Dall. Morning News, Inc. v. Tatum

• Decision Date: 11 May 2018
• Docket Number: No. 16–0098,16–0098
• Citation: 554 S.W.3d 614
• Parties: The DALLAS MORNING NEWS, INC. and Steve Blow, Petitioners v. John TATUM and Mary Ann Tatum, Respondents
• Court: Texas Supreme Court

554 S.W.3d 614

The DALLAS MORNING NEWS, INC. and Steve Blow, Petitioners

v.John TATUM and Mary Ann Tatum, Respondents

No. 16–0098

Supreme Court of Texas.

Argued January 10, 2018

OPINION DELIVERED: May 11, 2018

Stephen Chambers, 3445 Potomac Ave., Dallas TX 75205, pro se.

Eugene Volokh, Scott & Cyan Banister First, Amendment Clinic, UCLA, School of Law, 405 Hilgard Ave., Los Angeles CA 90095, Russell Falconer, Gibson, Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas TX 75201-6912, James A. Hemphill, Graves Dougherty Hearon & Moody PC, 401 Congress Avenue, Suite 2200, Austin TX 78701, for Amicus Curiae.

Paul C. Watler, Jackson Walker LLP, 2323 Ross Avenue, Suite 600, Bank of America Plaza, Dallas TX 75201, Wallace B. Jefferson, Jefferson & Townsend LLP, 515 Congress Avenue, Suite 2350, Austin TX 78701-3562, Rachel A. Ekery, Alexander Dubose, Jefferson & Townsend LLP, 515 Congress Avenue, Suite 2350, Austin TX 78701-3562, Shannon Z. Teicher, Jackson Walker L.L.P., 2323 Ross Avenue, Suite 600, Dallas TX 75202-2725, for Petitioner.

Joseph D. Sibley IV, Camara & Sibley LLP, 4400 Post Oak Pkwy., Suite 2700, Houston TX 77027, for Respondent.

Justice Brown delivered the unanimous opinion of the Court with respect to Parts I, II, III.B, and IV, the opinion of the Court with respect to Part III.A, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined, and an opinion with respect to Part III.C, in which Chief Justice Hecht and Justice Johnson joined.

Jeffrey V. Brown, Justice

Words—so innocent and powerless as they are, as standing in a dictionary, how potent for good and evil they become in the hands of one who knows how to combine them.¹

—Nathaniel Hawthorne

In this libel-by-implication case, we must determine whether the defamatory meanings the Tatums allege are capable of arising from the words that Steve Blow combined in a column that The Dallas Morning News published. We conclude that the column is reasonably capable of meaning that the Tatums acted deceptively and that the accusation of deception is reasonably capable of defaming the Tatums. However, as we further conclude that the accusation is an opinion, we reverse the court of appeals' judgment and reinstate the trial court's summary judgment for petitioners Steve Blow and The Dallas Morning News.

IBackground

A. Facts

Paul Tatum was the son of John and Mary Ann Tatum.² At seventeen years old, Paul was a smart, popular, and athletic high-school student. By every indication, he was a talented young man with a bright future. One mid-May evening, Paul, driving alone, crashed his parents' vehicle on his way home from a fast-food run. The vehicle's airbag deployed, and the crash was so severe that investigators later discovered Paul's eyelashes and facial tissue at the scene. The crash's cause has never been conclusively established and no evidence suggests that Paul was intoxicated or otherwise under the influence of any substance when the crash occurred.

Paul found his way home on foot. He began drinking and he called a friend. The phone call indicated to the friend that Paul was behaving erratically. The friend, concerned, traveled to Paul's house to see him in person. The friend found Paul at the Tatums' house in a confused state and holding one of the Tatum family's firearms. The friend left the room where Paul was to report Paul's irrational behavior to the friend's parent, who was waiting in a car outside the Tatums' house. Soon after, the friend heard a gunshot. Paul had killed himself.

In the wake of Paul's death, the Tatums discovered medical literature positing a link between traumatic brain injury and suicide. The Tatums concluded that the car accident caused irrational and suicidal ideations in Paul, which in turn led to his death (whether through an irrational failure to appreciate the risks that accompany handling a firearm or through suicidal desires that led to an intentional, suicidal action). Paul's mother, a mental-health professional, had never noticed any suicidal tendencies in Paul. By her account, and by all others, Paul was a normal, healthy, and mentally stable young man. For the Tatums, these observations underscored the plausibility of their theory that Paul's car crash generated a brain injury that led to his suicide.

In addition to establishing a scholarship fund in his name, the Tatums sought to memorialize Paul by writing an obituary, which they published by purchasing space in The Dallas Morning News. The obituary stated that Paul died "as a result of injuries sustained in an automobile accident." The Tatums chose this wording to reflect their conviction that Paul's suicide resulted from suicidal ideation arising from a brain injury rather than from any undiagnosed mental illness. The Dallas Morning News published the obituary on May 21, 2010. More than 1,000 people attended Paul's funeral.

Steve Blow is a columnist for The Dallas Morning News.³ On June 20, 2010—Father's Day, and about one month after Paul's suicide—the paper published a column by Blow entitled "Shrouding Suicide Leaves its Danger Unaddressed."⁴

The column characterized suicide as the "one form of death still considered worthy of deception." While it did not refer to the Tatums by name, it quoted from Paul's obituary and referred to it as "a paid obituary in this newspaper." Although those who knew Paul already knew the truth, the column revealed what the obituary left out: Paul's death "turned out to have been a suicide." After providing another example of an undisclosed suicide, the column went on to lament that "we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception." The reason we should be more open, according to the column, is that "the secrecy surrounding suicide leaves us greatly underestimating the danger there" and that "averting our eyes from the reality of suicide only puts more lives at risk." The reason we are not open about suicide, the column speculated, is that "we don't talk about the illness that often underlies it—mental illness." Despite these perceived risks, the column also suggested that the lack of openness is understandable. Blow wrote that we should not feel embarrassed by suicide and that "the last thing I want to do is put guilt on the family of suicide victims." The column concluded with an exhortation: "Awareness, frank discussion, timely intervention, treatment—those are the things that save lives. Honesty is the first step."

Blow drafted the column without attempting to contact the Tatums and the paper published it without letting the Tatums know that it was going to print. Those who knew the Tatums immediately recognized that the obituary the column referenced was Paul's.

B. Procedural history

The Tatums filed suit. They alleged libel and libel per se against Blow and the paper. In particular, the Tatums alleged the column defamed them by its "gist." They also brought Deceptive Trade Practices Act claims against the paper. The News filed a motion for traditional and no-evidence summary judgment. The News asserted several traditional grounds. Among them were that the column was not reasonably capable of a defamatory meaning and that the column was an opinion. Without specifying why, the trial court granted the News's motion.⁵

The Tatums appealed. The court of appeals affirmed as to the deceptive-trade practices claims, but it reversed and remanded the Tatums' claims that were based on libel and libel per se. 493 S.W.3d 646, 653 (Tex. App.—Dallas 2015). As is especially relevant here, the court of appeals began by asking whether there was a "genuine fact issue regarding whether the column was capable of defaming" the Tatums. Id. at 659. Nowhere in this analysis did the court of appeals discuss the column's gist. Yet the court concluded that "a person of ordinary intelligence could construe the column to suggest that Paul suffered from mental illness and his parents failed to confront it honestly and timely, perhaps missing a chance to save his life." Id. at 661. It further concluded that "[t]his meaning is defamatory because it tends to injure the Tatums' reputations and to expose them to public hatred, contempt, or ridicule." Id.

In the next section, the court analyzed "the column's gist regarding the Tatums." Id. at 662–63 (emphasis added). A reasonable reader, the court held, could conclude that "the column's gist is that the Tatums, as authors of Paul's obituary, wrote a deceptive obituary to keep Paul's suicide a secret and to protect themselves from being seen as having missed the chance to intervene and prevent the suicide." Id. (emphasis added). But see id. at 672 ("We assume without deciding that the defamatory publication in this case generally involved a matter of public concern (preventing suicides) ....").

The court's conclusion regarding the column's gist drove the rest of its analysis. It held the column was not an opinion because "the column's gist that the Tatums were deceptive when they wrote Paul's obituary is sufficiently verifiable to be actionable in defamation." Id. at 668. The News's defenses based on fair comment, official proceedings, truth, substantial truth, actual malice, and negligence fared no better. See id. at 666–67. Thus, the court of appeals rejected every possible ground on which the trial court might have based its grant of summary judgment.

The News petitioned this Court for review. It argues that the court of appeals was wrong on four fronts: the column is not reasonably capable of defamatory meaning; it is non-actionable opinion; it is substantially true; and the court of appeals did not properly analyze actual malice.

IILaw

A. Defamation

Defamation is a tort, the threshold requirement for which is the publication of a false statement of fact to a third party. Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 579 (Tex. 2017). The fact must be defamatory concerning the plaintiff, and the publisher must make the statement with the...