Court affirms dismissal of First Amendment case; splits over remand

© 2017 The Texas Lawbook.

By Allen Pusey

(Jan. 30) – The Supreme Court of Texas on Friday affirmed an appeals court decision setting aside a jury verdict against a Fort Bend County newspaper in a 13-year old libel suit.

In a 5-4 decision, the court ruled in Brady v. Klentzman that the trial judge erred by failing to outline First Amendment standards for libel in his instructions to the jury. While all nine justices agreed that the error had occurred, the court split on the question of remand.

Because the jury had awarded damages in the case, the majority felt it needed to be returned for retrial. Four justices, led in dissent by Chief Justice Nathan Hecht, said the court should have ended the case then and there. Evidence of damages was not clear enough, Hecht wrote, to justify a retrial — especially in light of First Amendment standards.

The case involves an article published in 2003 by the West Fort Bend Star, a newspaper in Fort Bend County. The article alleged that a high-level official in the Fort Bend sheriff’s department interfered in several incidents involving law enforcement officers and his son. The son, Wade Brady, sued the newspaper and the reporter, alleging that her descriptions of those incidents in the article were both false and defamatory. Brady alleged that the reporter, who had once worked for the sheriff’s department, had bared the incidents to embarrass his father.

After a trial in 2011, the jury awarded Brady $50,000 in actual damages and exemplary damages of $30,000 against the reporter and $1 million against the newspaper, the latter lowered to $200,000 by the judge. The verdict was reversed and remanded in December 2014 by a unanimous three-judge panel in the First District Court of Appeals.

John Edwards, a partner in the Houston office of Jackson Walker, who is representing the newspaper pro bono, pointed out that all nine justices had agreed on the error, but split on the remand issue, making likely a request for rehearing.

“If we can convince just one justice to change position, the case is over,” he said.

Jane Langdell Robinson, Of Counsel at Houston-based Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, said her client, Wade Brady, hasn’t decided whether to retry the case. Still, the court’s acknowledgment of the jury award, she said, reflected the public discomfort with the paper’s discussion of Brady, who’d been a minor at the time of at least one of the incidents described.

“It shows that juries are willing to hold journalists accountable, even given the sanctity of the First Amendment,” Robinson said. “There is a high standard for damages involving the media, and there should be. But in this case a reporter was attacking a public official through his kid. And I don’t think that’s the kind of thing that the First Amendment means to protect.”

The issue for the High Court was whether the jury had been able to consider that higher standard when they made their judgment. In matters of public concern, even untrue statements that are defamatory — or outright libelous — do not necessarily qualify a plaintiff for exemplary damages. In a First Amendment case, a plaintiff must show actual malice, defined by the courts as “knowledge of falsity or reckless disregard for the truth.”

SCOTX agreed unanimously that the story, which alleged interference by Brady’s father, involved a matter of public concern, and that the trial judge had not made the First Amendment implications clear in his instructions to the jury.

But Hecht and the other dissenting justices said they were unimpressed with the actual evidence of damages, even at a lesser standard than the First Amendment demands; by remanding the case, he wrote, the court avoided its responsibility to protect press freedoms.

“If this were a slip-and-fall case, there would be no evidence of compensable mental anguish.
But it is not,” Hecht wrote. “This case necessarily involves the media defendants’ exercise of First Amendment rights. Juries in defamation cases are not charged with protecting those rights in awarding damages. That responsibility belongs to the courts reviewing the evidence to support jury findings. The Court notes, but does not take seriously, that responsibility in this case.”

The case: NO. 15-0056 WADE BRADY, PETITIONER, v. LEAANNE KLENTZMAN AND CARTER PUBLICATIONS, INC. D/B/A THE WEST FORT BEND STAR, INC., RESPONDENTS

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