© 2016 The Texas Lawbook.
By Janet Elliott
AUSTIN (July 12) – A Beaumont TV station will seek attorney’s fees under the Texas Citizens Participation Act after winning dismissal of a libel lawsuit filed over a broadcast about a doctor’s disciplinary order.
In its first decision involving a media defendant seeking dismissal of a defamation case under the act, a divided Texas Supreme Court last month reversed an appeals court and a trial court that had denied the station’s motion to dismiss.
The Supreme Court held 6-3 that Dr. Minda Lao Toledo did not meet her burden under the participation act, or TCPA, to establish a prima facie case by clear and specific evidence that the broadcast was false.
Texas appellate courts are still establishing standards for the five-year-old act, which has produced an estimated 200 appellate decisions, including four from the Supreme Court. Individuals and business-rating organizations have used the law’s standards for early dismissal, along with traditional media organizations.
Michael McCabe, who represents KBMT Operating Co., said the ruling reinforces that the Supreme Court will reverse lower courts that fail to enforce the TCPA’s expedited dismissal requirement in meritless cases.
The law also applies in traditional libel cases, such as the one filed against KBMT over the station’s 2012 reporting on Toledo, a Port Arthur physician who was disciplined by the Texas Medical Board for engaging in sexual contact with a patient. The station said it based its report on a press release issued by the board and a profile of Toledo on the board’s website, which identified her as a pediatrician, a fact not in the board’s order.
Toledo’s lawyer, Joe House of Houston, said the station sensationalized its report to suggest that the patient was a child, rather than the 60-year-old man she had been dating. Almost immediately after the report first aired, Toledo was inundated with phone calls. The station aired the report three more times before dropping the reference to her being a pediatrician in a fourth broadcast.
Chief Justice Nathan Hecht wrote in the majority opinion that “the truth of a media report of official proceedings of public concern must be measured against the proceedings themselves, not against information outside the proceedings.”
Any ordinary listener would know that improper sexual contact with a child would be a crime prosecuted by the district attorney, Hecht stated. No ordinary listener could reasonably have thought that such a crime would be punished by only a small fine and a requirement for continuing education, he added.
Reporting Privilege Upheld
The court addressed a concern raised by state and national news organizations that an adverse ruling could undermine the “fair reporting privilege,” which entitles journalists to rely on official reports from administrative agencies.
“Requiring the media to independently investigate the facts before reporting on official proceedings would ill serve the public’s interest in government activities,” Hecht wrote.
Justices Phil Johnson and Don Willett joined Justice Jeffrey Boyd’s dissenting opinion. They disagreed with the court’s conclusion that, as a matter of law, every ordinary viewer would share the majority’s understanding of the broadcasts.
“As a result, the Court determines that the trial judge, the appellate justices, and at least some who actually watched the broadcasts are either not ordinary or were just plain wrong,” Boyd stated. “Because Toledo provided some evidence that an ordinary viewer could have understood the broadcasts to assert that she engaged in sexual contact with a pediatric patient, our jurisprudence makes it the jury’s duty, not this Court’s, to decide whether the broadcasts were defamatory, false, or privileged.”
The dissenting justices also declined to join the holding that the measure of the broadcasts’ truth can only be the Medical Board’s proceedings and not the “actual underlying facts.” But that holding is “irrelevant to the outcome of the case,” Boyd wrote, since the majority ruled on the broadcasts’ meaning as a matter of law.
Act Allows ‘Reasonable’ Fees
McCabe, a partner in the Dallas law firm Munck Wilson Mandala, is calculating his fee request. The TCPA allows “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require.”
In interpreting that language, the Supreme Court recently held in Sullivan v. Abraham that because of the placement of the comma a court may not adjust fees based on considerations of justice and equity. The court said the TCPA’s reference to “reasonable attorney’s fees” means “not excessive or extreme, but rather moderate or fair.”
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