The Texas Supreme Court’s opinion in Brady v. Klentzman, --- S.W.3d ----, 2017 WL 387217 (Tex. 2017) has been characterized as a “win” for the media after a “tough week,” but its practical import appears to further expose the media to defamation lawsuits for reporting on matters of public concern. Brady was a clear win for the media in that the court reiterated several important First Amendment principles. The court, however, ultimately sent the case back to the jury for a new trial with a different jury charge rather than dismiss the case for failure to prove any actual damages.

The plaintiff, Wade Brady, sued regarding a newspaper article that, among other things, portrayed him as “unruly and intoxicated” when he interacted with a state trooper and described that Wade’s father, the chief sheriff’s deputy, “continually made contact with the officers” who ticketed his son and described that the officers “were intimidated” when Chief Brady “demanded any and all audio tapes or notes from that incident in their possession.” Personnel in the sheriff’s office were “wondering when the other shoe will drop.” The article included reporting of other prior encounters of a similar nature.

Wade sued for libel and libel per se, alleging that the article was a malicious attempt to portray him as a criminal who used his father’s connections to skirt the charges filed against him. According to Wade, the newspaper “consciously ignored the truth in preparing the story,” by never disclosing that he was acquitted of the minor-in-possession charge. The jury assessed $50,000 in actual damages for mental anguish and damages to Wade’s reputation as well as punitive damages of $1,000,000, which the trial court reduced to $200,000 without requiring the plaintiff to prove that the newspaper’s statements were false and without a finding that the newspaper knew the statements were false or was reckless regarding their falsity.

The court of appeals — holding that the article covered a matter of public concern — reversed and remanded for a new trial, so the jury could evaluate the evidence under the proper standard. In affirming the court of appeals’ opinion, the Texas Supreme Court recognized that the First Amendment (1) requires that a private individual who sues a media defendant for defamation over statements of public concern bear the burden of proof that the statements were false (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776–77 (1986)) and (2) in order to recover punitive damages, such a plaintiff has the burden of proof that the defendant acted with “knowledge of falsity or reckless disregard for the truth” (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974)).

The court noted the U.S. Supreme Court jurisprudence holding that speech deals with matters of public concern when it can be “fairly considered as relating to any matter of political, social, or other concern to the community.” (citing Snyder v. Phelps, 562 U.S. 443 (2011)). The court held that the salacious details of Wade’s encounters with law enforcement directly relate to the general subject matter of the article: Chief Brady’s use of authority on Wade’s behalf. Courts have declined “to get involved in deciding the newsworthiness of specific details in a newsworthy story where the details were ‘substantially related’ to the story” and should not “make editorial decisions for the media regarding information directly related to matters of public concern.”

Because the entire article must be considered as embracing matters of public concern, the trial court jury charge did not comply with First Amendment standards. Although falsity was not an element of defamation at common law, the First Amendment requires private individuals to meet the burden of proof that statements made by media defendants on matters of public concern are false, but here the jury charge required the media defendants to prove that their statements were true. The First Amendment also requires that a private plaintiff prove actual malice, that is, “knowledge of falsity or reckless disregard for the truth,” before recovering anything more than actual damages for a statement on a matter of public concern, but “malice” in the jury charge referred only to an intent to cause injury or conscious indifference to the risk of injury; it was not tied to the truth or falsity of the statements. The court ruled that in addition to proving the traditional “malice” required to obtain exemplary damages under Texas law, one seeking exemplary damages for speech on a public matter must also prove constitutional “actual malice.”

These excellent holdings are based largely upon the court’s own precedent and established First Amendment jurisprudence. The higher standard in the jury charge may foreclose a jury finding against the newspaper in the retrial. The court, however, sent the case back to the jury on thin evidence of damages, raising the specter of a jury trial based upon speculation in a media-unfriendly environment. It is important to this analysis that while Wade pleaded that the statements in the article were defamatory per se, which refers to statements that are so obviously harmful that general damages such as mental anguish and loss of reputation may be presumed, he did not argue this theory at trial, but rather argued that there was evidence of mental-anguish and loss-of-reputation damages in the record.

The court noted that damages in defamation cases must compensate for “actual injuries” and cannot merely be “a disguised disapproval of the defendant.” That is, there must be evidence that people believed the statements and the plaintiff’s reputation was actually affected. The court held that Wade had presented such evidence. However, the evidence as summarized by the dissent seems to fall short of the mark:

One cannot fairly infer that Wade’s reputation was injured at all, let alone on account of the article. If anything, even assuming that the article was related to Wade’s being asked to quit his job, he returned to the same job, indicating that his reputation was not injured. This was no evidence that Wade’s reputation suffered in any way, and certainly no evidence of an injury for which $30,000 would be reasonable compensation.

With regard to Wade’s claims of mental anguish, the evidence is that Wade, shy and introverted before the article, was shy and introverted after the article. This would be far less than would be required as evidence for compensable mental anguish in a case involving any other type of tort — for example a slip and fall. This is a case attacking speech regarding a matter of public concern.

The Greek tyrant Pyrrhus is reputed to have said, following the Battle of Ascalum, “If we are victorious in one more battle with the Romans, we shall be utterly ruined.” After this “win” before the Texas Supreme Court, we might watch warily for the next media victory.