Rolling through a gamut of legal issues from SLAPP to SNAP, a lawsuit brought against D Magazine by a woman it described as “The Park Cities Welfare Queen” was reaffirmed last week by the Dallas-based Fifth Court of Appeals.
In a 30-page opinion, the court affirmed District Judge Dale Tillery’s denial of a summary judgment sought by D Magazine in December 2019.
The article at issue, published in 2013 by “an anonymous Highland Park parent,” described Janay Bender Rosenthal as living “in the lap of luxury” in upscale University Park while she received assistance from the Supplemental Nutrition Assistance Program, or SNAP — a federal program that helps low-income families pay for food. The article also included the woman’s booking photo from an unrelated arrest for theft in Collin County — a photo described by the magazine as a “glamour shot.”
In its appeal, D Magazine argued three issues: (1) that the “gist” of the story was substantially true; (2) that the article contained non-actionable opinion rather than verifiable fact, and (3) that D Magazine had not been negligent in its publication of the article, which is still available on the D Magazine website.
“We disagree,” wrote Justice Erin Newell for the three-judge panel: “There are several fact issues about whether Bender [Rosenthal] committed a crime, and these fact issues preclude summary judgment.” Dismissing all three of their arguments, the court ordered the D Magazine defendants to cover Bender’s costs connected to the appeal.
An appeal to the Texas Supreme Court would be the second for D Magazine in the 7-year-old case. In 2017, the Supreme Court denied the publication’s motion to dismiss the lawsuit as SLAPP litigation under the Texas Citizens Participation Act.
The high court found that a reasonable person would perceive that the article accuses the woman — who has since dropped her former married name of Rosenthal — of fraudulently obtaining SNAP benefits; it’s an accusation that federal officials have yet to conclude is accurate, but one that D Magazine argues is true enough to invoke summary judgment.
But after several years of discovery, a broad variety of fact issues have emerged that the court of appeals says need to be resolved at trial. For instance, the $1.3 million Park Cities home described in the article was not Rosenthal’s, but her fiancée’s. Rosenthal maintained her own residence in another, far less posh part of Dallas, and later moved to another house owned by her brother.
While evidence also emerged that Bender failed to report income above SNAP guidelines, letters from agency officials indicated doubt whether the income would have changed her entitlement or that her failure to report it amounted to fraud. Questions also abound over more peripheral details: Whether she shared SNAP-financed meals with her fiancée; whether she had technically been convicted of theft; about property held in a trust for her daughter; her daughter’s attendance at a Park Cities public school; and whether the house she lived in is actually in the Park Cities at all.
The court noted that D Magazine does not dispute numerous factual inaccuracies in the article. Among the inaccuracies noted by the court was the fact that Bender, despite several arrests, had never actually been convicted. In each case she had fulfilled the terms of deferred adjudication, which falls short of a conviction for a crime.
When asked about the allegation that Bender Rosenthal had a criminal history, the author of the article, a freelancer identified as Pam Kripke, testified:
“She has numerous arrests, and she had admitted to having committed crimes. You can be semantical about it. The layperson understands guilt, convictions, all the same. This is not a legal journal. This is D Magazine.”
Janay Bender is represented by Randy Johnston and Chad Baruch of Johnston Tobey Baruch. The D Magazine defendants are represented by Jason P. Bloom of Haynes and Boone.
The case in the Fifth Court of Appeals is D Magazine Partners, et al v. Janay Bender Rosenthal No. 05-01525