New Times, Inc. v. Isaacks

• Citation: 146 S.W.3d 144
• Decision Date: 03 September 2004
• Docket Number: No. 03-0019.,03-0019.
• Parties: NEW TIMES, INC. d/b/a Dallas Observer, Dallas Observer, L.P., Rose Farley, Julie Lyons, and Patrick Williams, Petitioners, v. Bruce ISAACKS and Darlene A. Whitten, Respondents.
• Court: Supreme Court of Texas

146 S.W.3d 144

NEW TIMES, INC. d/b/a Dallas Observer, Dallas Observer, L.P., Rose Farley, Julie Lyons, and Patrick Williams, Petitioners, v. Bruce ISAACKS and Darlene A. Whitten, Respondents.

No. 03-0019.

Supreme Court of Texas.

Argued December 3, 2003.

Decided September 3, 2004.

Rehearing Denied November 5, 2004.

Appeal from the 158th District Court, Denton County, Bob McCoy, J Steven P. Suskin, Law Office of Steven P. Suskin, Phoenix, AZ, R. James George Jr., James Alan Hemphill, George & Donaldson, L.L.P., Peter D. Kennedy, Graves, Dougherty, Hearon & Moody, P.C., Austin, for Petitioner.

James Scott Reib, Law Group of Rocky Haire and Scott Reib, and Michael J. Whitten, The Whitten Law Firm, Mike Griffin and Michelle Jones, Griffin, Whitten, Jones & Reib, Denton, TX, for Respondent.

Gregory S. Coleman, Weil Gotshal & Manges LLP, Austin, TX, for Amicus Curiae Association of American Publishers, Inc.

Justice JEFFERSON delivered the opinion of the Court.

This is a libel suit brought by a judge and a district attorney against a newspaper and its staff for publishing a satirical article the respondents contend was defamatory. The trial court denied the petitioners' motions for summary judgment, and the court of appeals affirmed. 91 S.W.3d 844. We reverse the court of appeals' judgment and render judgment that plaintiffs take nothing.

I Factual Background

In November 1999, thirteen-year-old Christopher Beamon, a Ponder, Texas seventh grader, was arrested and detained for five days in a juvenile detention facility after the Halloween story he wrote as a school assignment was deemed to contain "terroristic threats." According to Beamon, his teacher assigned students the task of writing a scary story about being home alone in the dark and hearing noises. Beamon penned a tale that described shooting a teacher and two classmates. He received a grade of 100, plus extra credit for reading it aloud in class. The school principal read the story and called juvenile authorities, who sent sheriff's deputies to remove Christopher from school. Denton County Juvenile Court Judge Darlene Whitten ordered Christopher detained at the Denton County Juvenile Detention Facility for ten days. She later approved an early release after five days, and Denton County District Attorney Bruce Isaacks declined to prosecute the case. He commented, "It looks like to me the child was doing what the teacher told him to do, which was to write a scary story. But this child does appear to be a persistent discipline problem for this school, and the administrators there were legitimately concerned." Brenda Rodriguez & Annette Reynolds, Boy Freed After Story Lands Him in Cell; Ponder Seventh-Grader Wrote of Shooting Teacher, Students When Told to Pen Horror Tale, DALLAS MORNING NEWS, Nov. 3, 1999, at 1A.

The widely-reported Beamon incident received national and international attention. See, e.g., id.; John Kass, Fear of School Violence Getting Best of Common Sense, CHICAGO TRIBUNE, Nov. 4, 1999, at 3; Josh Romonek, Scary Halloween Essay Puts Student, 13, in Jail, CHATTANOOGA TIMES/CHATTANOOGA FREE PRESS, Nov. 4, 1999, at A2; Vin Suprynowicz, So Simple, Even a Child Could Figure it Out, LAS VEGAS REVIEW JOURNAL, Nov. 7, 1999, at 2D; Greg Torode, Boy Jailed 6 Days for Essay on Massacre, SOUTH CHINA MORNING POST, Nov. 4, 1999, at 1.

The Dallas Observer, a self-described "alternative newsweekl[y]" that focuses on reporting "in context and with perspective and sometimes with an individual's voice," published a satirical article lampooning the officials involved in the Beamon incident. The satire, written by Observer staff writer Rose Farley, ran in the Observer's November 11, 1999 print and online editions.¹

Entitled "Stop the madness," the fictitious article described the arrest and detention of "diminutive 6 year-old" Cindy Bradley, who was purportedly jailed for writing a book report about "cannibalism, fanaticism, and disorderly conduct" in Maurice Sendak's classic children's book, Where the Wild Things Are.² Adjacent to the article was a picture of a smiling child holding a stuffed animal and bearing the caption, "Do they make handcuffs this small? Be afraid of this little girl." The article states that Bradley was arrested "without incident during `story time'" at Ponder Elementary School and attributes fabricated words and conduct to Judge Darlene Whitten, District Attorney Bruce Issacks, and others.

Other false quotes and bogus factual assertions were strewn throughout the piece. Judge Whitten was said to have ordered Bradley detained for ten days at the Denton County Juvenile Detention Center while prosecutors contemplated whether to file charges. Whitten purportedly said: "Any implication of violence in a school situation, even if it was just contained in a first grader's book report, is reason enough for panic and overreaction.... It's time for you to grow up, young lady, and it's time for us to stop treating kids like children." Cindy was placed in ankle shackles "after [authorities] reviewed her disciplinary record, which included reprimands for spraying a boy with pineapple juice and sitting on her feet." The article noted that Isaacks had not yet decided whether to prosecute Cindy and quoted him as saying, "We've considered having her certified to stand trial as an adult, but even in Texas there are some limits." Yet another fictional quote was attributed to Dr. Bruce Welch, the Ponder ISD Superintendent: "Frankly, these kids scare the crap out of me." The article claimed that school representatives would soon join several local faith-based organizations, including "the God Fearing Opponents of Freedom (GOOF)," in asking publishers to review content guidelines for children's books.

In describing Sendak's 1964 Caldecott Medal winning book, the article offered the only true quote in the entire piece:

The most controversial aspect of the book is contained in an early exchange between Max and his mother. It reads:

His mother called him `WILD THING!' and Max said `I'LL EAT YOU UP!'

so he was sent to bed without eating anything.

The article asserts that although he had not read the book, then-governor George W. Bush purportedly "was appalled that such material could find its way into the hands of a Texas schoolchild. This book clearly has deviant, violent sexual overtones. Parents must understand that zero tolerance means just that. We won't tolerate anything." The article concludes with Cindy "scoff[ing] at the suggestion that Where the Wild Things Are can corrupt young minds. `Like, I'm sure,' she said. `It's bad enough people think like Salinger and Twain are dangerous, but Sendak? Give me a break, for Christ's sake. Excuse my French.'"

Isaacks and Whitten demanded an apology, requested a retraction, and threatened to sue. In response, the Buzz column in the Observer's next edition (published November 18, 1999, one week after "Stop the madness") explained that the piece was a satire:

Buzz hates being one of those guys— commonly known as "losers" or "dateless" — who laboriously explains jokes. Unfortunately, some people — commonly known as "clueless" or "Judge Darlene Whitten" — did not get, or did not appreciate, the joke behind the news story "Stop the madness," which appeared in last week's Dallas Observer.

. . . .

Here's a clue for our cerebrally challenged readers who thought the story was real: It wasn't. It was a joke. We made it up. Not even Judge Whitten, we hope, would throw a 6-year-old girl in the slammer for writing a book report. Not yet, anyway.

Patrick Williams, Buzz, DALLAS OBSERVER, November 18-24, 1999, at 9.

II Procedural Background

Isaacks and Whitten filed suit, claiming they were libeled by the "Stop the madness" article.³ Isaacks and Whitten named as defendants New Times, Inc. (partial owner of the Dallas Observer), Dallas Observer, L.P. (publisher of the Dallas Observer), and Rose Farley, Julie Lyons, and Patrick Williams (the Observer's staff writer, editor-in-chief, and managing editor, respectively) (collectively, "New Times"). New Times moved for summary judgment, contending that, as a matter of law: (1) an average or reasonable reader would understand the article at issue as a satire or parody rather than actual statements of fact about the plaintiffs; and (2) New Times negated actual malice. On December 30, 2000, the trial court denied New Times's motion on the first point, holding that there was a fact question as to how the reasonable reader would understand the article. On the actual malice issue, the trial court held that "to establish actual malice, the Plaintiffs must prove that the Defendants intended the reasonable reader to interpret as actual, literal statements of fact those portions of the November 11, 1999 article that Defendants contend are parody or satire, taking into account the article as a whole." The court then denied summary judgment on the actual malice issue, finding that the plaintiffs required additional discovery.

New Times filed an interlocutory appeal, pursuant to section 51.014(b), Texas Civil Practice and Remedies Code. That appeal was stayed pending further summary judgment proceedings in the trial court. New Times filed its second motion for summary judgment on February 15, 2001, which was denied by order dated May 29, 2001. New Times filed a second notice of appeal, and the two appeals were consolidated.

In what New Times contends is "the first [decision] in the nation finding a triable fact issue in a libel case brought by elected public officials over a political satire," the court of appeals affirmed, holding that fact issues precluded summary judgment. 91 S.W.3d 844, 864. The court held that "satire or parody that conveys a substantially false and defamatory impression is not protected under the First Amendment as mere opinion or rhetorical hyperbole, but instead is subject to scrutiny as to whether it makes a statement of fact under defamation ...