New Times, Inc. v. Isaacks

• Decision Date: 21 November 2002
• Docket Number: No. 02-01-216-CV.,No. 02-01-023-CV.,02-01-023-CV.,02-01-216-CV.
• Citation: 91 S.W.3d 844
• Parties: NEW TIMES, INC. d/b/a Dallas Observer; Dallas Observer, L.P.; Rose Farley, Julie Lyons, and Patrick Williams, Appellants. v. Bruce ISAACKS and Darlene A. Whitten, Appellees.
• Court: Texas Court of Appeals

91 S.W.3d 844

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

No. 02-01-023-CV.

No. 02-01-216-CV.

Court of Appeals of Texas, Fort Worth.

November 21, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George & Donaldson, L.L.P., James A. Hemphill, Austin, Law Office of Steven P. Suskin, Steven P. Suskin, Phoenix, AZ, for Appellants.

Griffin, Whitten, Jones & Reib, Michael J. Whitten, Denton, for Appellee.

PANEL B: CAYCE, C.J.; GARDNER and WALKER, JJ.

OPINION ON REHEARING

ANNE GARDNER, Justice.

Appellants, New Times, Inc., d/b/a Dallas Observer, Dallas Observer, L.P., Rose Farley, Julie Lyons, and Patrick Williams have filed a motion for rehearing regarding our original decision. We withdraw our opinion and judgment issued May 2, 2002, and substitute the following in their place. We overrule the motion for rehearing.

I. INTRODUCTION

In this interlocutory appeal, we must decide two issues: whether an article defended as parody or satire regarding a public official or figure is mere opinion or rhetorical hyperbole and is, therefore, protected First Amendment speech; and what is the proper application of the "actual malice" standard to asserted satire or parody in a defamation action by public officials. Appellees Bruce Isaacks, Criminal District Attorney for Denton County, and Judge Darlene A. Whitten, Judge of the Denton County Court at Law Number One, sued the Dallas Observer for defamation arising from an article published by that weekly publication, attributing to them the detention of a fictional first-grade student on possible delinquency charges of making a terroristic threat in a book report. Appellants New Times, Inc., d/b/a Dallas Observer, Dallas Observer, L.P., Rose Farley, Julie Lyons, and Patrick Williams (collectively "Dallas Observer") complain of the trial court's denial of their traditional and no-evidence motions for summary judgment, contending that the article was published as a satire and without actual malice as required for recovery of defamation by a public official.¹ We hold that a genuine issue of material fact exists as to whether a reasonable person could construe the asserted parody or satire as a statement of actual fact. We further hold that the test for actual malice adopted by the Supreme Court in New York Times, Co. v. Sullivan² applies to claimed satire or parody, and that the Dallas Observer has failed to establish lack of actual malice as a matter of law. We affirm the trial court's order denying the Dallas Observer's motions for summary judgment.

II. FACTUAL BACKGROUND

On October 28, 1999, thirteen-year-old Christopher Beamon, a seventh-grader in Ponder, Texas, was ordered detained by Judge Whitten, who was then judge of the Denton County's juvenile court, after he wrote a graphic Halloween horror story depicting the shooting death of a teacher and two fellow students. He was released after being held for five days at the juvenile facility while the Denton County District Attorney's office considered delinquency charges. The case received considerable publicity, not only in the North Texas area, but also nationally.³

As described on its website, the Dallas Observer is an alternative newsweekly, "known for its hard-edged investigative stories about government, politics and business, as well as its pointed, provocative coverage of sports, music and the arts." Publication Profiles, DALLAS OBSERVER, http://www.newtimes.com/profiles_dal.html> (last visited Nov. 20, 2002). On November 11, 1999, the Dallas Observer published an article in both its hard copy and on-line edition of its weekly newspaper in the section labeled "News," reporting that "[i]n the second homework-related arrest in as many weeks, a Denton County juvenile court judge [Whitten] jailed a Ponder student for suspicion of making a terroristic threat...."

The November 11th article, authored by staff-writer Rose Farley, was entitled "Stop the Madness." The article reported that Cindy Bradley, "a diminutive 6-year old," was arrested during "story-time" in her class at Ponder Elementary School for a book report she had written about an award-winning children's classic, Where the Wild Things Are, by Maurice Sendak. According to the article, Judge Whitten ordered Cindy detained for ten days at the Denton County Juvenile Detention Center while prosecutors decided whether to file charges.

The Dallas Observer article described Cindy as appearing subdued when she stood before Judge Whitten "dressed in blue jeans, a Pokemon T-shirt, handcuffs and ankle shackles." Judge Whitten was quoted as chastising Cindy from the bench:

"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," Whitten said from the bench. "It's time for you to grow up, young lady, and it's time for us to stop treating kids like children."

The article further related that Denton County District Attorney Bruce Isaacks stated that he had not decided whether to prosecute Cindy. Isaacks was quoted as stating, "We've considered having her certified to stand trial as an adult, but even in Texas there are some limits." The article also reported sources as saying that courthouse security officers ordered shackles for Cindy after they reviewed her school record, which included "reprimands for spraying a boy with pineapple juice and sitting on her feet." A bailiff was also quoted as stating in the article, "It's not easy finding cuffs that small. Fortunately, we ordered a special set last week after that other kid was busted." The article then went on to explain the incident involving Christopher Beamon.

It is undisputed that, aside from references to Christopher Beamon's detention, the "Stop the Madness" article was completely made up. It was conceived and authored by Farley and ultimately published after input, editing, and approval by Williams, the managing editor for the paper, and Lyons, its editor in chief. Included with the article was a photograph of a six-year-old girl, identified as Cindy Bradley, who was actually the daughter of a Dallas Observer staff member.

After publication of the Madness article, complaints about Isaacks and Whitten were received and posted on the paper's website, accusing those officials of incompetency and calling for their dismissal from office based on their conduct as described in the article. Readers and other news media contacted Isaacks and Whitten directly, expressing anger and criticism of the described conduct in the article as being "sickening" and "stupid," insisting that Judge Whitten be removed from the bench, and urging that both should be "ashamed" of their conduct.

Isaacks and Whitten requested a retraction by the Dallas Observer. The Dallas Observer responded, explaining in its "Buzz" column of the next weekly edition that the Madness article was a satire, but describing readers who believed the report as "cerebrally challenged" and "clueless."

III. PROCEDURAL BACKGROUND

Isaacks and Whitten filed suit for defamation, alleging that the article could be understood by the reasonable reader as making false statements of fact about them and that the statements were made with actual malice. They alleged that the article was libel per se because it accused them of conduct amounting to official oppression, false arrest, false imprisonment, civil rights violations, child abuse, and assault. The Dallas Observer moved twice for summary judgment.

In its first motion for summary judgment, the Dallas Observer contended that, as a matter of law, the article was fictional satire or parody and that the Dallas Observer had not acted with the actual malice necessary for public official defamation. The Dallas Observer also sought a no-evidence summary judgment based on no evidence of actual malice. The trial court ruled that a genuine issue of material fact existed as to whether a reasonable reader would understand the article at issue was satire or parody. The court also denied the Dallas Observer's traditional motion for summary judgment based on lack of actual malice, ruling that Whitten and Isaacks were entitled to additional discovery on that element. For the same reason, the trial court also denied the Dallas Observer's no-evidence motion for summary judgment as to actual malice. The Dallas Observer later filed a second traditional and no-evidence motion for summary judgment confined to the actual malice issue, which the trial court also denied.

IV. ISSUES ON APPEAL

In its first issue, the Dallas Observer generally complains that the trial court erred by denying both its traditional and no-evidence motions for summary judgment. In its second issue, the Dallas Observer contends that it was entitled to summary judgment because, as a matter of law, a reasonable reader would understand that the article, in context, was a satire or parody and did not purport to make statements of actual fact about Appellees. Thirdly, the Dallas Observer contends that it was entitled to a no-evidence summary judgment because Appellees could produce no evidence raising a genuine issue of material fact that the Dallas Observer acted with actual malice, an essential element in a public official defamation case. Finally, the Dallas Observer argues that it was entitled to traditional summary judgment because it conclusively disproved actual malice.

V. STANDARDS OF REVIEW

A. Standards for Summary Judgment

The summary judgment standards of review in public official or public figure cases are the same as in other cases. Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 423 (Tex.2000) (declining to adopt the "clear and convincing" standard at the summary judgment stage of a public figure case). Whether an order grants or denies a motion for summary judgment, we apply the...