In this time of intense debate over the appropriate scope of free speech rights on matters of public concern, the Texas Supreme Court recently sided in favor of broadly protecting such speech. Hopefully, this will represent a harbinger of further speech protection to come.
On Friday, January 27, 2017, the Texas Supreme Court issued its 5-4 opinion in Brady v. Klentzman et al., No. 15-0056, affirming a decision by the Houston First Court of Appeals to reverse and remand for new trial a defamation case filed by Wade Brady against a newspaper, The West Fort Bend Star (Star), and reporter (LeaAnne Klentzman) involving the question whether speech in a newspaper article related to matters of public concern. Before trial in 2011, the trial court concluded that the article in question involved matters of only private concern, and thus instructed the jury that the defendants bore the burden to prove truth (instead of plaintiff proving falsity) and plaintiff could recover punitive damages by a showing of common law malice (i.e., ill will, spite, or evil motive) instead of constitutional “actual malice” (i.e., knowledge of falsity or reckless disregard for the truth). The jury returned a 10-2 verdict in favor of the plaintiff, awarding $50,000 in actual damages and, after a required reduction by law, $200,000 in punitive damages. The First Court of Appeals reversed and remanded for a new trial, holding that the article involved matters of public concern and thus the jury should have been instructed consistent with the requirement that the plaintiff prove falsity and, to obtain punitive damages, actual malice. While the majority opinion by the Texas Supreme Court was only signed by five of the nine justices, all nine justices agreed that the speech at issue related to matters of public concern, and thus the trial court erred in its instructions to the jury. The dissenting opinion stated: “This is a suit against media defendants for public speech.” (emphasis added). The four dissenters would have ended the case without a remand and retrial, arguing that there was insufficient evidence of actual damages as a matter of law, and thus the Court should have reversed and rendered judgment for the media defendants.
The Jackson Walker team of partners John K. Edwards and Amanda Bush and associate Luke Gilman have represented the media defendants in this case on a pro bono basis since the case began over 13 years ago. During oral argument in September, 2016 before the high court, Mr. Edwards emphasized the importance of the public concern and damages issues to free speech protections in Texas, urging the Court to reverse and render judgment to finally end the long running dispute. While the 5-4 decision did not end the fight just yet, there remains an opportunity if a motion for rehearing on the damages question is successful. In the meantime, the majority opinion on the issue of speech on matters of public concern remains an important one that hopefully signals consistent free speech protection by the Court in the near future.
The Majority Opinion
The newspaper article at issue involved the alleged abuse of office by a public official – Chief Deputy Craig Brady of the Fort Bend County Sheriff’s Department – who allegedly intervened repeatedly on behalf of his son – Wade Brady – whenever the son was involved in law enforcement entanglements. One of the key questions at trial and on appeal was whether the article related to matters of public concern or purely private concern, which affects the burdens of proof at trial. The jury was instructed consistent with the lesser burdens of proof associated with speech on matters of private concern, leading to the verdict by the jury in favor of the plaintiff. On appeal, the media defendants contended that the trial court erred by instructing the jury in this manner because the speech related to matters of public concern, namely the conduct of a public official and law enforcement matters. The defendants also alleged that the evidence of actual damages – mental anguish and reputational harm – was so deficient that it constituted no evidence as a matter of law. Ultimately, the Texas Supreme Court agreed that the speech at issue related to matters of public concern, but split over whether legally sufficient evidence of actual damages existed.
The Majority Opinion, authored by Justice Devine, first addressed the threshold question of whether the article describing plaintiff’s encounters with the police only embraced matters of public concern and found that it did. The Court relied upon the United States Supreme Court’s public concern test set forth most recently in Snyder v. Phelps, 562 U.S. 443, 453 (2011), which asked whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court found that plaintiff’s encounters with law enforcement related to the general subject matter of the article—the Chief Deputy’s use of authority on his son’s behalf. Further, the Court declined plaintiff’s invitation to second guess the editorial decisions of the newspaper with respect to specific descriptions and details of the encounters, requiring only a “logical nexus” between any particular detail and the general subject matter of the article. The “logical nexus” test was first set forth in Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474 (Tex. 1995).
The Court also rejected plaintiff’s argument that this test should change if some statements in the article can be shown to be false. The Court properly concluded that the truth or falsity of the statements did not change the fact that the subject matter of the speech related to matters of public concern. The trial court thus erred in (1) requiring the defendants to prove truth instead of plaintiff proving falsity; and (2) failing to require plaintiff to establish actual malice before obtaining punitive damages.
On the issue of whether adequate damages had been presented at trial, the Court found general testimony that “some people had a low opinion of Wade following the article” to be a sufficient showing of “actual loss of reputation.” It placed particular weight on plaintiff being asked to quit his job with a company that installed decals on the county’s patrol cars as proof of loss due to the article. The Court did not address the sufficiency of the evidence for mental anguish damages.
The Dissenting Opinion
Four of the Justices would have gone a step further, reversing and rendering judgment in favor of the defendants without a new trial. Chief Justice Hecht authored the opinion, which pointedly addressed the lack of sufficient evidence of mental anguish damages to support any judgment and suggested closer scrutiny of such damages in media defamation cases:
If this were a slip-and-fall case, there would be no evidence of compensable mental anguish. But it is not. This case necessarily involves the media defendants’ exercise of First Amendment rights. Juries in defamation cases are not charged with protecting those rights in awarding damages. That responsibility belongs to the courts reviewing the evidence to support jury findings. The Court notes, but does not take seriously, that responsibility in this case.
With respect to reputational harm, the dissent likewise took the majority to task over the sparse evidence presented at trial. The majority found sufficient general statements that plaintiff’s reputation before the article “was that he was a good kid” contrasted with his father’s testimony that he had encountered (unidentified) “people in the community that had a negative impression” to justify a damages award. It further pointed to evidence that plaintiff was asked to leave his job for a company that installed decals on the county’s patrol cars because of the article, although the evidence did not establish affirmatively that this request resulted from reputational harm caused by the article. The evidence also showed that plaintiff resumed work at the same business. The dissent found this evidence woefully short of that required to sustain an award of reputational harm damages.
John K. Edwards, Amanda Bush, and Luke Gilman of Jackson Walker LLP, Houston, TX represented Ms. Klentzman and The West Fort Bend Star. Plaintiff is represented by John Zavitsanos, Todd Mensing, and Jane Robinson of Ahmad, Zavitsanos & Anaipakos, Houston, TX.
The opinions expressed are those of the authors 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.