KBMT Operating Co. v. Toledo

• Decision Date: 17 June 2016
• Docket Number: NO. 14–0456,14–0456
• Citation: 492 S.W.3d 710
• Parties: KBMT Operating Company, LLC, KBMT License Company, LLC, Brian Burns, Jackie Simien and Tracy Kennick, Petitioners, v. Minda Lao Toledo, Respondent
• Court: Texas Supreme Court

492 S.W.3d 710

KBMT Operating Company, LLC, KBMT License Company, LLC, Brian Burns, Jackie Simien and Tracy Kennick, Petitioners,

v.Minda Lao Toledo, Respondent

NO. 14–0456

Supreme Court of Texas.

Argued November 13, 2015

Opinion delivered: June 17, 2016

Michael A. McCabe, Jessica L. Spaniol, Olga A. Bograd, Munck Wilson Mandala, LLP, Dallas TX, for Petitioners.

Benjamin House, Joe House, Carla Marie Perron, House Perron & House PLLC, Houston TX, Brian Nolan Mazzola, The Mazzola Law Firm, PLLC, Beaumont TX, Mark Wham, Law Office of Mark Wham, The Woodlands TX, for Respondents.

Laura Lee Prather, Haynes and Boone, LLP, Austin TX, for Amicus Curiae parties.

CHIEF JUSTICE HECHT delivered the opinion of the Court, in which JUSTICE GREEN, JUSTICE GUZMAN

, JUSTICE LEHRMANN, JUSTICE DEVINE, and JUSTICE BROWN joined.

The First Amendment requires that a private individual who sues a media defendant for defamation over statements of public concern bear the burden of proving that the statements were false—that is, that the gist of the statements was not substantially true.¹ We hold that the truth of a media report of official proceedings of public concern must be measured against the proceedings themselves, not against information outside the proceedings. The media may report on the proceedings themselves without independently investigating the matters involved. Because we conclude that the plaintiff in this case did not meet her burden under the Texas Citizens Participation Act² of establishing by clear and specific evidence a prima facie case that the media defendants' broadcast was false, an essential element of her defamation claim, we hold that the defendants were entitled to dismissal.³ Accordingly, we reverse the judgment of the court of appeals⁴ and remand the case to the trial court for further proceedings.

The Texas Medical Board (“the Board”) disciplined Minda Lao Toledo, a Port Arthur physician, for “unprofessional conduct”.

The Board issued a two-sentence press release stating that Toledo “behaved unprofessionally when she engaged in sexual contact with a patient and became financially or personally involved with a patient in an inappropriate manner.” The press release further stated that Toledo had entered into an agreed order requiring her to complete ethics training, pass a professionalism course, and pay $3,000 as an administrative penalty.⁵

Toledo's profile on the Board website included the text of the press release, stated that she was born in the Philippines and had been practicing in Texas for five years, and gave a Port Arthur address. The profile contained a link to the order to which Toledo, represented by legal counsel, had agreed. The order stated that Toledo was 51 years old and “primarily engaged in the practice of pediatric medicine.” The order further stated that she “used her medical license to obtain testosterone and human growth hormone for JC while she was in an intimate relationship with him and that she “accepted gifts from JC during the time she was treating him.” The order concluded that the Board was authorized to discipline Toledo for “unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public”, “engaging in sexual contact with a patient”, “becoming financially or personally involved with a patient in an inappropriate manner”, “prescribing or administering a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed”, and the “commission of an act that violates ... state or federal law ... connected with the physician's practice of medicine”.

KBMT, an ABC-affiliated television station in Beaumont, part of the same metropolitan area as Port Arthur, learned of the press release and found it, Toledo's profile, and the agreed order on the Board's website. KBMT then aired this 30–second report of the Board's action:

A Port Arthur pediatrician has been punished by the Texas Medical Board after the Board found she engaged in sexual contact with a patient and became financially involved with a patient in an inappropriate manner. Dr. Minda Lao Toledo will have to complete sixteen hours of continuing medical education, including eight hours of ethics and eight hours of risk management, and pay an administrative penalty of three thousand dollars. Toledo is a native of the Philippines and has been practicing medicine in Texas for five years.

KBMT ran the report four times in 24 hours, but the last time the news anchor added that Toledo's patient was “an adult”.

Toledo sued KBMT and three of its employees (collectively, “KBMT”) for defamation, alleging that by stating she was a pediatrician, and by omitting that she was treating the patient with whom she had had sexual contact with testosterone, the report falsely implied that the patient was a child when, in fact, he was a 60–year–old man with whom she had been in a long-term dating relationship. The patient's age did not appear in any of the information on the Board's website. KBMT moved for dismissal under the Texas Citizens Participation Act (“the Act”),⁶ which allows for the early dismissal of a legal action implicating the defendant's free-speech rights unless the plaintiff can establish each element of her claim with clear and specific evidence.⁷ The trial court denied KBMT's motion and the court of appeals affirmed, concluding that Toledo had established a prima facie case of defamation.⁸ The court concluded that Toledo had shown the requisite falsity because the gist of the broadcast was that she had had sexual contact with a child.⁹

We granted KBMT's petition for review.¹⁰

The Act provides that a suit based on a defendant's exercise of his free speech rights must be dismissed¹¹ unless the plaintiff “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.”¹² Toledo's defamation suit against KBMT is based on its exercise of its right of free speech, as Toledo acknowledges. Thus, KBMT was entitled to dismissal unless Toledo established a prima facie case for each element of a defamation cause of action. KBMT argues that one element of Toledo's action is that its report was false, and that Toledo has not made a prima facie case of falsity.

At common law, truth was a defense in a suit for defamation; falsity was not an element of the action.¹³ But as we recently observed, “[t]he United States Supreme Court and this Court long ago shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory statements were false when the statements were made by a media defendant over a public concern.”¹⁴ We referred specifically to the United States Supreme Court's 1986 decision in Philadelphia Newspapers, Inc. v. Hepps¹⁵

and our 1990 decision in McIlvain v. Jacobs.¹⁶ A statement need not be perfectly true; as long as it is substantially true, it is not false.¹⁷ The test for whether a report like KBMT's is substantially true is whether the “broadcast taken as a whole is more damaging to the plaintiff's reputation than a truthful broadcast would have been”.¹⁸ This requires determining the import of the broadcast as a whole–its gist to the ordinary listener–and comparing it to a truthful report.¹⁹

But a truthful report of what? An accurate report of official proceedings that do not themselves present a true picture of the actual facts will necessarily share the same defect. The media have a common-law privilege to report on judicial proceedings without regard for whether the information from such proceedings is actually true.²⁰ In 1901, the Legislature codified this privilege and extended it to “a fair, true, and impartial account” of not only judicial proceedings but all official proceedings.²¹ Requiring the media to independently investigate the facts before reporting on official proceedings would ill serve the public's interest in government activities. When the privilege applies, the gist of an allegedly defamatory broadcast must be compared to a truthful report of the official proceedings, not to the actual facts.²²

Although the statute does not allocate the burden of proof for establishing the privilege, in 1970 we held in Denton Publishing Co. v. Boyd

that the privilege is an affirmative defense on which the defendant has the burden of proof.²³ Since then, as we have explained, the United States Supreme Court in Hepps and this Court in McIlvain have held that the First Amendment requires that a private figure suing a media defendant over statements on matters of public concern prove the statements are false. This rule, as Hepps explained, is “[t]o ensure that true speech on matters of public concern is not deterred”.²⁴ Those decisions have partially abrogated our holding in Denton Publishing. While the defendant must still prove the applicability of the privilege—that the defendant is part of the media and that the statements complained of were an account of official proceedings of public concern—the plaintiff must prove the statements were false.

Thus, we hold that a private individual who sues a media defendant for defamation over a report on official proceedings of public concern has the burden of proving that the gist of the report was not substantially true—that is, that the report was not a fair, true, and impartial account of the proceedings. That burden is not met with proof that the report was not a substantially true account of the actual facts outside the proceedings.²⁵

Toledo argues that the gist of KBMT's broadcast to the ordinary listener was that she had sexual contact with a child because it identified her as a pediatrician at the outset and stated that she had been punished for having sexual contact with a patient without stating the patient's age. We disagree. Any ordinary listener would know that improper sexual contact with a child by an adult old enough to be a physician would be a crime prosecuted by the district...