Warner Bros. Entm't, Inc. v. Jones
| Decision Date | 08 May 2020 |
| Docket Number | No. 18-0068,18-0068 |
| Citation | 611 S.W.3d 1 |
| Parties | WARNER BROS. ENTERTAINMENT, INC.; Warner Bros. Technical Operations, Inc. d/b/a Warner Bros. Advanced Digital Services; TMZ Productions, Inc. ; EHM Production, Inc. d/b/a TMZ; TMZ.com ; and Elizabeth McKernan, Petitioners, v. Robert JONES, Respondent |
| Court | Texas Supreme Court |
Charles L. Babcock, Houston, Joshua A. Romero, Peter Carl Hansen, Austin, for Petitioners.
Ben C. Broocks, Alan B. Daughtry, Houston, for Respondent.
Devin L. Kerns, Thomas S. Leatherbury, Marc A. Fuller, Dallas, for Amici Curiae Gannett Co, Inc., the New York Times Company, the Dallas Morning News, Inc., the Austin American-Statesman, Pro Publica, Inc., the Freedom of Information Foundation of Texas, Dow Jones & Company, Inc., Electronic Frontier Foundation.
Harry Herzog, for Amicus Curiae Stephanie Zoanni.
Marc A. Fuller, Thomas S. Leatherbury, Devin L. Kerns, Dallas, Wallace B. Jefferson, Austin, Nicholas B. Bacarisse, for Amici Curiae Graham Media Group, the Texas Press Association, the Reporters Committee for Freedom of the Press, the Texas Association of Broadcasters.
Long before the internet revolutionized the way the public experiences mass media, pundits remarked—in various formulations—that a lie can travel halfway around the world before the truth can get its boots on.1 And centuries before that, Jonathan Swift observed that "[f]alsehood flies, and the truth comes limping after it, so that when men come to be undeceived, it is too late."2 Recognizing that falsehoods spread quickly and are hard to dispel,3 the Defamation Mitigation Act (DMA) induces publishers and claimants to take prompt action to mitigate reputational injuries that may ensue from defamatory publications.4
This defamation lawsuit involves allegations that an internet tabloid rushed to publish a salacious article about an alleged murder-for-hire plot featuring a former Dallas Cowboys football player as a violent "gangster" who threatened to make "a man named Theodore" "disappear" for refusing to kill a sports agent. According to the plaintiff, the publisher intentionally ignored red flags about the informant's credibility, failed to undertake basic due-diligence efforts, and maligned him in a way the law recognizes as per se harmful.5 The question we address today is not the verity of these allegations, which is not before us at this juncture of the litigation, but whether the plaintiff's lawsuit must be dismissed for asserted noncompliance with the statutory method for mitigating damages. Because the plaintiff complied with the statute, we hold that the trial court properly denied the publisher's motion to dismiss. We therefore affirm the court of appeals' judgment.
Robert Jones is a former Dallas Cowboys football star who played ten seasons in the National Football League (NFL). His illustrious career is marked by several notable accomplishments: first-round draft pick in 1992, NFL Rookie of the Year in 1992, NFL Pro Bowl player, and three-time Super Bowl champion. After retiring in 2002, Jones took up residence in Austin, where he runs a business.
Theodore Watson, Jones's cousin, has led a less storied life with a criminal history spanning decades. Shortly before the events giving rise to this lawsuit, Watson was incarcerated in Ohio after pleading guilty to attempted aggravated arson and insurance fraud. Soon after he was discharged from parole in 2014, Watson began harassing Jones in an attempt to extort money from him.
Jones's lawyer, Nicolas Bressi, sent Watson a cease-and-desist letter on June 10, 2014. Two days later, Watson responded to Bressi's letter by calling his office and leaving a threatening voicemail. The same day, Watson called the "hot tip" line for internet tabloid TMZ.com to report that Jones had threatened to harm him for refusing to murder Jones's former agent. TMZ reporter Elizabeth "Liz" McKernan replied to Watson by email, and they spoke by telephone twice that day.
Later that afternoon, Bressi sent Watson an email warning him to cease further communications:
Subject: Robert Jones/Watson
Mr. Watson
I received a message that you called my office today. I have no
intention of speaking with you as there's nothing to discuss and I
have no reason or need to speak with you. All that needs to be said
was set forth in my letter. Please cease communicating with my
office
Nicholas S. Bressi
[Contact Information]
Watson promptly forwarded the email to McKernan without the letter Bressi referenced. Minutes later, Watson sent McKernan another email stating "the[y] are trying to shut me up or even [k]ill me."
The following day, Watson filed a complaint against Jones with the Cleveland Police Department. Whether he did so of his own accord or at McKernan's request is disputed. The "Offense/Incident Report" recounts Watson's claim that a month earlier—on May 13, 2014—Jones claimed to be a "gangster" who would make Watson "disappear" for refusing to murder Jones's agent. The report lists the alleged violation as "Aggravated Menacing" and states Watson was advised to consult with a prosecutor. Watson informed McKernan that he had filed the report and stated that "another reason I'm in fear" is because "the NFL [is] nothing but mafia[.]"
In the days that followed, Watson and McKernan communicated with each other several times. At McKernan's request, Watson sent her a copy of the Offense/Incident Report and, in a series of emails to McKernan on June 16 and 17, expressed his hope that the story would gain maximum exposure:
McKernan responded: Watson replied: McKernan assured Watson the story would go live at "our busiest time for the website, and then it will also go on the show[.]"
The day before publishing the story McKernan made a two-minute call to the records department for the Cleveland Police Department to verify Watson had filed the complaint. A few hours before going live with the murder-for-hire story, McKernan also reached out to Jones by direct message [DM] to his Twitter account, and he responded within minutes:
McKernan claims she left Bressi a voicemail message that evening; Bressi said he heard from Jones, but not McKernan. Either way, McKernan did not await Bressi's response before the following story was published on TMZ.com at 2:45 a.m. CDT on June 18, 2014:
Within hours after the story hit the internet, Bressi called McKernan and provided readily verifiable information refuting the allegations and discrediting Watson. The reporter offered to send Bressi the Offense/Incident Report Watson had filed with the Cleveland Police Department, and she did so moments later:
Hi Nick
Thanks for giving me a call
Here's the police report[.]
Let me know when you find out which authority will handle the false
report
I've called Cleveland PD asking what it is they are even doing about the
report. All I know, (from records) is that it's open, and was only recently
filed
Here's my info:
Liz McKernan
TMZ News Desk
[Contact Information]
Thanks!
Bressi simultaneously sent McKernan a preview copy of a press release addressing the murder-for-hire plot that TMZ had reported as an "exclusive":
Subject: Press Release/Robert Jones
Attached please find Mr. Jones' press release for this matter.
The officer investigating the complaint is unavailable until later this
week so I don't have anything further to report on that matter at this time.
Thank you,
Nicholas S. Bressi
[Contact Information]
Attached to Bressi's email was the following:
PRESS RELEASE
RE: ROBERT JONES AND FALSE POLICE REPORT FILED BY
THEODORE WATSON, JR.
From: Nicholas S. Bressi, counsel for Robert Jones
Robert Jones deeply regrets that a distant relative has filed a false
police report against him. Robert Jones absolutely denies all accusations
contained within the false report filed by Mr. Watson and Mr. Jones is in the
process of filing his own complaints with law enforcement authorities to
address the situation. Robert Jones and his agent have a wonderful
relationship and there is not one word of truth contained in the report filed
by Mr. Watson.
Mr. Watson has recently been attempting to extort money from Mr.
Jones and has been harassing Mr. Jones and his family for the past several
months. Mr. Watson received a cease and desist letter from Mr. Jones's
lawyer last week and after receiving that letter apparently Mr. Watson
decided to escalate his extortion attempts by filing a false report against Mr.
Jones then circulating the false report to the media.
Robert Jones is
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