By Joel Glover
A Texas court reaffirmed last month that truth is still a strong defense, at the summary judgment stage, to a defamation claim against a newspaper regarding a matter of public concern. In Gallaher v. Denton Media Company, the Fort Worth Court of Appeals reinforced the statutory protections afforded to journalists against such claims and explained the contours of the defense. Gallaher is significant because it shows the defense’s strength even in the face of conflicting accounts about the accuracy of sources considered prior to publication.
Truth is a defense to libel under section 73.005 of the Texas Civil Practice and Remedies Code. Under that section, “[t]he truth of the statement in the publication on which an action for libel is based is a defense to the action. . . . In an action brought against a newspaper or other periodical or broadcaster, the defense . . . applies to an accurate reporting of allegations made by a third party regarding a matter of public concern.”
It is worth noting that the defense does not change the plaintiff’s burden to prove falsity as an affirmative element of his or her libel claim. That longstanding requirement remains, particularly where the subject is a public figure and the speaker is a media defendant as was the case here. But Gallaher confirms that the statutory affirmative defense of truth is another tool to deploy in Texas in a dispositive motion.
Todd Gallaher brought the lawsuit after the Denton Record-Chronicle wrote a series of four articles in 2018 and 2019 about his potential hiring onto the staff of a Denton County commissioner. The articles focused on allegations of misconduct made against Gallaher in 2008 during his time as a staffer for a Texas state representative. Gallaher denied the allegations with great force.
The articles reported that Gallaher used an email address other than his “to disseminate damaging photos of a political rival” and that the newspaper reviewed OAG documents “showing that Gallaher had been ‘prosecuted for a charge of misrepresentation of identity in a 2008 primary election,’” calling his body of misconduct a “Political Scheme.” Subsequent reporting went on to cover Gallaher’s refutations in great detail and noted that he was ultimately hired by the county.
Following these articles, Gallaher sued the newspaper for defamation and lost at the trial court when the newspaper was granted summary judgment. The Court of Appeals affirmed that decision, holding “that the newspaper established as a matter of law its . . . defense related to the statements that Gallaher was charged, prosecuted, and sentenced for a political scheme.”
Gallaher tried to show falsity (while also rebutting the truth defense) by arguing that the newspaper misreported his history in saying he was prosecuted when, according to Gallaher, he was exonerated of any wrongdoing, pointing out that the newspaper relied on a shortened, incomplete spreadsheet to make these statements. Unmoved, the Court of Appeals responded that “it is fundamental to First Amendment and defamation jurisprudence that the media enjoy a privilege to report on judicial and official proceedings without regard for whether the information from such proceedings is actually true.” In other words, the newspaper need only “prove that it accurately reported the information it received from the OAG—which it did.”
And because the reporting related to an alleged criminal prosecution of a soon to be or current public official, the newspaper conclusively established that the articles were regarding a matter of public concern. This fully satisfied the statute and disposed of Gallaher’s claims.
The opinion is a welcome reminder in an era of high-profile defamation claims that accurate reporting of official proceedings—even on unpopular or hot-button topics—puts publishers on solid ground in defending a defamation suit.
Joel R. Glover is an attorney in the Trial & Appellate Litigation practice of Jackson Walker’s Houston office. Joel represents clients throughout the United States in media and entertainment litigation, trademark and copyright infringement litigation, energy litigation, and financial services litigation. In addition to his practice, Joel volunteers his time with the American Bar Association Forum on Communications Law, the ABA Tort Trial & Insurance Practice Section’s Media, Privacy, and Advertising Law Committee, Alley Theatre, and the West Point Society of Greater Houston.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance related to First Amendment litigation, please contact an attorney in Jackson Walker’s Media Litigation practice.