By Stacy Allen
For the past two decades since the Texas Supreme Court’s decision in McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990), Texas journalists have understood that they are insulated from liability for defamation when reporting the allegations of third-parties as long as those allegations are reported accurately (even if the allegations themselves later turn out to be false). But in a recent appeal from lower court decisions upholding the so-called “third-party allegation rule”, an Austin neurosurgeon has asked the Texas Supreme Court to limit or reverse its holding in McIlvain, in favor of the traditional common law “republication rule” which holds liable anyone who republishes false and defamatory statements made by third-parties. The fate of the third-party allegation rule could have a substantial impact on newsrooms across Texas.
In Neely et al. v. Wilson et al. (No. 11-0228), an Austin reporter and television station broadcast an investigative report about alleged malpractice and other improper conduct by Dr. Byron Neely, an Austin neurosurgeon. The report stated that Dr. Neely had been suspended by the Texas Medical Board for, among other things, prescribing himself controlled substances that had the potential to interfere with his ability to perform surgery. The story also reported on malpractice lawsuits filed against Dr. Neely, and included interviews with former patients and others related to the lawsuits. Although Dr. Neely declined to comment for the story, the report included information his attorneys provided to the reporter that was favorable to his position, including the fact that two highly qualified neurosurgeons agreed with the medical decisions made by Dr. Neely and that the Texas Medical Board had reviewed one of the complaints and found no wrongdoing. Neely claims that the broadcast caused his practice to collapse.
Summary judgment was granted in favor of the broadcaster Respondents. The Third Court of Appeals affirmed in reliance on McIlvain, but noted “perplexing questions regarding the doctrinal basis for [the holding in McIlvain], questions that the McIlvain opinion did not answer” (which may explain why the Supreme Court granted certiorari and agreed to review the decision). The McIlvain case was a libel suit complaining of a television news report concerning an internal investigation conducted by the City of Houston into complaints that plaintiffs (who were city employees) were drinking liquor on the job and forcing other workers to care for one plaintiff’s elderly father on City time.
The trial court granted the media defendants’ summary judgment but the court of appeals reversed, finding that it was error to grant summary judgment when “the evidence certainly does not show that the underlying charges were true as a matter of law.” In a two-page opinion, the Supreme Court reversed the court of appeals, holding that it was enough that a comparison of the facts reported by the media defendants and the City’s investigation showed that the report about the investigation and evidence considered was “substantially correct, accurate, and not misleading”, without reaching the truth or falsity of the underlying charges being investigated.
Supporters of the third-party allegation rule note the chilling effect that strict adherence to the republication rule would have on the reporting of newsworthy investigations and allegations and matters of public interest. Appellate courts which have adhered to the third-party allegation rule since McIlvain have shared such concerns, fearing that:
“[third-party allegations of misconduct] would never be reported by the media for fear an investigation or other proceeding might later prove the allegations untrue, thereby subjecting the media to suit for defamation. Furthermore, when would an allegation be proven true or untrue for purposes of defamation? After an investigation? After a court trial? After an appeal? Undoubtedly, the volume of litigation and concomitant chilling effect on the media under such circumstances would be incalculable.”
KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. App.—Houston [14th Dist.] 1997, no writ). Petitioners in Neely counter that the third-party allegation rule goes too far by “[g]iving blanket immunity to all media defendants from all liability for publishing defamatory statements made by others” in violation of the protection of reputation recognized by the Texas Constitution and common law.
Dilution or abrogation of the third-party allegation rule as it has come to be applied by Texas courts would profoundly change the decision-making process of news reporters and editors. No longer would the question be “Has the statement been accurately reported and attributed?” but rather “Is the statement itself substantially true and are we willing to risk liability if it is not?” The independent investigation and corroboration of the truth of third-party allegations would likely delay publication of many stories and impose new burdens on news organizations; abolishing the third-party allegation rule altogether would make it more difficult for media defendants to obtain summary judgments in libel cases, thus increasing litigation costs. The Neely case is set to be heard by the Texas Supreme Court on September 13, 2012. Stay tuned.
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. For questions, please contact Stacy Allen or a member of the Media Law practice.