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.
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