LITIGATION ALERT: Free Speech in Texas

Litigation Update, Litigation, Articles / March 9, 2013 / Michael A. Logan and Richard L. Hathaway

Free Speech in Texas:

Media Liability for Reporting of Untrue Allegations

September, 2013

Authors:
Michael A. Logan
Richard L. Hathaway

First amendment scholars widely agree that when it comes to protecting free speech and prohibiting defamation, it is a zero-sum game. The United States Supreme Court has recognized this tension, noting "[w]hatever is added to the field of libel is taken from the field of free debate."[1] However, the Texas Supreme Court's recent holding in Neely v. Wilson may have shifted the balance away from free speech by determining that when the news media repeats statements that are untrue the media may be liable and may not always rely on the third-party allegation defense.

A. The Broadcast.

The central issue in Neely was the liability of a media defendant for republishing a third-party's allegedly defamatory statements. On January 4, 2004, KEYE-TV in Austin, Texas broadcasted a 7-minute investigative report that opened with the following:

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?

During the broadcast, a reporter interviewed a couple that had sued the surgeon in question for malpractice due to what they alleged was an unnecessary procedure. They alleged the surgery resulted in a serious infection and several follow up surgeries. The broadcast also discussed another instance in which the surgeon was sued in connection with a patient's suicide following an alleged misdiagnosis.

The broadcast reported that the Texas Medical Board (the "Board") investigated the surgeon and found a history of hand tremors, and found that he was writing prescriptions for himself. The broadcast contained comments from one of the surgeon's former patients that included the assertion that the surgeon was doing brain surgery while on "[n]arcotics, opiates." It also included a discussion of the Board's Order placing the surgeon on probation and prohibiting him from prescribing to himself and his family.

The broadcast contained a small portion of an interview with a Board representative who stated he did not know why the Order did not include drug testing. Following that statement, the broadcast included another statement from one of the surgeon's patients wherein he stated that he thought it was deplorable and that if it were any other profession, the surgeon would be in jail.

The broadcast included a statement from the surgeon's attorney. The attorney stated that two highly qualified neurosurgeons found that in the one case, the surgery was necessary and the Board found the surgeon had not committed any wrongdoing. The broadcast revealed that the other lawsuit was dismissed, but other suits were pending against the surgeon, and that the Board posts final decisions on its website.

B. The Legal Issues.

After the broadcast, the surgeon's practice collapsed virtually overnight. The surgeon sued KEYE-TV for defamation (libel). The trial court granted the television station's motion for summary judgment. The intermediate appellate court affirmed the trial court's order. The Texas Supreme Court granted the surgeon's petition for review of the trial court's grant of summary judgment. The central issue for the Neely court was whether the surgeon raised a genuine issue of material fact to defeat the television station's defense of "substantial truth via the accurate reporting of third-party allegations in a government proceeding."

It is a universal rule that republishing another's defamatory statement will subject the speaker to liability. Truth, however, is always a defense to defamation liability. Truth is measured by what is considered "substantial truth." Relying on McIlvain v. Jacobs,[2] the television station asserted that none of the statements were actionable as a matter of law because it accurately reported third-party allegations. As with several Texas courts and the Fifth Circuit, the television station asserted that the Texas Supreme Court's 1990 holding in McIlvain stood for the proposition that "a media defendant's reporting of third-party allegations is substantially true if it accurately reports the allegations—even if the allegations themselves are false." As is noted below, the Neely court did not agree that McIlvain stood for that proposition.

The truth or falsity of the broadcast was a primary issue for the Neely Court. The court noted that "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." To determine if the broadcast was substantially true, the court examined its "gist."

The gist, or meaning, of a broadcast is examined from the perspective of how a person of ordinary intelligence would view it. A broadcast that correctly conveys the gist of a story but has some specific statements that are false is still considered substantially true. However, a broadcast that conveys a false and defamatory gist by omitting or juxtaposing facts, even though all the statements are in isolation factually true, is not considered "substantially true" and is therefore actionable. If the media defendant had been able to conclusively establish that the gist of the broadcast was substantially true, it could have prevailed.

C. The Holding and why it is controversial.

The Neely Court reversed and remanded the trial court's grant of summary judgment for the media defendant. The Court held that a person of ordinary intelligence could conclude that the gist of the broadcast at issue was that the surgeon was disciplined for operating on patients while taking dangerous drugs or controlled substances. Armed with the meaning of the broadcast, the Court found that the surgeon raised a genuine issue of material fact by providing evidence that the Board did not discipline him for taking dangerous drugs or controlled substances and he had never performed surgery while taking them. The Board disciplined him for self-prescribing medications without a visit to another doctor. Because the gist of the report was both untrue and damaged his reputation more than an accurate report of the events, there was a genuine issue of material fact concerning the application of the third party reporting privilege.

This holding is controversial in that it effectively overrules a simplified application of the third-party allegation rule and raises a media defendant's burden to more carefully analyze either the truthfulness of the reported allegations and/or the manner in which the report presents the allegations. The Supreme Court held that McIlvain did not stand for the proposition that the media has a defense simply by accurately reporting third-party allegations under investigation. It determined that McIlvain stood for the proposition that "if a broadcast reports that allegations were made and an investigation proves those allegations to be true, the defamation claim is brought within the scope of the substantial truth defense." In short, "a government investigation that finds allegations to be true is one method of proving substantial truth." As such, it is no longer the case that in every instance the media's accurate reporting of allegations raised in a governmental investigation, regardless of the truth of the allegations, constitutes substantial truth sufficient to overcome a defamation claim.

[1] New York Times v. Sullivan, 376 U.S. 254, 272 (1964).

[2] 794 S.W.2d 14 (Tex. 1990).

This Litigation Alert is a summary of recent developments in the law and is provided for informational purposes only. It is not intended to constitute legal advice or to create an attorney-client relationship. Readers should obtain legal advice specific to their situation in connection with topics discussed.

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