new trial was granted solely because the court
failed to shuffle jurors, not because of any alleged prosecutorial misconduct.
Moore admitted that he knew these facts, and admitted that Cashell, as well as
others Moore spoke to, denied that she had told the witnesses to do anything but
to tell the truth on the stand.
As
a result, jurors pooled after the article was published have testified that
because the article implied that the D.A.’s office acts improperly, they were
biased against the State and could not be fair and impartial fact finders. These
comments raise issues of material fact that the article was more damaging to the
Appellees’ reputation in the mind of an average reader than a truthful
statement would have been.
Therefore,
the article as a whole raises genuine issues of material fact about whether the
article is substantially true because it alleges a current rule, pattern, and
policy of misconduct, and it casts more suspicion on Appellees’ actions than
an accurate account would have warranted. Consequently, the trial court did not
err by finding genuine issues of material fact about whether the article was
substantially true. Appellant’s second issue is overruled.
D. Privilege
In
their third issue, Appellees argue that the trial court erred in finding a
genuine issue of material fact about whether the article was protected by
constitutional, statutory, and common-law rights and privileges. We disagree.
1.
Common-Law
There
are two classes of privileges applicable to defamation cases, “absolute”
privileges and “conditional or qualified” privileges.45
Absolute privileges are thought of as immunities because they are based on the
personal position or status of the actor.46
These privileges only apply in limited situations involving the
“administration of the functions of the branches of government, such as
statements made during legislative and judicial proceedings.”47 The judicial proceedings privilege applies to
communications made in the course of a judicial proceeding including any
statement made by the judges, jurors, counsel, parties, or witnesses in open
court, pre-trial hearings, depositions, affidavits, and any of the pleadings or
other papers in the case.48 Although libelous
statements made in connection with a judicial proceeding are absolutely
privileged and will not serve as the basis of a civil action for libel or
slander, regardless of the negligence or malice with which they are made,
re-publication of such statements outside of the judicial context waives the
privilege.49
A
conditional or qualified privilege arises out of the circumstances in which the
allegedly false statement is published in a lawful manner for a lawful purpose.50 This privilege applies to bona fide statements
made under circumstances where the author believes that the public has an
important interest in a particular subject matter requiring publication, or
where the author believes that a person having a common interest in a particular
subject matter is entitled to know the information.51
“A conditional or qualified privilege is defeated, however, when the privilege
is abused, such as when the person making the defamatory statement knows the
statement is false or acts for some purpose other than protecting the privileged
interest.”52 Therefore, because a
conditional or qualified privilege would be defeated by a finding of malice, and
malice is a necessary element of a public figure defamation cause of action, the
privileges are irrelevant here.53
In
this case, we do not decide whether any of the statements in the article fall
within the common law “judicial proceedings” privilege because the privilege
has been waived; all of the statements made in the article were
“republished.” Additionally, because we find genuine issues of material fact
regarding actual malice, Appellants did not prove that the article was protected
by the common law conditional or qualified privilege as a matter of law.
Consequently, the trial court did not err in denying Appellants summary judgment
regarding common law privileges.
2.
Constitutional
The
opinion and fair comment privileges are “constitutional privileges” that
arise from limitations on the plaintiff’s cause of action imposed by the
United States and Texas Constitutions.54 The
privilege of opinion and fair comment grants legal immunity for the honest
expression of opinion on matters of legitimate public interest when based upon a
true or privileged statement of fact.55 The
Texas Supreme Court has explained that Texas courts are bound by the U.S.
Supreme Court’s holding in Milkovich; therefore, we must focus our
analysis on a statement’s verifiability and the entire context in which it was
made.56 Furthermore, whether a publication is
an actionable statement of fact or a constitutionally protected opinion depends
on a reasonable person’s perception of the entire publication, not merely the
individual statements.57 The First Amendment
provides protection for statements that cannot reasonably be interpreted as
stating actual facts about an individual, and because the parties have not
argued any difference in the state and federal constitutional protections we
assume the Texas constitutional protection is the same.58
“[T]he
imputation of a corrupt or dishonorable motive in connection with established
facts is itself to be classified as a statement of fact and as such not to be
within the defense of fair comment.”59 And
while a “word may be merely epithetic in the context of amorphous criticism,
it may also be used as a statement of fact that can be proved true or false.”60 As the Supreme Court explained in Mikovich:
If
a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge
of facts which lead to the conclusion that Jones told an untruth. Even if the
speaker states the facts upon which he bases his opinion, if those facts are
either incorrect or incomplete, or if his assessment of them is erroneous, the
statement may still imply a false assertion of fact. Simply couching such
statements in terms of opinion does not dispel these implications; and the
statement, “In my opinion Jones is a liar,” can cause as much damage to
reputation as the statement, “Jones is a liar.” As Judge Friendly aptly
stated: “[It] would be destructive of the law of libel if a writer could
escape liability for accusations of [defamatory conduct] simply by using,
explicitly or implicitly, the words ‘I think.’“ It is worthy of note that
at common law, even the privilege of fair comment did not extend to “a false
statement of fact, whether it was expressly stated or implied from an expression
of opinion.”61
We
hold that taken as a whole, this article raises issues of material fact about
whether it is capable of defamatory assertions of fact. Its overarching theme
encompasses not only a harsh evaluation of Appellees’ performances but also an
accusation that their allegedly dishonorable motives and actions amounted to
prosecutorial misconduct. The accusatory language in the article includes
statements such as the D.A.’s office is “tainted and inequitable;” the
D.A. has “a win-at-all-costs policy” consisting of “suppressing
evidence,” “planted evidence,” “encouraging perjury,” and
“practicing selective prosecution;” there is “a pattern of lying, cheating
and violations of the law by Smith County prosecutors that wouldn’t be
tolerated in Harris or Dallas County or any of the other, larger offices in the
state;” “[d]ishonesty is encouraged when it helps win convictions;” and
that Smith County has “more innocent people in jail than any other county in
the state.”
Furthermore,
to charge one falsely with the commission of any crime for which he may be
punished by imprisonment is libel per se.62
The article alleges many crimes that are punishable by imprisonment, for
example, coercing false testimony;63 lying,
cheating and violating the law;64 and suppressing
and planting evidence.65 Although Appellants
couch their accusation of this type of criminal prosecutorial misconduct in
terms of a defense attorney’s opinion, such hedging does not mitigate the
defamatory impact of a criminal accusation.66
Furthermore,
as explained in Milkovich, statements in the article such as: “I really
thought the district attorney’s office was just as bound to seek the truth and
justice as any other part of the judicial system, he said. That’s not
what they do here. They don’t actually violate the law. They
manipulate it;” “It’s simply a pattern of lying, cheating and violations
of the law by Smith County prosecutors that wouldn’t be tolerated in Harris or
Dallas County or any of the other, larger offices in the state, said Nugent.
Dishonesty is encouraged when it helps win convictions;” and “Our district
attorney is closely allied with police officers and it’s the only county I
know of where, if you want to settle a case, you talk to the arresting officer
first, not the DA,” may not warrant constitutional protection merely because
they are “opinion.” Statements such as these, found throughout the
article, are sufficient to raise genuine issues of material fact about whether
the article is protected opinion.
On
this basis, we conclude issues of material fact exist about whether the article
includes defamatory assertions of fact that are not constitutionally protected
speech; thus, the trial court did not err by denying summary judgment on this
issue.
3.
Statutory
Texas
Civil Practice and Remedies Code section 73.002 grants a qualified privilege to
media defendants that republish defamatory statements first raised in judicial
proceedings, provided the statements are “fair, true, and impartial.”67 “To determine whether a media defendant’s
account of a judicial proceeding is ‘fair and impartial,’ it must be
interpreted in the sense that the ordinary reader would understand.”68 The media defendant must prove substantial truth
to retain the privilege.69
As
explained above, Appellants did not establish the substantial truth of the
accounts of the judicial proceeding in the article as a matter of law, thus,
issues of material fact exist as to whether the statutory privilege applies in
this case.70 Consequently, the trial court
did not err in denying summary judgment on Appellants’ statutory privilege
defense. Therefore, the Appellants did not prove as a matter of law that the
article was protected by common law, constitutional, or statutory privilege.
Appellant’s third issue is overruled.
III.
Conclusion
Because
we have overruled each of Appellants’ issues, we affirm the trial court’s
judgment. We remand to the trial court for a determination of the costs and
reasonable attorney's fees of this appeal.71
LEE
ANN DAUPHINOT
JUSTICE
PANEL
B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED:
March 18, 2004
NOTES
1.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(6) (Vernon Supp. 2004).
2.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.015 (Vernon 1997).
3.
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 423 (Tex. 2000); Fort
Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App.—Fort Worth
2001, pet. denied).
4.
Tex. R. Civ. P. 166a(c); S.W. Elec. Power Co. v.
Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
5.
S.W. Elec. Power Co., 73 S.W.3d at 215; Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 223 (Tex. 1999); Great Am. Reserve Ins. Co. v. San
Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
6.
Great Am., 391 S.W.2d at 47.
7.
Rhone-Poulenc, 997 S.W.2d at 223; Harwell v. State Farm Mut. Auto.
Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
8.
Great Am., 391 S.W.2d at 47.
9.
Clear Creek Basin, 589 S.W.2d at 678.
10.
Tex. R. Civ. P. 166a(c); Trico Techs. Corp. v.
Montiel, 949 S.W.2d 308, 310 (Tex. 1997).
11.
Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999).
12.
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
13.
Id.
14.
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746,
748 (Tex. 1999).
15.
Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
16.
Pisharodi v. Barrash, 116 S.W.3d 858, 861 (Tex. App.—Corpus Christi
2003, no pet. h.); Reedy v. Webb, 113 S.W.3d 19, 23 (Tex. App.—Tyler
2002, pet. denied); see also Newsom v. Brod, 89 S.W.3d 732, 735–36
(Tex. App.—Houston [1st Dist.] 2002, no pet.).
17.
Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 1997).
18.
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Fort Worth
Star-Telegram, 61 S.W.3d at 709; New Times, Inc. v. Wamstad, 106
S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet. h.).
19.
See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000).
20.
Id.
21.
Id.
22.
Id.
23.
Id. at 115.
24.
E.g., New Times, 106 S.W.3d at 921.
25.
Turner, 38 S.W.3d at 120; New Times, 106 S.W.3d at 925.
26.
Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002); Turner, 38
S.W.3d at 120; Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989).
27.
Bentley, 94 S.W.3d at 591.
28.
Id.
29.
Id.
30.
Id. at 596.
31.
Turner, 38 S.W.3d at 121.
32.
Bentley, 94 S.W.3d at 596.
33.
Id.
34.
Id.
35.
Turner, 38 S.W.3d at 120.
36.
Bentley, 94 S.W.3d at 596.
37.
Id.
38.
Id.
39.
UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 610 (Tex.
App.—San Antonio 2002, no pet.).
40.
Turner, 38 S.W.3d at 115; Gustafson v. City of Austin, 110 S.W.3d
652, 656 (Tex. App.—Austin 2003, pet. denied); Scripps Tex. Newspapers,
L.P. v. Belalcazar, 99 S.W.3d 829, 835 (Tex. App.—Corpus Christi 2003,
pet. denied); UTV of San Antonio, 82 S.W.3d at 611.
41.
Turner, 38 S.W.3d at 115.
42.
Gustafson, 110 S.W.3d at 656; Scripps Tex. Newspapers, 99 S.W.3d
at 835; UTV of San Antonio, 82 S.W.3d at 611.
43.
Gustafson, 110 S.W.3d at 656.
44.
Cook v. State, 940 S.W.2d 623, 627 n.6. (Tex. Crim. App. 1996).
45.
Hurlbut v. Gulf Atl. Life Ins., 749 S.W.2d 762, 768 (Tex. 1987); Granada
Biosciences, Inc. v. Forbes, Inc., 49 S.W.3d 610, 618 (Tex. App.—Houston
[14th Dist.] 2001), rev’d on other grounds, 47 Tex. Sup. Ct. J. 162,
2003 WL 22999362 (Tex. Dec. 19, 2003).
46.
Hurlbut, 749 S.W.2d at 768; Granada, 49 S.W.3d at 618.
47.
Hurlbut, 749 S.W.2d at 768; Granada, 49 S.W.3d at 618–19.
48.
James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982); Dallas ISD v.
Finlan, 27 S.W.3d 220, 238 (Tex. App.—Dallas 2000), cert. denied,
534 U.S. 949 (2001).
49.
James, 637 S.W.2d at 916; Dallas ISD, 27 S.W.3d at 238.
50.
Granada, 49 S.W.3d at 619; see also Minyard Food Stores, Inc. v.
Goodman, 50 S.W.3d 131, 139–40 (Tex. App.—Fort Worth 2001), rev’d
in part on other grounds, 80 S.W.3d 573 (Tex. 2002).
51.
See Granada, 49 S.W.3d at 619; Minyard Food Stores, 50 S.W.3d at
139–40.
52.
Granada, 49 S.W.3d at 619.
53.
Id.
54.
Bentley, 94 S.W.3d at 578–79.
55.
Milkovich v. Lorain Journal Co., 497 U.S. 1, 13, 110 S. Ct. 2695, 2702-03
(1990); Bentley, 94 S.W.3d at 579.
56.
Bentley, 94 S.W.3d at 581; Pisharodi, 116 S.W.3d at 862.
57.
Bentley, 94 S.W.3d at 579.
58.
Id. at 579–80; see also Granada, 49 S.W.3d at 619.
59.
Bentley, 94 S.W.3d at 583.
60.
Id. at 581–82.
61.
Milkovich, 497 U.S. at 18–19, 110 S. Ct. at 2705–06; Bentley,
94 S.W.3d at 583–84 (citations omitted).
62.
Christy v. Stauffer Publ’n , Inc., 437 S.W.2d 814, 815 (Tex. 1969); see
also Chang v. Linh Nguyen, 81 S.W.3d 314, 316 (Tex. App.—Houston [14th
Dist.] 2001, no pet.).
63.
See Tex. Penal Code Ann. § 36.05 (Vernon 2003) (tampering
with witness).
64.
See id. § 39.02(a)(1) (abuse of official capacity).
65.
See id. § 37.09 (tampering with or fabricating physical
evidence).
66.
See Bentley, 94 S.W.3d at 583–84.
67.
Tex. Civ. Prac. & Rem. Code Ann. § 73.002; Tex. Monthly, Inc. v.
Transamerican Natural Gas Corp., 7 S.W.3d 801, 805 (Tex. App.—Houston [1st
Dist.] 1999, no pet.).
68.
Tex. Monthly, 7 S.W.3d at 805; see also Scripps Tex. Newspapers,
99 S.W.3d at 836; Entravision Communications Corp. v. Belalcazar, 99
S.W.3d 393, 398–99 (Tex. App.—Corpus Christi 2003, pet. denied).
69.
See Swate v. Schiffers, 975 S.W.2d 70, 75 (Tex. App.—San Antonio 1998,
pet. denied); see also Tex. Monthly, 7 S.W.3d at 805.
70.
See Scripps Tex. Newspapers, 99 S.W.3d at 837; Entravision
Communications Corp., 99 S.W.3d at 399.
71.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.015 (Vernon 1997).