Freedom Newspapers of Texas v. Cantu

• Decision Date: 11 September 2003
• Docket Number: No. 13-02-544-CV.,13-02-544-CV.
• Citation: 126 S.W.3d 185
• Parties: FREEDOM NEWSPAPERS OF TEXAS, et al., Appellant, v. Conrado M. CANTU, Appellee.
• Court: Texas Court of Appeals

126 S.W.3d 185

FREEDOM NEWSPAPERS OF TEXAS, et al., Appellant, v. Conrado M. CANTU, Appellee.

No. 13-02-544-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

September 11, 2003.

Opinion Granting Rehearing December 18, 2003.

Brian G. Janis, Sanchez, Whittington & Janis, Brownsville, John A. Bussian, III, Law Firm of John A. Bussian, III, Raleigh, for Appellants.

Ernesto Gamez, Jr., Victor Quintanilla, Law Offices of Ernesto Gamez, Jr., P.C., Brownsville, Larry Zinn, San Antonio, for Appellee.

Before Chief Justice ROGELIO VALDEZ and Justices HINOJOSA and RODRIGUEZ.

OPINION

Opinion by Chief Justice ROGELIO VALDEZ.

Conrado M. Cantu, currently the Sheriff of Cameron County, brought suit against Freedom Newspapers of Texas d/b/a/ the Brownsville Herald, George Cox, the editor of the Brownsville Herald, and Brad Pierce, a reporter for the Brownsville Herald, based on the paper's coverage of comments made by Cantu during a political debate with his opponent, Terry Vinson, in the race for Sheriff. These defendants moved for summary judgment, the trial court denied their motions, and this appeal ensued.¹ We affirm.

Jurisdiction

The civil practice and remedies code permits appeal of an interlocutory order denying a motion for summary judgment based on a claim against, or a defense asserted by, a member of the media arising under the First Amendment of the United States Constitution or article 1, section 8 of the Texas Constitution. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(6) (Vernon Supp.2003).

Background

The dispute in the instant case centers on the defendants' coverage of a political debate between Cantu and his opponent, Terry Vinson, in the electoral race for Sheriff of Cameron County. The debate was covered by reporter Brad Pierce, who attended the debate but did not record the proceedings. One of Cantu's supporters recorded the debate, and a transcript of the recording shows that the candidates made the following comments, in pertinent part:

Cantu: [I]t is not easy to go out there and stand in a neighborhood and tell everybody what are your needs, what are your problems. I can do that because I am bi-cultural, I know the people, I know everybody that lives in my precinct and that is why I have been honored by everybody because of my dedication.

* * *

Cantu: Mr. Vinson is a nice man, but he is an instructor, he is not a sheriff. You have to have the right character to be a sheriff and you have to delegate authority and it does not stop there. You have to be bi-cultural to understand what is going on in our neighborhoods, where there is a lot of burglaries, how are you going to relate to these people—in Spanish—and make them understand that they need to stop or we are going to put a stop to it in their neighborhoods. How is it going to happen. You have to be able to understand, you have to have grown up here to understand that.

* * *

Vinson: Well, when he brings up the bi-cultural, well he is forgetting we have orientals, we have Filipinos, we have Chinese, we got Japanese, we got Chinese, we've got ... Israelis, we have... what is he going to talk to them, you are going to find somebody to do the communicating for you.... What can we do as a team itself, that's what we need to do. Bi-cultural is a barrier that is there because people put it there, it shouldn't exist. I don't believe in it. I believe everybody is the same, everybody is treated the same and everybody should be shown the respect * * *

Vinson: I am not going to tolerate the compadreism, I am sorry, I am not from this culture, I apologize to that [sic], but I can guarantee you one thing, I will treat everybody the same....

The next day, October 5, 2000, the newspaper covered the debate with an article appearing on the front page of the paper, entitled "Cantu: No Anglo can be sheriff of Cameron County," and subtitled "Election 2000: Dem candidate stresses Hispanic heritage at debate." The text of the article began:

No Anglo could ever be sheriff of Cameron County, Conrado Cantu said Wednesday during a debate with his opponent Terry Vinson in the race for the county's top law enforcement office.

"How are you going to relate to these people" Cantu asked Vinson, stressing that he's up for the job because he's Hispanic and knows the residents.

Cantu repeatedly said he's the better candidate because he's bi-cultural.

"Bi-cultural is a barrier that's there because people put it there," Vinson replied. "We have a large culture," but "I believe everyone is the same."

The article continued, discussing other issues raised during the debate, including investigations of criminal conduct regarding Cantu and the candidates' relative qualifications for the job. The day the article was published, Cox questioned Pierce "to ask him about the story and whether we felt we've been fair about the story and whether we needed to do any— any subsequent reporting."

Later that same day, Cantu approached the editor of the paper, George Cox, and complained that the paper's coverage was incorrect. He told Cox that he never used the term "Anglo," and he found it offensive. He offered Cox a copy of an audiotape made of the debate. Cox refused to listen to the tape of the debate, because he "believed what he was telling me," and referred Cantu to Pierce. Cantu then spoke with Pierce, the reporter who covered the debate, and reiterated his comments.

Cox subsequently again discussed the issue with Pierce, and Pierce told him that he believed that the article was a fair representation of comments made during the debate. Cox felt that it "was appropriate to do a follow-up story to further clarify comments," and "give Mr. Cantu an opportunity to have his say and his response."

The following day, on October 6, 2000, the paper published a follow-up article on the front page. This article was entitled "Sheriff candidate says racial issue wasn't the point," and is subtitled "Election: Cantu says Valley needs bi-cultural candidates."

Constable Conrado Cantu said he wants to set the record straight on comments that he made this week about his opponent in the Cameron County sheriff's race not being the best man for the job because he's not Hispanic.

Democrat Cantu said he never intended to suggest that race is an issue in his campaign, but that he has an advantage over Republican Terry Vinson because he is from the Rio Grande Valley, speaks Spanish and understands the needs of the majority of the public.

"The people of the Rio Grande Valley live in a bi-cultural area," Cantu said, explaining that because he is "bi-cultural," he is the best candidate to represent citizens as Cameron County's top law enforcement officer.

The paper continued the article on page twelve of the paper:

"I did not say that an Anglo could not be sheriff," he said, but rather that, by being bi-cultural, he has a better opportunity to resolve conflicts and protect neighborhoods.

However, Tracy Larimore, who said he was leaning toward voting for Cantu until Wednesday night, said, "Does that mean that he can understand the Anglo race, and if that's so, how come Vinson can't understand the Hispanic race?"

"I clearly heard that the only person who could be sheriff is an Hispanic," Larimore said. "Frankly, I think he was caught off guard. I think he meant what he said and now he's taking flack over it. He would have been far better not saying a word."

Following his election, Cantu brought suit against Freedom Newspapers of Texas d/b/a/ The Brownsville Herald, George Cox, individually and as editor of the Brownsville Herald, and Brad Pierce, alleging causes of action including libel, slander, defamation of character, damage to reputation, intentional infliction of emotional distress, and publications made with actual malice.²

The defendants moved for summary judgment on grounds that (1) the challenged article is substantially accurate and true; (2) the appellee, as a law enforcement officer and candidate for public office at the time the article was published, was a public official or public figure who must prove actual malice, and actual malice cannot be established; (3) the challenged article is protected by the common law privilege for substantially accurate news reports of political campaign activities; (4) the appellee did not sustain any damages to his reputation, and therefore, is barred from recovering any damages; and (5) absent proof of actionable defamation, appellee's other claims, which are derivative of his defamation claim, are moot and must also fail. The trial court denied their motions, and this appeal ensued.

Appellants raise six issues on appeal. Appellants argue that the trial court erred in denying the motions for summary judgment claims because (1) the appellee failed to produce any evidence that the publication was not substantially true; (2) the appellee failed to produce any evidence that the defendants acted with actual malice; (3) the appellee failed to counter the uncontroverted evidence that defendants had no knowledge that the publication in question contained any false statements and the defendants did not entertain any serious doubts as to the accuracy of the publication; (4) the media is afforded a qualified privilege for the coverage of political campaigns; (5) the appellee failed to produce any competent evidence of damages; and (6) each of appellee's non-defamation claims is derivative of the defamation claims, and summary judgment should have been granted as to the defamation claims.

Standard of Review

In a traditional summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the...