Tatum v. Hersh

Dallas Court of Appeals, No. 05-14-01318-CV (December 30, 2015)

Justices Lang, Evans, and Whitehill (Opinion)

Tatum v. The Dallas Morning News, Inc.

Dallas Court of Appeals, No. 05-14-01017-CV (December 30, 2015)

Justices Lang, Fillmore, and Whitehill (Opinion)

A single tragedy gave rise to a series of events that led to two lawsuits and two expansive opinions by the Dallas Court of Appeals, providing insight into the application and operation of Texas libel law and the Texas anti-SLAPP statute, the Texas Citizens Participation Act, in the context of newspaper articles and their formulation.

A seventeen-year-old youth was involved in a one-car accident while his parents were out of town. Later that evening, he began acting irrationally and, despite a friend’s efforts to intervene, took his own life with a handgun. His parents drafted and paid The Dallas Morning News to publish an obituary that suggested the young man’s death was caused by injuries sustained in the auto accident, making no mention of his having fatally shot himself. Hersh had written a book and a blog post that encouraged open discussion of suicide, and particularly the role mental illness and injury play in it. Less than a month after the Tatum suicide, Hersh met with DMN columnist Steve Blow, to encourage him to promote disclosure and open discourse of these issues. Blow then wrote such an article, published in the DMN, using the Tatum suicide and obituary as an example. Although Blow didn’t identify the Tatums or their son by name, a number of people recognized the Tatums and their situation, based on the descriptions in the column. Feeling they had been wrongly portrayed as dishonest and their son held up as mentally ill, the Tatums sued Blow and the DMN for libel and, in a separate action, sued Hersh for intentional infliction of emotional distress for her role in inciting or encouraging publication of the article. The trial court granted summary judgment to Blow and the DMN and, acting pursuant to the TCPA, granted Hersh’s motion to dismiss the Tatums’ claim against her. The Tatums appealed and in two full opinions by Justice Whitehill, the Dallas Court of Appeals reversed both judgments.

The Hersh opinion begins with a thorough explanation of the TCPA and its purposes. The statute provides for dismissal, in prescribed circumstances, of a claim shown “by a preponderance of the evidence [to be] based on … the [defendant’s] exercise of … the right of free speech.” In a decision last year, Pickens v. Cordia (summarized here), however, the Dallas Court of Appeals held that a defendant cannot invoke the TCPA if he or she denies making the communication that forms the basis of the claim. In Hersh, the appeals court expanded or clarified that principle. Here, the defendant Hersh admitted having a conversation with Blow about the general subject in question, but denied making statements about the Tatums or their son that were the basis of the Tatums’ claims. As a result, the Court held, Hersh could not invoke the dismissal procedures of the TCPA.

In the DMN opinion, the Court of Appeals provides a detailed explanation of the Texas law of libel, particularly as applied in the context of newspaper articles and columns dealing with persons who might—or might not—be considered “limited-purpose public figures.” Touching on virtually every aspect of a claim of libel, as well as various defenses peculiarly available to news outlets (e.g., the “fair comment” and “fair account” privileges under Civil Practice & Remedies Code § 73.002(b)), the Court found the Tatums had raised genuine issues of fact that should have precluded summary judgment for the newspaper and its columnist.