© 2012 The Texas Lawbook.
By Janet Elliott
Staff Writer for The Texas Lawbook
AUSTIN — In a closely watched libel case, the Texas Supreme Court Thursday considered whether a television reporter who relied on allegations contained in lawsuits and regulatory proceedings is shielded from defamation liability if her report is substantially true.
Dr. Byron Neely, a neurosurgeon, sued Austin television station KEYE-TV and investigative reporter Nanci Wilson over a five-minute report broadcast on the night of the 2004 Super Bowl. The station won a summary judgment dismissal, which was upheld by Austin’s 3rd Court of Appeals.
The practical effect of requiring reporters to prove the truth of third-party allegations they often use in covering the news would be “staggering,” said the station’s lawyer.
“That is a very radical view of how Texas libel law should be constricted,” said Tom Leatherbury, who represents the media defendants.
The report included information from a Texas Medical Board investigation and interviews with two malpractice claimants, as well as response from Neely’s lawyer. In the case of the lawsuits, one was settled and the other dismissed.
The overall “gist” of the report, said Austin lawyer Jane Webre, was a false and defamatory portrayal of Neely as a surgeon who had used dangerous drugs and was impaired while operating.
Webre said Neely had entered into an agreed order with the Medical Board to be placed on probation for three years, based on allegations that he had self-prescribed medications with the potential to interfere with his ability to perform surgery. The order forbid Neely from self-prescribing medications, and required continuing physical and psychiatric evaluations to verify his fitness to perform surgery.
Neely re-filled prescriptions that another medical doctor had written for allergies and a torn rotator cuff, according to Webre. When justices asked why that is important, Webre said it shows a key difference between the conduct outlined in the agreed order and the TV report’s implication that Neely was sanctioned for prescribing himself dangerous drugs and using them during surgery.
The broadcast caused Neely’s practice to collapse and he moved to LaGrange to try and rebuild it, according to legal documents.
Webre said the Supreme Court has never adopted the third-party allegation rule on which the lower appeals court relied. She said the issue is not whether the broadcast accurately reported the allegations and investigation, but whether the underlying allegations were substantially true.
“Otherwise you’re just handing a bullhorn to a third party,” said Webre, a partner in Austin’s Scott, Douglass & McConnico.
She said if the press doesn’t agree with the way the law is written, they should seek revisions in the Legislature.
Leatherbury, a Dallas partner in Vinson & Elkins, said if reporters are unable to rely on legal documents they would be restricted to only reporting what happens in open court or when a court acts on a lawsuit.
“That would set Texas back many years and make Texas an outlier,” he said.
Justice David Medina asked if there is any requirement on the media “to report facts as opposed to gossip?” Leatherbury said the allegations have to be made by a responsible third party with personal knowledge of the allegations.
Justice Paul Green noted that the media can destroy somebody who is innocent by using accurate information but presenting it in the worst possible way.
The Texas Association of Broadcasters and Reporters Committee for Freedom on the Press weighed in with an amicus brief.
“[Neely] presumes that a journalist, in reporting upon a story, will always be able to determine who is telling the truth. But the very essence of journalism is to promote the search for truth by adequately airing the positions of all sides to a controversy. It is not always the case that a reporter — or anyone else, for that matter — will know what side will ultimately prevail in a dispute,” said the brief by Laura Lee Prather, an Austin partner with Haynes and Boone.
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