United States: The Media Scores A "Win" At The Texas Supreme Court

Last Updated: March 9 2017
Article by Joseph Larsen

The Texas Supreme Court's opinion in Brady v. Klentzman, --- S.W.3d ----, 2017 WL 387217 (Tex. 2017) has been characterized as a "win" for the media after a "tough week," but its practical import appears to further expose the media to defamation lawsuits for reporting on matters of public concern. Brady was a clear win for the media in that the court reiterated several important First Amendment principles. The court, however, ultimately sent the case back to the jury for a new trial with a different jury charge rather than dismiss the case for failure to prove any actual damages.
The plaintiff, Wade Brady, sued regarding a newspaper article that, among other things, portrayed him as "unruly and intoxicated" when he interacted with a state trooper and described that Wade's father, the chief sheriff's deputy, "continually made contact with the officers" who ticketed his son and described that the officers "were intimidated" when Chief Brady "demanded any and all audio tapes or notes from that incident in their possession." Personnel in the sheriff's office were "wondering when the other shoe will drop." The article included reporting of other prior encounters of a similar nature.
Wade sued for libel and libel per se, alleging that the article was a malicious attempt to portray him as a criminal who used his father's connections to skirt the charges filed against him. According to Wade, the newspaper "consciously ignored the truth in preparing the story," by never disclosing that he was acquitted of the minor-in-possession charge. The jury assessed $50,000 in actual damages for mental anguish and damages to Wade's reputation as well as punitive damages of $1,000,000, which the trial court reduced to $200,000 without requiring the plaintiff to prove that the newspaper's statements were false and without a finding that the newspaper knew the statements were false or was reckless regarding their falsity.
The court of appeals — holding that the article covered a matter of public concern — reversed and remanded for a new trial, so the jury could evaluate the evidence under the proper standard. In affirming the court of appeals' opinion, the Texas Supreme Court recognized that the First Amendment (1) requires that a private individual who sues a media defendant for defamation over statements of public concern bear the burden of proof that the statements were false (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776–77 (1986)) and (2) in order to recover punitive damages, such a plaintiff has the burden of proof that the defendant acted with "knowledge of falsity or reckless disregard for the truth" (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974)).
The court noted the U.S. Supreme Court jurisprudence holding that speech deals with matters of public concern when it can be "fairly considered as relating to any matter of political, social, or other concern to the community." (citing Snyder v. Phelps, 562 U.S. 443 (2011)). The court held that the salacious details of Wade's encounters with law enforcement directly relate to the general subject matter of the article: Chief Brady's use of authority on Wade's behalf. Courts have declined "to get involved in deciding the newsworthiness of specific details in a newsworthy story where the details were 'substantially related' to the story" and should not "make editorial decisions for the media regarding information directly related to matters of public concern." 
Because the entire article must be considered as embracing matters of public concern, the trial court jury charge did not comply with First Amendment standards. Although falsity was not an element of defamation at common law, the First Amendment requires private individuals to meet the burden of proof that statements made by media defendants on matters of public concern are false, but here the jury charge required the media defendants to prove that their statements were true. The First Amendment also requires that a private plaintiff prove actual malice, that is, "knowledge of falsity or reckless disregard for the truth," before recovering anything more than actual damages for a statement on a matter of public concern, but "malice" in the jury charge referred only to an intent to cause injury or conscious indifference to the risk of injury; it was not tied to the truth or falsity of the statements. The court ruled that in addition to proving the traditional "malice" required to obtain exemplary damages under Texas law, one seeking exemplary damages for speech on a public matter must also prove constitutional "actual malice."
These excellent holdings are based largely upon the court's own precedent and established First Amendment jurisprudence. The higher standard in the jury charge may foreclose a jury finding against the newspaper in the retrial. The court, however, sent the case back to the jury on thin evidence of damages, raising the specter of a jury trial based upon speculation in a media-unfriendly environment. It is important to this analysis that while Wade pleaded that the statements in the article were defamatory per se, which refers to statements that are so obviously harmful that general damages such as mental anguish and loss of reputation may be presumed, he did not argue this theory at trial, but rather argued that there was evidence of mental-anguish and loss-of-reputation damages in the record.
The court noted that damages in defamation cases must compensate for "actual injuries" and cannot merely be "a disguised disapproval of the defendant." That is, there must be evidence that people believed the statements and the plaintiff's reputation was actually affected. The court held that Wade had presented such evidence. However, the evidence as summarized by the dissent seems to fall short of the mark:

One cannot fairly infer that Wade's reputation was injured at all, let alone on account of the article. If anything, even assuming that the article was related to Wade's being asked to quit his job, he returned to the same job, indicating that his reputation was not injured. This was no evidence that Wade's reputation suffered in any way, and certainly no evidence of an injury for which $30,000 would be reasonable compensation.

With regard to Wade's claims of mental anguish, the evidence is that Wade, shy and introverted before the article, was shy and introverted after the article. This would be far less than would be required as evidence for compensable mental anguish in a case involving any other type of tort — for example a slip and fall. This is a case attacking speech regarding a matter of public concern.
The Greek tyrant Pyrrhus is reputed to have said, following the Battle of Ascalum, "If we are victorious in one more battle with the Romans, we shall be utterly ruined." After this "win" before the Texas Supreme Court, we might watch warily for the next media victory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.