Celebrating 125 Years

Paul Watler Speaks

Steve Fogle
Paul Watler Speaks
Can't Handle the Truth?
The Truth Defense in the Texas Supreme Court

A decades-long string of libel opinions by the Texas Supreme Court in favor of media defendants came to a resounding halt this summer. In Neely v. Wilson1, the Court reversed summary judgment for an Austin television station. At first blush, the majority opinion seemingly cast a shadow over much of the defendant-friendly case law of the past quarter-century. A closer look reveals an unfortunate outcome in an opinion reaffirming principles of defamation law important to media libel defendants.

Neely revisited McIlvain v. Jacobs2, the Court's 1990 decision that established the parameters of the "substantial truth" defense in libel cases. McIlvain held that an allegedly defamatory report is substantially true if it is no more damaging to a plaintiff's reputation in the mind of an ordinary person than a truthful report.3 Some Texas courts of appeal and the Fifth Circuit had interpreted McIlvain to find 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. However, the five-justice majority in Neely spurned that reading of McIlvain by those courts.

McIlvain was the first of nine consecutive libel opinions by the Court over a 15-year period decided in favor of media defendants in whole or substantial part.4 Along the way, the Court spelled out interpretations of substantial truth, actual malice and public figure law that readily lent themselves to positive outcomes for media defendants in subsequent lower court decisions.5

Although Neely brought this streak to an end, it did not overrule any of the Court's precedents made during that run, notwithstanding its refinement of McIlvain. As Neely points out, the Court had never ordained the "third party allegation rule." So, its rejection hardly heralds a seismic shift in Texas law.6

Make no mistake, Neely is a bad result for the media defendants. But its negative impact lies in misapplying the substantial truth doctrine, not in rewriting any core defamation concept enunciated by the Court since 1990. Indeed, those principles were reaffirmed in Neely with the Court citing with approval seven of its nine landmark decisions from 1990–2005.7

The Neely majority missed that the harm differential must be material. An insignificant difference to reputation does not defeat substantial truth.

The Neely majority simply got it wrong when it came to applying the substantial truth doctrine. In Neely, the broadcast report at issue asked viewers whether they would want to know if their surgeon had performed surgery while under the influence of controlled substances. When the plaintiff surgeon sued for libel, the station moved for summary judgment on substantial truth because it had accurately reported third-party allegations in the form of patient complaints to the medical board. In fact, the plaintiff physician had been disciplined by the medical board for self-prescribing controlled substances, but there was no finding that he had used drugs while performing surgery. The Neely majority used that fine distinction to deny summary judgment.

The majority held that the fact finder "may conclude that the gist results in a less favorable view of Neely to ordinary viewers than an accurate broadcast would have."8 The Neely majority missed the notion that the harm differential must be material. An insignificant difference to reputation, which most assuredly was the case in Neely, does not defeat the substantial truth defense.9

Three dissenting justices excoriated the majority's flawed application of the substantial truth doctrine.

If the news report is damning, it is because it conveys substantial truth. The doctor performed brain surgeries during a time he was ingesting seven narcotics, eight other medications, and alcohol...The medical board investigator concluded that the doctor was subject to discipline based on his "[i]nability to practice medicine with reasonable skill and safety because of illness or substance abuse."10

Chief Justice Wallace Jefferson's dissenting opinion dismissed the majority's view that the doctor's denials about his drug issue during surgery were sufficient to raise a fact issue on substantial truth. The dissent found no material distinction between the literal and substantial truth. "Because the broadcast did not create a different effect on the average viewer's mind than the truth would have, I would hold that it is substantially true," Jefferson wrote.11

The dissent parried the majority's rejection of the third-party allegation rule, calling it an unduly restrictive view of McIlvain.12 Yet, other than disparate treatment of the allegation doctrine, the majority and dissent restated and relied on the same well–established principles of modern Texas libel jurisprudence.

First Amendment scholar Alexander Meiklejohn declared the U.S. Supreme Court's 1964 decision of New York Times Co. v. Sullivan was "an occasion for dancing in the streets." No First Amendment advocates broke out their dancing shoes over Neely v. Wilson this summer. A motion for rehearing by the media defendants remains pending before the Texas Supreme Court. It is hoped that the Court will correct its error and withdraw its June opinion. However, practitioners and jurists who ponder the June majority opinion in Neely in future cases must pay careful heed that the majority did not disturb the legal tenets that protect freedom of the press – even if it glaringly misapplied one of them.

Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.

12013 WL 3240040 (Texas, June 28, 2013).
2McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990).
3794 S.W.2d at 16.
4After McIlvain, the Court decided Herald–Post Publishing Co. v. Hill, 891 S.W.2d 638 (Tex. 1994); WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998); Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413 (Tex. 2000); Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000); Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (Bentley was a qualified media victory as it affirmed a jury finding of actual malice against a local–access cable program host but vacated an excessive $7 million damages verdict); New Times v. Isaacks, 146 S.W.3d 144 (Tex. 2004); Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005); Freedom Newspapers v. Cantu, 168 S.W.3d 847 (Tex. 2005).
5See, e.g., Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467 (Tex. App.–Dallas 1994); Associated Press v. Cook, 17 S.W.3d 447 (Tex. App.–Houston [1st Dist.] 2000); Wheeler v. New Times, Inc., 49 S.W.3d 471 (Tex. App.–Dallas 2001); Belo Corp. v. Publicaciones Paso Del Norte, S.A. De C.V., 243 S.W.3d 152 (Tex. App.–El Paso 2007); Palestine Herald-Press Co. v. Zimmer, 257 S.W.2d 504 (Tex. App.–Tyler 2008).
6The only decisions disapproved were treatments of third-party allegations by Texas courts of appeal and the Fifth Circuit. Neely at *8 n.17.
7McIlvain v. Jacobs; WFAA-TV, Inc. v. McLemore; Huckabee v. Time Warner Entm't Co.; Turner v. KTRK Television, Inc.; Bentley v. Bunton,; New Times v. Isaacks; Hearst Corp. v. Skeen.
8Neely at *10.
9See e.g., Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993) (a "news report that contains a false statement is actionable only when significantly greater opprobrium results from the report containing the falsehood than would result from the report without the falsehood.") (emphasis added; internal quotations and citation omitted).
10Neely at *21.
11Neely at *28.
12Neely at *29.

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