DEFAMATION AND PRIVILEGES IN THE TEXAS
SUPREME COURT SINCE NEW YORK TIMES
RODRIC
B.
SCHOEN*
I.
INTRODUCfION..........................................
II.
THE TEXAS FIRST AMENDMENT CASES. . . . . . . . . . . .. . . . .
III.
THE TEXAS FIRST AMENDMENT OPTION CASE
IV.
THE TEXAS COMMON LAW AND STATUTORY PRIVILEGE
81
84
95
97
CASES....
A. Qualified Common Law Privilege Cases
V.
VI.
VII.
. . . . . . . . . 97
B. Statutory Privilege Cases.......... .. .. .. .. .. .. . .. . .. 105
C. Absolute Common Law Privilege Cases. . . . . . . . . . . . . 108
THE TEXAS CONSTITUTION............................. 111
A FINAL FEDERAL CASE............................... 114
CONCLUSION............................................ 118
I.
INTRODUCfION
"The legitimate state interest underlying the law of libel is the
compensation of individuals for the harm inflicted on them by defamatory falsehood,"l but "[e]very defamation action that the law permits
necessarily inhibits free speech."2 These quotations present the basic
conflict. A tort recovery for defamation penalizes expression, but immunizing defamatory expression denies redress for palpable injury to
the victim's reputation. The Texas 'Supreme Court's balancing of
these competing interests since 1964 is the subject of this Article.
Since 1964, defamation plaintiffs who are public officials or public
figures cannot prevail in a tort action unless they offer clear and convincing evidence that the defendant published the challenged material
with actual malice. As explained by the United States Supreme Court
in New York Times Co. v. Sullivan,3 "actual malice" means that the
* Charles B. Thornton Professor of Law, Texas Tech University School of Law..
B.A. 1956, University of Colorado; J.D. 1966, University of New Mexico. The author
gratefully acknowledges research assistance provided by Katherine Roberts, a student in
the Texas Tech University School of Law.
1. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974);
2. Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex. 1994).
3. 376 U.S. 254 (1964).
81
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defendant published the alleged defamation "with knowledge that it
was false or with reckless disregard of whether it was false or not."4
New York Times imposed a qualified constitutional privilege on the
strict liability common law tort of defamation. Although common law
recognized both absolute and qualified privileges as defenses in defamation cases before 1964, these common law privileges were not mandated by the First Amendment. s Until New York Times, the
prevailing view was that defamation, like obscenity, was not a form of
expression entitled to any protection by the First Amendment (or
equivalent state constitutional provisions).6 Defendants were strictly
liable for defamatory expression unless they proved that the challenged material was protected by a common law or statutory privilege,
which the states were free to adopt or reject without regard to state or
federal constitutional provisions protecting freedom of expression.
The 1964 decision in New York Times worked a significant change
in the existing law of defamation. Not only were certain defamation
cases subjected to a qualified constitutional privilege mandated by the
First Amendment, the Court also required that defamation plaintiffs
overcome the constitutional privilege to prevail on their claim. 7 Common law privileges were defenses. To avoid liability for defamation,
the defendant was obliged to assert and prove the relevant common
law privilege. But the constitutional privilege recognized in New York
Times shifted the threshold evidentiary burden from the defendant to
the plaintiff; defamation plaintiffs could not prevail unless their prima
facie case established actual malice by proof that the defendant published the alleged defamation with knowledge of falsity or reckless
disregard for truth. Hence, in cases to which New York Times and
subsequent constitutional cases applied, the defendant enjoyed a privilege to defame until the privilege was defeated by the plaintiff's proof
of actual malice. Additionally, proving actual malice by a simple preponderance of evidence is not sufficient, for the Court specifically required that proof of actual malice must be clear and convincing to
defeat the first amendment privilege formulated in New York Times.
Although New York Times and later first amendment defamation
cases required public officials and public figures to prove actual malice, the Court did not, and has not, subjected all defamation cases to
the First Amendment. The Court has specifically declined to constitu[d. at 280.
5. The First Amendment was not applied to the states until 1925. Gitlow v. New
York, 268 u.s. 652, 666 (1925).
6. 376 U.S. at 256.
7. New York Times, 376 U.S. at 279-80, 285-86.
4.
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tionalize cases in which a private person seeks recovery for defamation pertaining to a matter of only private concern. s It is in these
defamation cases that the defendant, at least in theory, can be subjected to strict tort liability unless liability is foreclosed by the defendant's assertion and proof of a statutory or recognized common law
privilege. 9 Proof of a common law defensive privilege did not, however, guarantee that the defendant would prevail. The plaintiff might
in turn prove that the privilege was lost because the defamatory state- .
ment was published with malice, which meant that the defendant was
motivated primarily by personal ill will, spite or animosity toward the
plaintiff, or by a desire to cause harm for its own sake. 10 This common
law meaning of malice-defamation motivated primarily by the defendant's personal animosity toward the plaintiff-must be distinguished
from "legal malice," which was implied in the common law to impose
liability without fault for unprivileged defamation.H Both of these interpretations of malice must be distinguished from constitutional actual malice, which New York Times describes as knowledge of falsity
or reckless disregard for the truth. After 1964, the law of defamation
was confused with the terms "implied malice," "personal malice," and
"actual malice," terms which needlessly complicated the law and
which were certain to produce judicial confusion.
Today, more than three decades after New York Times, American
defamation law is divided between constitutional and common law
cases. In those cases controlled by the First Amendment, state defamation law has been modified to accommodate constitutional requirements. In cases not controlled by the First Amendment, state courts
and legislatures are free to develop and apply the law of defamation.
as they think best. This Article reviews selected defamation cases decided by the Texas Supreme Court since New York Times was decided
in 1964. Specifically, this Article examines the relationship and differences, if any, now existing between first amendment and common law
privileges in Texas defamation law-especially as these privileges focus on constitutional and common law "malice." In this Article, all
references to "falsehoods" mean "defamatory falsehoods;" references·
to "public person plaintiffs" mean public officials and public figures
who must satisfy New York Times requirements to recover for defa8. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 755-57, 761
(1985) (plurality opinion).
9. [d. at 761.
10. W. PAGE KEETON ET AL., PROSSER AND KEETON ON lHE LAW OF TORTS § 115, at
833-34 (5th ed. 1984) [hereinafter KEETON].
11. [d.
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mation; and references to "private person plaintiffs" mean persons
who are not required to satisfy New York Times requirements to recover for defamation.
.
II.
THE TEXAS FIRST AMENDMENT CASES
As noted in the Introduction, the United States Supreme Court
has held that the First Amendment requires defamation plaintiffs who
are public persons to offer clear and convincing evidence that the defendant published the defamatory statement with actual malice, which
means that the defendant knew the statement was false or acted with
reckless disregard for its truth. The Court has since conceded that
using the term actual malice as the shorthand equivalent for knowing
falsity or reckless disregard for truth was "unfortunate" because the
term can be confused with common law malice, which means evil intent or actions motivated by spite or ill will. 12
In 1991, the Court recommended that actual malice be eliminated
from jury instructions and replaced, as "better practice," by direct reference to knowing falsity or reckless disregard for truth. 13 In practical
effect, the actual malice requirement adopted by the Court in New
York Times created a first amendment privilege. Imposing tort liability for innocent or negligent defamation is prohibited by the First
Amendment in cases to which New York Times applies. Hence, the
defendant is privileged to make innocent or negligent defamatory
statements, and the plaintiff must overcome this first amendment privilege by proving the defendant's knowing or reckless falsehood.
Although the term first amendment privilege seems more descriptive
and less confusing than the now-disfavored actual malice, some years
will pass before actual malice vanishes from judicial opinions. The
Texas Supreme Court defamation cases reviewed in this section are
confined to actual malice cases controlled by the First Amendment
applied to the states through the Fourteenth Amendment. A later
section reviews malice in Texas Supreme Court defamation cases not
controlled by the Federal Constitution.
The first Texas Supreme Court defamation case expressly addressing the constitutional requirement for actual malice is El Paso
Times, Inc. v. Trexler. 14 Trexler, a university professor who led a public demonstration against the Vietnam War, sued the defendant newspaper for libel, asserting that a published "letter to the editor"
12. Masson v. New Yorker Mag., Inc., 501 U.S. 496, 510-11 (1991).
13. Id. at 511.
14. 447 S.W.2d 403 (Tex. 1969).
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accused him of treason. 15 The trial court held that Trexler was a "public figure" and instructed on actual malice, but the jury found no actual malice. 16 The court of civil appeals reversed on the ground that
the trial court's instruction on actual malice was erroneous because it
"placed a greater burden on plaintiff than is required by law."17 On
appeal, the Texas Supreme Court assumed that the actual malice instruction was erroneous but held "that there was no evidence that
would support a jury finding of actual malice, even if a correct instruction had been given."18 Although the court reviewed the testimony of
the newspaper employee responsible for selecting letters for publication and found nothing to suggest the employee's knowledge of falsity
or reckless disregard for truth regarding treason, it is obvious that the
defendant's employee believed the republished statement concerning
treason was merely the letter writer's opinion and "not a statement of
fact." 19
Viewed in context, the accusation of treason would surely be regarded as rhetorical hyperbole expressing the writer's poor opinion of
the plaintiff, which no reasonable person would regard as an actual
charge of treason. Only a year later, the United States Supreme
Court held that the First Amendment protected a newspaper's republication of another person's rhetorical hyperbole when in context no
reader could understand that the plaintiff was charged with a criminal
offense?O Defamatory expression is not actionable under the First
Amendment unless a reasonable person would find in context that it
states an actual fact. 21 The tort of defamation provides a remedy for
only false facts, not for hurtful insults and epithets.
In El Paso Times, the Texas Supreme Court declared that the
challenged expression "was not libelous" because there was no evidence of the defendant's actual malice. 22 This statement misperceives
the legal effect of the first amendment requirement for actual malice.
at 404.
at 404-05.
at 405.
at 405-06.
at 406.
20. Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 14 (1970).
21. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Court held that public
person plaintiffs cannot recover for the intentional infliction of emotional distress resulting
from offensive publications "without showing in addition that the publication contains a
false statement of fact which was made with 'actual malice.'" [d. at 56 (emphasis added).
In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Court emphasized that allegedly
defamatory expression must be "sufficiently factual to be susceptible of being proved true
or false." [d. at 21.
22. 447 S.W.2d at 406-07.
15.
16.
17.
18.
19.
Id.
[d.
[d.
[d.
[d.
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If the challenged expression is defamatory, its defamatory nature is
not altered by failure to prove knowing or reckless falsehood. The
defamation remains but it is not actionable because the plaintiff has
failed to overcome the first amendment privilege embodied in the requirement for proof of knowing or reckless falsity. A victim of innocent or negligent defamation must suffer the injury without remedy to
accommodate freedom of expression protected by the First
Amendment.
The Texas Supreme Court next addressed the first amendment
privilege created by the requirement for knowing or reckless falsehood in Foster v. Upchurch. 23 Plaintiff Upchurch, sheriff of Culberson
County and a public official, sued columnist Foster and Foster's employer, EI Paso Times, Inc., for defamation in an article falsely declaring that a jail inmate died "after the Culberson County sheriff" beat
the inmate with a pool cue and that "Culberson County" settled a civil
suit filed by the inmate's survivors. 24 The confusion created by the
article's reference to one jail death attributable to sheriffs of two different counties was remedied in a later article apologizing for erroneously referring to the sheriff of Culberson County, when only the
sheriff of Hudspeth County was involved in the inmate's death?S
Sheriff Upchurch nevertheless initiated a suit for libel in Culberson
County, and the case reached the supreme court on the defendant's
plea of privilege to be sued in El Paso County under the venue
statute.
Noting that the venue statute defeated a defendant's plea of privilege when a "cause of action for libel accrued," the court concluded
that the sole issue for decision was whether evidence in the venue
hearing established the plaintiff's claim that a libel action had accrued. 26 Because the constitutional privilege required the sheriff, a
public official, to establish evidence of knowing or reckless falsehood
as an essential element of his claim for actionable defamation, the
court reviewed evidence presented at the venue hearing and held that
it failed to establish the requisite actual malice?7 The plaintiff had
relied only on confusing inconsistencies in the article to establish
23. 624 S.W.2d 564 (Tex. 1981).
24. Foster, 624 S.W.2d at 565. Other statements in the same article correctly attributed the incident to Hudspeth County and its sheriff. [d.
25. [d.
26. [d.
27. [d. at 566.
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knowing or reckless falsehood,2s but the court rejected this inventive
form of res ipsa loquitur.
Because the actual malice required by the First Amendment focuses on the defendant's subjective state of mind, even undisputed
proof of a mistake will not alone overcome the first amendment privilege. "More subjective evidence is required."29 And the sheriff offered no evidence on the columnist's state of mind or the editorial
process leading to publication of the defamatory statement. The court
sustained the plea of privilege and transferred the case to El Paso
County.30
In these first two cases addressing the first amendment privilege,
the supreme court's results cannot be faulted. In neither El Paso
Times nor Foster did the plaintiff's evidence clearly and convincingly
prove the defendant's knowing or reckless falsehood. Additionally,
the accusation of treason in El Paso Times was in context only "rhetorical hyperbole," not a statement of defamatory fact.
The supreme court next addressed the first amendment privilege
in Doubleday & Co. v. Rogers,3! decided in 1984. Dr. Nate Rogers, a
member of the Texas Optometry Board and a public official, sued the
author and publisher of a book for a statement declaring that he had
been thrice indicted for practicing optometry without a license. This
was a false statement; Nate Rogers was never indicted but his brother
Sol Rogers was. The jury found actual malice, no actual damages, and
awarded $2.5 million in exemplary damages. Because no actual damages were awarded, the trial court gave judgment for the defendants.
The appellate court reversed, holding the publisher and author jointly
liable for the exemplary damages. On appeal, the supreme court held
that Dr. Rogers could not recover exemplary damages in the absence
of actual damages 32 and additionally, that the trial evidence did not
establish the publisher's actual malice. 33
Noting that a recent decision by the United States Supreme
Court held that the "First Amendment requires" ind,ependent appellate review for actual malice proven with convincing clarity, the court
addressed Dr. Rogers' contention that the publisher's reckless disre28.
29.
30.
[d.
[d.
[d. at 565 n.2 (including as part of the opinion, a lengthy footnote pleading for
venue reform).
31. 674 S.W.2d 751 (Tex. 1984).
32. [d. at 755.
33. [d. at 756. The author did not challenge the finding that he acted with actual
malice.
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gard for truth was shown by the "inherent improbability" of the false
statement. 34 Although the publisher relied on its authors for factual
accuracy, the publisher had initially submitted the manuscript to
outside counsel, who noted that the author's original reference to indictments against Sol Rogers was potentially defamatory. The publisher then insisted that the author substantiate the statement that Sol
Rogers had been thrice indicted or delete the statement. Some
months later the author presented a revised manuscript in which the
name Nate Rogers was substituted for the name Sol Rogers as the
subject of indictments and appointee to the optometry board; the
.
book was then published. 35
Guided by actual malice cases decided in the United States
Supreme Court and by its prior holdings, the supreme court held that
there was no evidence of reckless disregard for truth, and that the
publisher presented "considerable evidence" that it acted with reasonable care. 36 Although the publisher's failure to revisit the verification
initially requested of the author is not explained, the court observed
that its decision in Dun & Bradstreet, Inc. v. O'Nei(37 held that the
defendant's failure to follow its own verification standards provided
no evidence of "conscious doubt" regarding the truth of the published
statement, so "recklessness was not shown.,,38 In this passing reference to its earlier decision in Dun & Bradstreet, the supreme court
first interjected common law defamation into a case controlled by the
federal constitutional privilege created by the New York Times requirement of actual malice. Although the Dun & Bradstreet case is
discussed later in this Article, it was not a case where the decision was
governed by any judgment of the United States Supreme Court applying the First Amendment to defamatory expression.
After Doubleday, the Texas Supreme Court has addressed the
first amendment privilege created by actual malice in five additional
cases, all of which concern summary judgments and public person defamation plaintiffs. In Beaumont Enterprise & Journal v. Smith,39 the
plaintiff, a judge, sued a newspaper and its reporter for defamation,
alleging that an article accused him of selecting a grand jury panel,
which is illegal and unethical. After a jury mistrial, the trial court
34. [d. at 755 (citing Bose Corp. v. Consumers Union of the United States, Inc., 466
U.S. 485 (1984».
35.
36.
[d.
[d.
37. 456 S.W.2d 896 (Tex. 1970).
38. Doubleday, 674 S.W.2d at 756.
39. 687 S.W.2d 729 (Tex. 1985).
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granted summary judgment for the defendants, the appellate court reversed, and the defendants appealed. Agreeing that the defendants
must show the absence of actual malice to sustain their summary judgment, the supreme court held that reliance on the reporter's affidavit
that she believed the article to be true could not support a summary
judgment. The affidavit was "not evidence that could have been readily controverted," as required by the relevant civil rule. 40 "Summary
judgment was improper."41 As authority for the proposition that the
defamation defendant must show the absence of actual malice for
summary judgment, the court carelessly cited Jackson v.
Cheatwood42-a defamation case not controlled by the First Amendment and relevant decisions of the United States Supreme Court. Relying on evidence revealing the reporter's thorough research, two
justices found there was "no evidence" of actual malice and would
have sustained the summary judgment.43
In the next summary judgment case, Bessent v. Times-Herald
Printing CO.,44 the plaintiff, recently terminated as "head of the Dallas
division of the Department of Public Safety's Narcotics Section,"4s
sued for an article stating that he was fired for "allegedly planting
narcotics on suspects and physically intimidating" them. 46 This reason
for the plaintiff's termination was undisputedly false. 47 The trial court
granted summary judgment for the defendant, the appellate court affirmed, and the plaintiff appealed. The Texas Supreme Court reversed
because the summary judgment evidence offered by the defendant
again failed to establish the absence of actual malice. 48 The basis for
the article was a wire service release, but the defendant "altered" the
UPI release before publication.49 Whether the textual alterations
were relevant to the alleged defamation is not explained. Evidence on
the absence of actual malice was an affidavit of the newspaper's vicepresident declaring that UPI releases are published "without substantive changes" and that UPI has a "world-wide reputation for truth and
accuracy."so In substance, the defendant argued that a newspaper
40.
41.
[d. at 730.
[d.
42. 445 S.W.2d 513 (Tex. 1969).
43. Beaumont Enterprise, 687 S.W.2d at 731 (Gonzalez & Spears, n., dissenting).
44. 709 S.W.2d 635 (Tex. 1986).
45. [d.
46.
47.
48.
49.
50.
[d.
[d.
[d. at 636.
[d. at 635.
[d.
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could not publish with reckless disregard for truth when its source was
reliable, but the court disagreed. 51 Declaring that Bessent was similar
to its earlier decision in Beaumont Enterprise, the court observed that
the defendant's affidavit was "based on knowledge of facts under the
control" of the defendant's employees and could not be readily controverted as required by the relevant civil rule. 52 The case was remanded for trial on the merits. 53
In the next summary judgment case, the supreme court held that
the defendant had established the absence of actual malice to support
summary judgment. In Channel 4, KGBT v. Briggs,54 the plaintiff, a
candidate for the state legislature, sued a television station and two of
its employees for defamation after a brief video image of the plaintiff
was shown during a news story on activities of the Ku Klux Klan. 55
The video caused the plaintiff and his wife to suffer abuse by viewers
who inferred that he was associated with the Klan. 56 The video broadcast occurred four days after the plaintiff was defeated in the election. 57 Employee affidavits offered by the defendants to support the
summary judgment asserted that the plaintiff's image appeared during
the Klan story because a tape of the plaintiff made during his election
campaign had not been entirely erased when it was later reused for
the Klan item. 58
The court held that these uncontroverted affidavits established at
most a negligent mistake and the absence of subjective awareness that
the broadcast would defame the plaintiff. 59 Technical procedures for
preparing a telecast are subject to investigation, and the plaintiff failed
to controvert evidence of a negligent mistake. 60 The plaintiff had ample opportunity (two and a half years) to raise a fact issue by conducting discovery to rebut the defense affidavits disclaiming knowing
or reckless falsehood. 61 The court concluded that its earlier summary
judgment cases, Beaumont Enterprise and Bessent, could be distinguished because the defendants' summary judgment evidence in those
cases consisted of mere "self-serving statements about their state of
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
See id.
Id. at 636.
Id.
759 S.W.2d 939 (Tex. 1988).
Id. at 940.
Id.
Id.
[d.
[d. at 941.
[d. at 942.
Id.
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mind."62 In Channel 4, however, the defense affidavits went "far beyond state of mind to establish a subjective explanation for the
mistake. "63
In the final two Texas defamation cases controlled by the First
Amendment, the supreme court modified summary judgment practice, overruled two of its recent summary judgment decisions, and imposed new burdens on those plaintiffs required to overcome the first
amendment privilege created by New York Times. Of the two cases
decided on the same day in 1989, Casso v. Brand64 and Carr v.
Brasher,65 Casso is the most significant. In Casso, plaintiff Brandmayor of McAllen and a public official-sued Casso, Brand's opponent in a mayoral election. 66 Brand asserted that Casso had defamed
the plaintiff during and after the mayoral campaign. 67 Suit was filed
after Brand, the incumbent mayor, defeated Casso in the election.
The case languished for nearly five years until the defendant sought
and received summary judgment. The appellate court reversed, and
defendant Casso appealed to the Texas Supreme Court. Although the
defendant asserted alternative grounds to support summary judgment,
the court's decision ultimately turns on the issue of actual malice. 68
The defendant first argued that his claim for summary judgment,
based on his affidavit and supporting evidence disclaiming knowing or
reckless falsehood, now presented a federal constitutional question by
reference to the 1986 United States Supreme Court decision in Anderson v. Liberty Lobby, Inc.,69 which addressed summary judgment
practice in the federal courts. In Liberty Lobby, the Court held that
the propriety of summary judgment is governed generally by the "substantive evidentiary burden" relevant to the case, and specifically in
actual malice defamation cases by whether the summary judgment evidence "could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that
the plaintiff has not.,,70 The Texas court rejected the constitutional
claim, holding that Liberty Lobby addressed only procedure in the
federal courts. 71 TIuning to the defendant's next argument, the court
62.
[d.
63.
[d.
64. 776 S.W.2d 551 (Tex. 1989).
65. 776 S.W.2d 567 (Tex. 1989).
66. Casso, 776 S.W.2d at 552.
67.
[d.
68.
69.
70.
71.
[d. at 555-59.
477 U.S. 242 (1986).
[d. at 254-56.
Casso, 776 S.W.2d at 555-56.
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held that the "free expression" provision of the Texas Constitution72
did not require a change in summary judgment procedure in actual
malice defamation cases controlled by the First Amendment. 73 Nor
did the court discern policy considerations sufficient to justify changes
in summary judgment standards under the common law. 74 Yet, the
court did alter Texas summary judgment procedures by combining
policy with a fresh interpretation of the civil procedure rule governing
summary judgments.
After disclaiming policy reasons for changing Texas procedure
and citing a New Jersey case,75 the court declared its "concern that
summary judgment procedures not operate to discourage constitutional rights,"76 a statement that plainly considers policy. The court
then observed that its earlier decisions in Beaumont Enterprise and
Bessent were "insensitive" to free expression concerns and treated
defamation defendants "more harshly" than movants in other types of
cases. 77 The court examined the civil procedure rule permitting summary judgment based on the uncontroverted evidence of an interested
witness if the evidence "could have been readily controverted" and
decided that the phrase means that the testimony at issue "can be effectively countered by opposing evidence."78 Because the defamation
plaintiff must offer clear and convincing affirmative proof of first
amendment actual malice to prevail, summary judgment cannot be
avoided by the plaintiff's bare assertion that at trial the jury might
diSbelieve the defendant's claim that the statement was made without
actual malice. 79 If the plaintiff cannot generate some affirmative
proof of actual malice during the pretrial discovery process, "he is unlikely to stumble on to it at trial. "80
Mayor Brand, the plaintiff, had conducted no discovery and offered no affirmative summary judgment evidence suggesting the defendant's knowing or reckless falsehood, so summary judgment was
proper for all statements for which the defendant's affidavit and other
72. TEX. CONST. art. I, § 8.
73. Casso, 776 S.W.2d at 556. ("We find nothing in the Texas Constitution which
compels a different summary judgment procedure for public figure defamation cases.").
74. [d. ("[W]e see no overriding policy reasons for modifying our summary judgment
standards under the common law.").
75. Dairy Stores, Inc. v. Sentinel Publishing Co., 516 A.2d 220 (N.J. 1986).
76. Casso, 776 S.W.2d at 558.
77. [d.
78.
79.
80.
[d.
[d.
[d. at 559.
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evidence clearly denied knowing or reckless falsehood. 81 Contrary
decisions, Beaumont Enterprise and Bessent, which required the defendant to prove the absence of malice by evidence beyond a mere
affidavit disclaiming knowing or reckless falsehood to secure a summary judgment, were overruled. 82
For Texas summary judgment practice, the impact of Casso can
scarcely be overstated. Defamation plaintiffs required by the First
Amendment to prove knowing or reckless falsehood must develop evidence on actual malice or suffer summary judgment on the defendant's affidavit clearly disclaiming knowing or reckless falsehood.
This holding was applied in the companion case to Casso, Carr v.
Brasher,83 another case arising from a contested mayoral election.
Finding that the plaintiff in Carr had "presented no controverting
proof' that the two defendants believed the statements "were false or
published with reckless disregard for the truth," summary judgment
for the defense was proper. 84
When Casso and Carr are combined with a recent statutory
amendment permitting appeal from a trial court's denial of summary
judgment when a media litigant is involved in a case arising under the
free expression clauses of the Federal or State Constitution,85 Texas
defamation law is now decidedly defendant-friendly in litigation
where the plaintiff must overcome the first amendment privilege created by actual malice. To avoid summary judgment, the plaintiff must
develop affirmative evidence of knowing or reckless falsehood, and a
defendant whose motion for summary judgment is denied by the trial
court can now challenge that judgment on appeal without the time
and expense of a full trial on the merits.
In addition to its holding on summary judgment practice, the
Casso court also held that the first amendment privilege created by
New York Times is available not only to media defendants but to
nonmedia defendants, including individual defendants like Dr.
Casso. 86 Although the court mistakenly declared that the United
States Supreme Court had not decided whether nonmedia defendants
are protected by the requirement for actual malice,8? the court was
81.
82.
[d.
[d.
83. 776 S.W.2d 567 (Tex. 1989).
84. [d. at 571.
85. TEX. CIv. PRAC. & REM. CODE ANN. § 51.014(6) (Vernon 1986 & Supp. 1995).
86. Casso, 776 S.W.2d at 554.
87. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), five
members of the Court held that the New York Times rule applies to public official and
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"reluctant to afford greater constitutional protection to ... the print
and broadcast media than to ordinary citizens" and extended the benefit of actual malice to nonmedia defendants sued by public officials
or public figures. 88
Although the Texas Supreme Court has decided other defamation cases since 1964; the eight preceding cases are its only decisions
addressing the first amendment privilege formulated in New York
Times. Of these eight decisions, in only three did the court review the
evidence on knowing or reckless falsehood developed in an evidentiary hearing or trial on the merits: El Paso Times, Inc. v. Trexler,89
Foster v. Upchurch,90 and Doubleday & Co. v. Rogers. 91 In these
cases, the court held that the trial evidence was insufficient to prove
the defendant's knowing or reckless falsehood. The remaining five
decisions presented the first amendment privilege in cases reviewing
the propriety of summary judgments favoring defamation defendants.
In none of these summary judgment cases did the court hold or even
suggest that the plaintiff's evidence could overcome the first amendment privilege created by New York Times, though in two cases, Beaumont Enterprise & Journal v. Smith 92 and Bessent v. Times-Herald
Printing Co. ,93 the court held that the defendant's summary judgment
evidence failed to disprove knowing or reckless falsehood and remanded for trial. These two cases were later overruled by Casso v.
Brand,94 when the court held that a public official or public figure
defamation plaintiff must establish affirmative evidence on knowing
or reckless falsehood to avoid summary judgment for a defendant
whose affidavits and other evidence clearly disclaim actual malice.
In more than thirty years, since 1964, the Texas Supreme Court
has never found that a defendant published the alleged defamation
with the knowing or reckless falsity required to lose the constitutional
privilege recognized in New York Times. 95
public figure defamation cases against nonmedia defendants. [d. at 773-74 (White, J., concurring). [d. at 781-83 (Brennan, Marshall, Blackmun & Stevens, JJ., dissenting).
88. 776 S.W.2d at 554.
89. 447 S.W.2d 403 (Tex. 1969).
90. 624 S.W.2d 564 (Tex. 1981).
91. 674 S.W.2d 751 (Tex. 1984).
92. 687 S.W.2d 729, 730 (Tex. 1985).
93. 709 S.W.2d 635, 636 (Tex. 1986).
94. 776 S.W.2d 551, 558 (Tex. 1989).
95. [d. at 559.
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III.
95
THE TEXAS FIRST AMENDMENT OPTION CASE
In New York Times and subsequent cases, the United States
Supreme Court held that plaintiffs who are public officials or public
figures cannot recover for defamation unless they establish that the
defendant published the challenged expression with knowledge of falsity or reckless disregard for truth. But what of defamation plaintiffs
who are neither public officials nor public figures? When so-called
"private persons" are defamed, would their cases be controlled by the
First Amendment or by the common law of defamation?
In 1974, ten years after New York Times, a bare majority in the
United States Supreme Court held that the states may define the "appropriate standard of liability," so long as they do not impose liability
without fault. 96 The case, Gertz v. Robert Welch, Inc.,97 offered the
states two first amendment defamation options: (1) state law could
permit a private person to recover on proof of the defendant's ordinary negligence; or (2) state law could require that the plaintiff prove
the defendant's knowing falsity or reckless disregard for truth, as in
the case of public official or public figure plaintiffs. 98 If the state
chose negligence, the lesser standard of culpability, the plaintiff could
recover only damages for actual injury; compensatory damages for
presumed harm to reputation and punitive damages could not be
awarded when the defendant was subject to defamation liability predicated on negligence. 99 If, however, the state chose to apply the New
York Times requirement for proof of knowing falsity or reckless disregard for truth in defamation actions by private persons, the plaintiff's
recovery was not limited to only actual harm; compensatory damages
for presumed harm to reputation and punitive damages could be
awarded. loo
Only one case in the Texas Supreme Court has addressed the constitutional option offered by Gertz. In Foster v. Laredo Newspapers,
Inc.,IOI decided in 1976, the Texas Supreme Court chose negligence.
Plaintiff Foster, a civil engineer and the elected surveyor of Webb
County, who was also hired as a private engineering consultant by the
county, sued the newspaper, alleging defamation in an article discuss96. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (magazine article described
an individual who was not a public figure or public official as a Communist-fronter, Leninist, and a participant of Marxist and Red activities).
97.
98.
99.
100.
[d.
[d. at 347-49.
[d. at 347-50.
[d.
101. 541 S.W.2d 809 (Tex. 1976).
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ing flooding problems in a subdivision, which stated that "Jack Foster,
who doubles as a consultant engineer" for the county, had platted the
subdivision in question. 102 The plaintiff had not platted the subdivision, so the published statement to the contrary was false. The trial
court granted summary judgment for the newspaper, and the appellate court affirmed on two grounds: The plaintiff was both a public
official and a public figure, so the New York Times first amendment
privilege applied; and the defendant newspaper's summary judgment
evidence disproved knowing or reckless falsehood as a matter of
law. 103
On appeal in Foster, the supreme court held that the plaintiff was
not a public official by virtue of employment as a private consultant to
the county,104 was not a public figure with respect to the issue of
flooding,lOS but was a public official as elected county surveyor. 106
Although an elected county surveyor is a public official, the court held
that a fact issue existed because the challenged expression "did not
clearly relate" to the plaintiff's official conduct as a public official. 107
The court then considered the constitutional options created in
Gertz. If plaintiff Foster were found to be a private person at trial,
what standard of liability should govern his action for defamation?
After referring to policy factors discussed in Gertz and citing cases in
other states that had addressed the issue, the court held that a private
person may recover for actual injury by showing that the defendant
"knew or should have known" that the challenged statement was
false. lOS For defamation plaintiffs who are private persons, the subjective requirement pf the defendant's knowing or reckless falsehood was
replaced witlI a conventional objective requirement. The requirement
focused, presumably, on whether the defendant behaved with the care
required of a reasonable person under similar circumstances. 109 The
court specifically declined to adopt a standard of culpability between
negligence and knowing or reckless falsehood. A gross negligence
standard "would not provide demonstrably greater protection to the
102. [d. at 811.
103. [d.
104. [d. at 813-14.
105. [d. at 817.
106. [d. at 814.
107. [d. at 814-16.
108. [d. at 817-19.
109. [d. at 819-20 ("The liability of a publisher or broadcaster of a defamatory falsehood about a private individual may not be predicated upon 'a factual misstatement whose
content [would] not warn a reasonably prudent editor or broadcaster of its defamatory
potential.''') (alteration in original).
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97
media from self-censorship" than an ordinary negligence standard. In
sum, the distinction between negligence and gross negligence in defamation cases "is not entirely clear."llo
Since the Foster decision in 1976-in which the court refused further elaboration on the negligence standard adopted for private person defamation cases in accordance with the constitutional option
created by the United States Supreme Court in Gertz-the court has
never again addressed the issue of negligence in a defamation' case
controlled by the First Amendment. '
IV.
THE TEXAS COMMON LAW AND STATUTORY PRIVILEGE CASES
Since New York Times was decided in 1964, the Texas Supreme
Court has also reviewed defamation cases not controlled by the First
Amendment.
A.
Qualified Common Law Privilege Cases
After New York Times, the first Texas Supreme Court decision to
address malice in the context of common law defamation was Jackson
v. CheatwoodYl In Jackson, the trial court granted summary judgment for a defendant-landlord sued by a former tenant whose lease
was terminated for disorderly behaviorY2 A copy of the landlord's
termination letter to the tenant was also published to the resident
manager of the apartments and to the local apartment association
composed of apartment owners in the city. Upon receipt of the defendant's letter, the association prepared a card for its files describing the
plaintiff-tenant as "undesirable."1l3 On the plaintiff's appeal from
summary judgment, the appellate court held (and the plaintiff apparently conceded) that publication of the alleged libel was subject to a
qualified privilegey4
.
However, was the defendant's qualified privilege lost because the
privileged publication "was made with malice or a want of good
faith?"1l5 The appellate court held that the plaintiff at trial would be
required to prove "malice or want of good faith" to defeat the defense
of qualified privilege, but on motion for summary judgment the defendant, as movant, "had the negative burden of proving the absence of
110. [d. at 819.
111. 445 S.W.2d 513 (Tex. 1969).
112. See Cheatwood v. Jackson, 442 S.W.2d 789, 792 (Tex. Civ. App.-Houston 1969,
writ ref'd n.r.e.).
113.
114.
115.
[d.
[d. at 792.
[d.
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such malice and the presence of good faith."116 According to the appellate court, the record did not "conclusively" negate a fact issue as
to the defendant's malice or want of good faith, so summary judgment
for the defendant was impropery7 On appeal by the defendant, the
supreme court agreed that the record was silent on the absence or
presence of actual malice, that the plaintiff at trial must prove actual
malice, but that the defendant seeking summary judgment must establish the absence of "malice."118 The court approved the appellate
court's reversal of summary judgment,119
Although the appellate court had never referred to an issue concerning actual malice, the supreme court, without explanation, added
the modifying adjective "actual" to malice; however, the supreme
court in Jackson failed to explain the meaning of the words actual malice or malice. In Jackson, the court of civil appeals referred to malice-without the modifying adjective-as sufficient to defeat a
qualified privilege. Also, the court frequently combined malice with
"good faith," declaring that the defendant's qualified privilege to defame is lost by proof that the alleged libel was published with "malice
ora want of good faith. "120 The short supreme court opinion in Jackson transforms malice to actual malice and omits any reference to the
absence of good faith. 121
Jackson was decided five years after the United States Supreme
Court established the first amendment privilege of actual malice in
New York Times. Although the Jackson opinion makes no reference
to New York Times or the First Amendment, did the court nevertheless use the term actual malice in a common law privilege context to
mean only knowing falsity or reckless disregard for the truth? Or did
the court equate actual malice with the defendant's ill will or animosity toward the plaintiff? Or both?
The court of civil appeals opinion in Jackson cited an earlier
Texas case, Buck v. Savage,122 for the proposition that the plaintiff at
trial must prove the defendant's malice or "want of good faith" to
defeat a qualified privilege. 123 Buck contains a general explanation of
the malice or "want of good faith" sufficient to defeat the defendant's
116.
117.
[d. at 793.
[d.
118. Jackson v. Cheatwood, 445 S.W.2d 513, 514 (Tex. 1969).
119.
120.
[d.
Cheatwood, 442 S.W.2d at 793.
Jackson, 445 S.W.2d at 514.
121.
122. 323 S.W.2d 363 (Tex. Civ. App.-Houston 1959, writ ref'd n.r.e.).
123. Cheatwood, 442 S.W.2d at 793.
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reliance on a qualified common law privilege. .Buck, a complicated
defamation case, declared that a qualified privilege applies to a "bona
fide" statement made without actual malice. 124 Because Buck was decided before New York Times, its reference to actual malice cannot
refer to first amendment actual malice. Citing still earlier Texas cases,
the Buck court further explained that the qualified privilege is lost
when "prompted or partially prompted by malice or a want of good
faith. "125 Accordingly, such malice is interpreted as "'ill will, bad or
evil motive, or such gross indifference to the rights of others as will
amount to a wilful or wanton act."'126 This common law malice is also
established when the defendant "knew that the statement was false"
or published the statement with "bad motive," or "entertained ill-will"
toward the plaintiff. 127 The preceding definitions of common law malice offered by the court of civil appeals in Buck distill prior Texas case
law and obviously include elements of what later became first amendment actual malice in New York Times.12 8 The common law qualified
privilege is lost when the defendant published with knowledge of falsity or reckless disregard for truth, if reckless disregard is equated
with a gross indifference amounting to willful or wanton conduct. 129
But the Buck court's definition of malice also includes defamation actuated by "ill will" toward the plaintiffyo
If a defendant relying on a qualified common law privilege to justify defamation is shown to have known the statement was false or
recklessly disregarded the truth, such proof would also show "ill will"
toward the plaintiff. Nevertheless, a defendant might honestly-and
reasonably-believe that the defamatory fact is true but publish it primarily because of ill will and personal animus toward the plaintiff. In
this situation, a knowing or reckless falsehood does not exist, but an
evil motive does. The first amendment privilege recognized by the
New York Times rule of actual malice is confined only to the "evil
motive" that might be fairly implied from the proven fact of knowing
or reckless falsehood, but it does not apply to innocent or negligent
falsehoods animated primarily by the defendant's ill will toward the
plaintiff. Conversely, an honestly believed innocent or negligent de124.
125.
Buck, 323 S.W.2d at 372.
_
[d. at 373 (quoting Lattimore v. 1)tler Commercial College, 24 S.W.2d 361, 363
(Tex. 1930».
126.
127.
[d.
[d.
128. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[d. at 280.
130. Buck v. Savage, 323 S.W.2d 363, 372 (Tex. Civ. App.-Houston 1959, writ ref'd
n.r.e.).
129.
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famatory falsehood-otherwise protected by a recognized common
law defensive privilege-becomes actionable if the plaintiff establishes
that the statement was motivated by ill will or spite toward the
plaintiff.
Defamation developed as a strict liability tort, so the defendant's
reasonable and honest belief in the truth of the statement was no defense. l31 Indeed, the defendant was subject to liability for wholly innocent statements rendered defamatory only by proof of extrinsic
facts unknown to the defendant. Common law qualified privileges
tempered but did not eliminate actions for defamation. A qualified
common law privilege to defame without liability subordinated the
plaintiff's reputation to countervailing social interests. However,
these countervailing interests did not extend to knowing or reckless
falsehood nor to innocent or negligent falsehood motivated, not by
the legitimate interests justifying the privilege, but by ill will or personal spite toward the victim. 132
The supreme court's unexplained reference to actual malice in
Jackson, a common law privilege case decided after New York Times
introduced actual malice to first amendment jurisprudence, creates
uncertainty regarding the relationship, if any, between constitutional
and common law malice. It is certain, however, that the plaintiff in
Jackson was neither a public official nor a public figure, nor was the
defendant a media entity, nor did the alleged defamation pertain to
any matter of public concern. 133
If Jackson creates doubt concerning the relationship between
constitutional and common law malice in Texas defamation law, the
next case addressing a qualified common law privilege and malice
transforms doubt into certainty. In Dun & Bradstreet, Inc. v.
O'Neil,134 the defendant, a credit reporting agency falsely reported to
subscribers that Alvin Truman O'Neil, the plaintiff, had filed for bankruptcy when bankruptcy was actually sought by the plaintiff's brother
Alvin Numan O'Neil. This error was corrected by a clarifying notice
to the defendant's subscribers on the next day.135 The defense of
qualified privilege was alleged when O'Neil sued for defamation. The
trial court granted judgment for the defendant after presentation of
the plaintiff's case; the appellate court reversed and the defendant ap131. KEETON, supra note 10, § 113, at 804.
132. KEETON, supra note 10, § 115, at 833-34.
133. See Jackson v. Cheatwood, 445 S.W.2d 513 (Tex. 1969).
134. 456 S.W.2d 896, 898 (Tex. 1970).
135. [d. at 898. The notice clarified that the bankruptcy report of Alvin Truman O'Neil
was erroneous. [d.
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pealed. In O'Neil, the Texas Supreme Court corrected the appellate
court's holding that the defendant's qualified privilege was lost because specific subscribers receiving the false notice of bankruptcy had
no present interest in credit information concerning the plaintiff,136
The court held that the evidence and undisputed facts demonstrated
that the qualified privilege existed as a matter of law because all recipients of the falsehood had a legitimate and present interest in the
information. 137
The court then considered whether the qualified common law
privilege was defeated by evidence of the defendant's actual malice.
Referring first to its earlier decision in El Paso Times, Inc. v. Trexler 138
and then to New York Times, the supreme court in O'Neil held both
these first amendment privilege cases "applicable" in O'Neil, because
all three cases concerned libel, addressed privileges to defame, and
required malice to overcome the privilege. 139 The court plainly
equated common law malice sufficient to overcome a common law
qualified privilege with first amendment malice that must be proven
by a public official or public figure plaintiff to recover for defamation:
Insofar as the definition of actual malice is concerned we do not
think the instant case involving a conditional privilege is distinguishable from the New York Times and £1 Paso Times cases
. which involve[d] First Amendment Constitutional privileges. 14o
After this holding, the court reviewed the evidence explaining how the
defendant had confused the similar names, .and observed that, while
the defendant may have been negligent, it found no fact issue with
respect to the defendant's knowing falsity or reckless disregard for
truth. 141 The trial court's judgment for the defendant was affirmed.
In dissent, Justice Reaveley offered alternate grounds for reversal. He
would deny any qualified privilege to generate and publish a false report-even by innocent mistake-or he would hold the qualified privilege lost by "failure to exercise care" in identifying the subject of the
defamatory credit report. 142
The preceding quotation from O'Neil holds that first amendment
"knowing or reckless falsity" now applies to determine if a defendant
has lost the protection of a qualified common law privilege. The other
136. [d. at 899-900 (finding the defendant's continuing service policy sufficient to meet
the interested person's test).
.
137. [d. at 899-900.
138. 447 S.W.2d 403 (Tex. 1969) (referring to the First Amendment and actual malice).
139. 456 S.W.2d at 900.
140. [d. at 90{}-()1.
141. [d. at 901.
142. [d.
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form of malice sufficient to defeat a common law qualified privilegean innocent or negligent falsehood motivated by ill will or personal
animus toward the plaintiff-is omitted from the court's definition of
actual malice, despite many prior Texas cases declaring that a qualified privilege is lost if the defamation was motivated by ill will. 143
Obviously, the Texas Supreme Court, guided by its perception of
sound policy, is free to create or abandon common law qualified privileges and to alter the circumstances by which such privileges are defeated. If O'Neil holds that only "knowing or reckless falsity" defeats
a common law qualified privilege, then innocent or negligent falsehoods motivated by ill will and spite are now privileged and the court
has thus expanded the common law privilege for the benefit of defendants and to the detriment of plaintiffs. The court in O'Neil seems
to have reached this result by equating common law malice with first
amendment malice and observing that New York Times and its earlier
decision in El Paso Times are indistinguishable from O'Neil. It is certainly true that nothing less than kno~ing or reckless falsehood will
overcome the first amendment privilege created by New York Times
and later United States Supreme Court decisions addressing defamation actions by public officials and public figures; an innocent or negligent falsehood, even one motivated by ill will or spite, is protected by
the First Amendment. 144 The first amendment requirement for knowing or reckless falsehood focuses exclusively on what the defendant
knew, not why the defendant published the statement. 145 And New
York Times and El Paso Times are certainly distinguishable from
O'Neil, despite the superficial similarities identified by the court in
O'Neil. The plaintiffs in the first amendment cases are public officials
or public figures; Mr. O'Neil is not. The first amendment cases per143. E.g., Gulf Constr. Co. v. Mott, 442 S:W.2d 778, 784 (Tex. Civ. App.-Houston
1969, no writ) (proof that defamatory statement motivated by ill will or bad motives will
defeat conditional privilege); Buck v. Savage, 323 S.W.2d 363, 373 (Tex. Civ. App.-Houston 1959, writ refd n.r.e.) (conditional privilege lost if defamation prompted by ill will or
evil motive).
144. See, e.g., Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52-53 (1971) (stating negligence standard defamation offers insufficient protection for first amendment values of
free and open debate).
145. In Garrison v. Louisiana, 379 U.S. 64 (1964), the Court said:
Debate on public issues will not be uninhibited if the speaker must run the risk
that it will be proved in court that he spoke out of hatred; even if he did speak out
of hatred, utterances honestly believed contribute to the free interchange of ideas
and the ascertainment of truth.
Id. at 73 (emphasis added). The defendant's motive may, however, have some bearing on
the ultimate issue of knowing falsity or reckless disregard for truth. See Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 665 n.6 (1989).
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tained to defamation relating to matters of public concern; the false
statement that Mr. O'Neil sought bankruptcy did not relate to a matter of public concern. The requirement for knowing or reckless falsehood in the first amendment cases is compelled by the United States
Constitution to promote public interests; the common law privilege
invoked by the defendant in O'Neil is discretionary with state courts
and primarily serves private interests. 146 The first amendment privilege must be overcome by clear and convincing evidence as part of the
plaintiff's prima facie case; the common law privilege' addressed by
O'Neil must be asserted as a defense, which is ordinarily overcome by
a simple preponderance of the plaintiff's rebuttal evidence. 147 Despite
these differences between the first amendment cases and the common
law privilege addressed in O'Neil, the culpability described by the defendant's knowing or reckless falsity is identical and was recognized as
sufficient to defeat a qualified common law privilege long before the
United States Supreme Court constitutionalized this historic tort standard for liability in New York Times.
But did the O'Neil decision truly enlarge the common law privilege to defame by immunizing innocent or negligent falsehoods motivated by ill will or spite? The answer is "yes," as held by the Texas
Supreme Court in the last two cases addressing qualified common law
privileges. The first of these final cases is Hagler v. Proctor & Gamble
Manufacturing CO.,148 decided in 1994, some twenty-four years after
the court last addressed the issue of common law malice sufficient to
defeat a qualified privilege in O'Neil. In Hagler, the plaintiff was terminated from employment by the defendant for "theft of company
property," and notices of this action were posted for eight days in the
defendant's plant. Hagler sued for defamation. The trial court allowed the defense of qualified privilege but submitted issues on falsity
of the statement and the defendant's actual malice. A jury verdict
favoring the plaintiff was reversed and remanded for a new trial by the
court of appeals for want of "factually sufficient evidence" showing
the defendant's actual malice. 149 The employee sought writ of error in
the supreme court. In a short per curiam statement denying review
and citing two of its intervening first amendment cases, the court said
that actual malice in the defamation context does not include ill will,
spite or evil motive. "Actual malice is not ill 'will; it is the making of a
statement with knowledge that it is false, or with reckless disregard of
146.
147.
148.
149.
KEETON, Supra
KEETON, supra
note 10, § 115, at 834-35.
note 10, § 115, at 835-36.
884 S.W.2d 771 (Tex. 1994) (per curiam).
[d. at 771.
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whether it is true. "lS0 And the court specifically disapproved the following analysis of actual malice by the court of appeals:
[A]ctual malice generally requires a higher level of culpability
than mere ill will or animosity. Here the evidence does not rise
to the level of ill will, much less to a higher level of
culpability. lSI
.
The defendant's ill will or animosity is not relevant when a defamation
plaintiff seeks to overcome a qualified common law privilege, and
only proof of the defendant's knowing or reckless falsity will defeat
the privilege.
In the final qualified privilege case, Randall's Food Markets, Inc.
v. Johnson,lS2 decided in 1995, the plaintiff-employee sued her former
employer for slander, among other torts, arising from an incident precipitated by the plaintiff's removal of the employer's merchandise
without payment. The defendant had summary judgment on all claims
in the trial court, but the court of appeals reversed. On appeal, the
court first noted that it had only recently acquired statutory jurisdiction over slander actions 1S3 and then addressed the defense of qualified privilege and malice. Because the alleged slander that the
plaintiff had stolen the merchandise occurred during the defendant's
internal investigation of reported employee wrongdoing, the court
held that these communications were protected by a qualified privilege. Is4 While the challenged statements implied that the plaintiff was
"dishonest," though never specifically declaring that the merchandise
was "stolen" but only that the item was removed without payment,
the statements were both true and privileged. The defendant's evidence "established an absence of malice ... by conclusively proving
that its employees had reasonable grounds to believe that their statements were true," evidence which is inconsistent with knowing or
reckless falsehood. ISS A fact issue on knowing or reckless falsehood
cannot exist when the defendant's summary judgment evidence proving reasonable belief in the truth of the challenged statements is not
controverted by the plaintiff. Summary judgment was proper in Randall's Food Markets, and the court rendered judgment that the plaintiff take nothing. 1s6
150.
151.
[d. at 772.
[d. (quoting Proctor & Gamble Mfg. v. Hagler, 880 S.W.2d 123, 128-29 (Tex.
App.-Texarkana 1994, writ denied».
152. 891 S.W.2d 640 (Tex. 1995).
153. [d. at 644 n.2.
154. [d. at 646.
155. [d. at 647 (emphasis added).
156. [d. at 648.
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Review of the preceding common law qualified privilege cases
decided by the Texas Supreme Court since New York Times reveals
that only proof of knowing or reckless falsehood is sufficient to defeat
the privilege. Proving an innocent or negligent falsehood motivated
by ill will or animosity toward the plaintiff will not defeat the qualified
privilege. An identical standard of culpability now governs New York
Times first amendment cases and common law qualified privilege
cases in Texas. Not clearly resolved are issues relating to the burden
of proof and the quality of evidence on knowing or reckless falsehood
in common law privilege cases. In Casso v. Brand,ls7 controlled by
the First Amendment, the supreme court held that the plaintiff, to
avoid summary judgment for the defendant, must produce affirmative
evidence of knowing or reckless falsehood when the defendant's affidavit or other evidence denies actual malice. 1S8 In Randall's Food
Markets, the court's most recent common law privilege case-which
also addressed the propriety of summary judgment for the defendant
on a claim of defamation-the court declared that the defendant seeking summary judgment on the ground of qualified privilege "must
conclusively establish" the absence of malice. 1s9 This holding was supported by citing Jackson v. Cheatwood,160 the court's first common law
qualified privilege case decided after New York Times. The court's
more recent decision in Casso, which requires the plaintiff to prove
malice to avoid summary judgment, was ignored on this issue, though
Casso was cited for another purpose later in the opinion. 161
B.
Statutory Privilege Cases
Texas newspapers and periodicals have for many years enjoyed a
statutory privilege to defame without liability.162 Showing its age, the
statutory privilege probably violates the constitutional command for
equal protection because the electronic media are excluded,163 but the
157. 776 S.W.2d 551 (Tex. 1989).
158. [d. at 559.
159. Randall's Food Markets, 891 S.W.2d at 646.
160. 445 S.W.2d 513 (Tex. 1969).
161. Randall's Food Markets, 891 S.W.2d at 647. The whole point of this discussion is
that the Texas Supreme Court requires plaintiffs to prove malice in first amendment cases,
but requires defendants to prove absence of malice in common law cases on summary
judgment.
162. TEX. CIv. PRAC. & REM. CODE ANN. § 73.002 (Vernon 1986).
163. In Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the Court observed that
a statute prohibiting only newspapers, but not the electronic media, from publishing the
name of an alleged juvenile offender did not "satisfy constitutional requirements." [d. at
104-05.
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print media may publish "fair, true, and impartial" accounts of specified official and public proceedings without fear of liability for republishing what could otherwise be actionable defamation. l64 But the
privilege is qualified; the published account must be "fair, true, and
impartial," and the statutory privilege is lost if the challenged material
"was republished with actual malice after it had ceased to be of public
concern."165" Whether the statutory reference to actual malice means
knowing or reckless falsity, or ill will, or both, is unclear, but whatever
the term means, actual malice will not defeat the statutory privilege
when the challenged expression relates to matters of present public
concern.
The statutory privilege has been addressed by the Texas Supreme
.Court in only two cases since New York Times was decided in 1964. In
Denton Publishing Co. v. Boyd,166 the newspaper reported on a meeting of the city council. After noting that residents of a subdivision
requested that their streets be paved, the report stated that plaintiff
Boyd, who developed the subdivision, "declared bankruptcy and
didn't pave ... streets in the area."167 Boyd had not filed for bankruptcy. He sued for libel and the jury awarded damages. The court of
appeals affirmed, rejecting the newspaper's statutory defense that the
defamatory falsehood was privileged because it was published in a
"fair, true, and impartial" report of the council meeting. 168
On appeal, the supreme court first held that the defamatory falsehood was within the statutory privilege,169 but on rehearing held that
the newspaper had waived the statutory privilege po The court reviewed the bankruptcy statement in context of the published report
and decided that it was subject "to the interpretation that, as a matter
of background information, Boyd was in fact bankrupt instead of reporting that it was stated at the City Council meeting that he was
bankrupt."17l According to the court, the evidence presented fact issues regarding what was stated at the council meeting and whether the
story clearly attributed the defamatory statement to the meeting, and
the defendant failed to establish the statutory privilege by neglecting
164. TEX. CIv. PRAC. & REM. CODE ANN. § 73.002(b)(1) (Vernon 1986).
165. TEX. CIV. PRAC. & REM. CODE ANN. § 73.002(a) (Vernon 1986) (emphasis
added).
166. 460 S.W.2d 881 (Tex. 1970).
167. [d. at 883.
168. Denton Publishing Co. v. Boyd, 448 S.W.2d 145, 1~7 (Tex. Civ. App.-Fort
Worth 1969), affd, 460 S.W.2d 881 (Tex. 1971).
169. 460 S.W.2d at 882.
170. [d. at 885.
171. [d. at 883 (emphasis in original).
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to submit or request jury issues on these disputed facts. "If the facts
upon which the privilege is conditioned by statute are in dispute, the
facts are to be determined by the jury.'m2 The defense of statutory
privilege was thereby waived and judgment for the plaintiff affirmed.
While the statutory privilege protects a defendant newspaper
from common law liability for accurately republishing defamatory
statements initially published by another person in the course of the
specific proceedings covered by the statute, Denton Publishing holds
that the defendant must assert and prove the defense by evidence that
the challenged statement was made during a privileged proceeding
and was attributed to the proceeding. 173
In 1994, twenty-four years after it last addressed the qualified
statutory privilege in Denton Publishing, the court revisited the statute in Herald-Post Publishing Co. v. Hill. 174 Plaintiff Hill, a lawyer,
sued the newspaper and another lawyer for defamation for articles
declaring, among other things, that the plaintiff had threatened a witness in a federal criminal prosecution. Both defendants, invoking the
First Amendment and the statutory qualified privilege, obtained summary judgment. The court of appeals affirmed, except for a single
claim against the newspaper for an article reporting that the witness,
during the federal trial, had testified that the plaintiff and his investigator threatened her. On this sole claim, the court of appeals held
that summary judgment was error, that the newspaper was liable for
defamation, and remanded for trial on damages. 175
On appeal by the newspaper, the supreme court held that the
news report of the witness' testimony describing the plaintiff's "implied" threat was protected by the statutory privilege,176 After comparing pertinent trial testimony with the text of the news report and
considering testimony on all circumstances surrounding the threat, the
court held that the news report was a "fair, true;and impartial" account of a judicial proceeding and thus privileged as a matter of
law,177 This holding was not supported by reference to any Texas case
interpreting or applying the statutory privilege. Because the republished defamation was privileged by statute, the court in Herald-Post
did not address the additional defense based on the First Amendment.
172. Id. at 884.
173. Id.
174. 891 S.W.2d 638 (Tex. 1994).
175. Hill v. Herald-Post Publishing Co., 877 S.W.2d 774 (Tex. App.-EI Paso), affd in
part, rev'd in part, 891 S.W.2d 638 (Tex. 1994).
176. Id. at 639.
177. Id.
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The United States Supreme Court has likewise declined to decide
whether the First Amendment protects a newspaper's accurate report,
republishing defamatory statements of third persons, when the report
pertained to matters of public concern but no statutory or recognized
common law privilege was applicableP8
When the, 1994 Herald-Post decision is compared with the 1970
Denton Publishing decision, a striking change in judicial attitude toward the qualified statutory privilege to republish defamation seems
apparent. Although the 1970 decision concerned a jury verdict for the
plaintiff and the 1994 decision addressed the propriety of summary
judgment, and each case was decided on different facts, the per curiam
analysis favoring the newspaper in Herald-Post seems almost perfunctory when viewed against the court's labored efforts to find disputed
fact issues requiring jury resolution in Denton Publishing. The decision in Herald-Post suggests that the present court is disposed to interpret and apply the statutory privilege less restrictively than did the
court in Denton Publishing. Of all the Texas Supreme Court cases
addressing allegedly privileged defamation and decided since New
York Times in 1964, Denton Publishing is notable as the only decision
sustaining a judgment of tort liability against a defamation defendant.
C.
Absolute Common Law Privilege Cases
An "absolute" privilege to defame has been addressed in only
one Texas Supreme Court case since New York Times was decided in
1964. A second case might recognize an absolute privilege, but the
court carefully avoided modifying the privilege with the word
"absolute."
In James v. Brown,179 decided in 1982, the plaintiff sued psychiatrists for defamation, among other tort claims, concerning statements
that she was "not of sound mind and not competent to manage her
financial affairs."18o Upon application of her children, the plaintiff
was subjected to involuntary hospitalization and thereafter examined
by the defendant psychiatrists, who made the allegedly defamatory
statements to the probate court, and one of whom also made the challenged statement in a letter to the children's attorney, who was preparing an application for temporary guardianship of the plaintiff and·
her estate. The plaintiff was later released from the hospital by writ of
178. Edwards v. National Audubon Soc'y, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S.
1002 (1977).
179. 637 S.W.2d 914 (Tex. 1982).
180. ld. at 916.
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habeas corpus and all proceedings were dismissed by agreement with
the children. 181
The supreme court, citing its 1942 decision in Reagan v. Guardian
Life Insurance Co., 182 stated that "communications in the due course
of a judicial proceeding will not serve as the basis of a civil action for
libel or slander, regardless of the negligence or malice with which they
are made."183 After describing the scope of this judicial privilege and
citing a treatise and the Restatement of Torts, the court held that the
allegedly defamatory statements in reports to the probate court "are
absolutely privileged," as was the letter to the attorney, which was
written "in contemplation" of judicial guardianship. proceedings. 184
Although the absolute privilege precluded an action for defamation,
the court held that the plaintiff might pursue a tort claim for negligence or medical malpractice against the defendants. 18s If the plaintiff
prevailed on a claim of negligence, her damages would presumably be
confined to harm attributable solely to her involuntary hospitalization
and not to any reputation injury caused by publication of the allegedly
defamatory statements, lest the absolute privilege to defame be nullified by indirection. 186
The "absolute" privilege to defame incident to judicial proceedings, recognized by the court in James, is different than the statutory
qualified privilege discussed in the preceding section of this Article
and applied by the court in Herald-Post Publishing Co. v. Hill. 187 In
James, the defendants were participants in a judicial proceeding, and
thus enjoyed an absolute privilege for their allegedly defamatory
statements. 188 In Herald-Post, however, the defendant newspaper was
not a judicial "participant" but merely reported a defamatory statement made by a judicial participant,189 The statutory qualified privilege applied in Herald-Post protects accurate republication of
absolutely privileged defamation by defendants who are not themselves judicial participants protected by the absolute privilege.
181.
[d.
182. 166 S.W.2d 909 (Tex. 1942).
183. James, 637 S.W.2d at 916.
184. [d. at 916-17.
185. [d. at 917-18.
186. In Hustler Magazine v. Falwell, the Court held that a public figure plaintiff could
recover for the tort of intentional infliction of emotional distress for a cruel parody only if
the parody contained a false fact made with knowledge of falsity or reckless disregard for
truth. 485 U.S. 46, 56 (1988).
187. 891 S.W.2d 638 (Tex. 1994).
188. James, 637 S.W.2d at 917.
189. Herald-Post, 891 S.W.2d at 639.
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In a final case, the supreme court seems to find an absolute privilege to defame, though the modifying adjective "absolute" is omitted
from the opinion. In Bird v. W.e. W.,190 decided in 1994, a psychologist examined a child for evidence of sexual abuse, concluded that the
child had been sexually abused by his father, and executed an affidavit
to this effect, which was later submitted to a district court to support a
petition terminating the father's custodial rights. Criminal charges
against the father were later dismissed and the father retained his custodial rights. He then sued the psychologist for negligent misdiagnosis
of the child, asserting that such negligence toward the child produced
foreseeable injury to the father identified as the perpetrator of the
abuse. While the suit claimed negligent misdiagnosis, the supreme
court emphasized that the essence of the father's claim is that the defendant's communication of her findings to others caused him emotional and economic harm. 191
The court in Bird first held that summary judgment for the defendant psychologist was proper because she owed no professional duty
to the father "to not negligently misdiagnose" the child. 192 The court
then considered the defense of privilege. Observing that the defendant psychologist claimed no expertise in identifying perpetrators of
child sex abuse and finding no facts suggesting that the psychologist's
professional relationship with the child required disclosure of the alleged perpetrator's identity to third persons, the court declared that
she was subject to liability for defamation "unless a privilege attaches"
to the communication. 193 Citing its earlier decision in James v.
Brown,194 the court found the defamation privileged because the judicial privilege' extends to "pre-trial proceedings, including affidavits
filed with the court."195 Although the father claimed negligent misdiagnosis, the court agreed that a negligence claim could not obscure
what was actually a claim for defamation contained in a statement
protected by the judicial privilege. 196 Concluding, the court held that
"a privilege exists for communication ... in the course of a judicial
proceeding whether the [defamatory] accusation was negligently
made."197 In a concurring opinion, two justices observed that the ma190.
191.
192.
193.
194.
195.
196.
197.
868 S.W.2d 767 (Tex. 1994).
Id. at 768-69.
Id. at 770.
Id. at 771.
637 S.W.2d 914 (Tex. 1982).
Bird, 868 S.W.2d at 771.
Id. at 772 (citing Doe v. Blake, 809 F. Supp. 1020, 1028 (D. Conn. 1992».
Id.
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jority opinion in Bird should not be read to grant an "absolute" privilege to mental health professionals. 198 It is true that the majority in
Bird never described the judicial privilege as absolute, but only negligent misdiagnosis was claimed.
According to the earlier case of James, the absolute judicial privilege protects all defamatory statements, "regardless of the negligence
or malice with which they are made."199 As defined in James, an absolute privilege protects even a knowing falsehood motivated by ill will
or spite when published incident to a judicial proceeding. 20o A judicial privilege modified to protect only innocent or negligent falsehoods is no longer absolute; it is qualified. Given the conventional
justification for an absolute judicial privilege-that all participants
must be unhampered by fear of retaliatory defamation suits-it seems
premature to suggest that the Bird majority's failure to use the term
"absolute privilege" in a case alleging only a negligent falsehood has
transformed the common law judicial privilege from absolute to
qualified.
V.
THE TEXAS CONSTITUTION
Although state law can never provide less protection for freedom
of expression than the minimum required by the First Amendment,
state law can provide more; the First Amendment sets the floor for
freedom of expression and state law sets the ceiling. Article I, Section
8 of the Texas Constitution is the state counterpart to the First
Amendment and provides:
Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that
privilege; and no law shall ever be passed curtailing the liberty
of speech or of the press. 201
Section 8 has been decisive in only one defamation case in the
Texas Supreme Court since New York Times was decided in 1964, and
the case does not address the state constitutional constraints, if any,
that could provide greater protection for defamatory expression than
controlling federal decisions interpreting the First Amendment. In
Hajek v. Bill Mowbray Motors, Inc.,z°2 decided in 1983, an auto dealer
suing for defamation secured a temporary injunction prohibiting defendant Hajek from continuing to drive his car bearing statements
198. Id.
199. James, 637 S.W.2d at 916 (emphasis added).
200. Id. at 916-17.
201. TEX. CONST. art. I, § 8.
202. 647 S.W.2d 253 (Tex. 1983).
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that the dealer had sold him a "lemon." The supreme court, addressing only the injunction, held that it was an unconstitutional prior restraint forbidden by the Texas Constitution. 203 Citing a 1920 Texas
case204-decided before the First Amendment was applied to the
states, which also condemned an injunction on speech for violating
Section 8-the court in Hajek declared that "[d]efamation alone is not
a sufficient justification for restraining an individual's right to speak
freely."20s Although Section 8 prohibits prior restraints on expression, it does not immunize defamation; and the court in Hajek addressed neither the merits of the plaintiff's claim for past defamation,
nor any defenses to the alleged tort. 206
In 1992, the Texas Supreme Court "rediscovered" the free expression provision of the Texas Constitution. In Davenport v. Garcia,207 the majority held that Article I, Section 8 of the Texas
Constitution "provides greater rights of free expression than its federal equivalent."208
Adopting a more stringent test than similar first amendment
cases decided by the United States Supreme Court, the Davenport
court held that the challenged judicial order violated the free expression provision of the Texas Constitution. 209 Although Davenport is
not a defamation case and the facts pertain only to a judicial prior
restraint on expression, the court's statement that the Texas Constitution "provides greater rights of free expression"210 than the First
Amendment is not specifically confined to prior restraints. Two later
cases, Star- Telegram, Inc. v. Walke,zn and Ex parte Tucci,212 both invalidating judicial prior restraints on expression, reiterate the initial
203. [d. at 255.
204. Ex parte Thcker, 110 Tex. 335, 220 S.W. 75, 76 (l920) (stating that the Texas Constitution allows individuals to speak freely, but individuals are responsible for damages
caused).
205. Hajek, 647 S.W.2d at 255.
206. [d.
207. 834 S.W.2d 4 (Tex. 1992) (prior restraint case addressing a trial court's injunction
prohibiting all parties and lawyers from discussing a pending civil case "outside the court
room" or with other persons).
208. [d. at 10.
209. [d. at 10-11.
210. [d. at 10.
211. 834 S.W.2d 54, 54-58 (Tex. 1992) (applying two-part Davenport test).
212. 859 S.W.2d I, 5 (Tex. 1993) (citing Davenport, 834 S.W.2d at 7, stating that language of Texas Constitution "demonstrates Texas' strong and longstanding commitment to
free speech.").
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holding in Davenport and the "independent vitality'?213 of the free expression provision of the Texas Constitution.
Except for the court's 1983 decision in Hajek,214 the Texas
Supreme Court has not yet applied the Texas Constitution to resolve
any substantive issue in a defamation case. Justice Gonzalez in separate opinions has invoked the Texas Constitution to justify changing
summary judgment procedure in defamation cases brought by public
person plaintiffs who must prove knowing or reckless falsehood,215
though when the majority altered summary judgment procedure in
defamation cases in Casso v. Brand, it specifically disclaimed reliance
on either the state or federal constitution.216
A 1994 case does refer to the free expression provision of the
Texas Constitution in a substantive decision concerning false light invasion of privacy, the tort cousin of defamation. In Cain v. Hearst
Corp.,217 the majority held that Texas did not and would not recognize
the specific tort of false light invasion of privacy.218 Among reasons
for rejecting the "false light" tort, even when the challenged statement
is not otherwise actionable as defamation, was the requirement that
the false light be "highly offensive" to a reasonable person, which interjects objectionable uncertainty and "would have an unacceptable
chilling effect on freedom of speech."219 Citing Davenport and the
Texas Constitution, the court declared that "in some aspects our free
speech provision is broader than the First Amendment," and concluded that the benefit of permitting tort recovery for "highly offensive" but non-defamatory expression "is outweighed by the probable
chilling effect" on free expression that would follow recognition of the
tort. 220
Although the United States Supreme Court has allowed false
light claims for non-defamatory expression under the First Amendment, it has also required that there must be proof of knowing or
reckless falsehood, as in cases of public official Or public figure defa213. Davenport, 834 S.W.2d at 11.
214. Hajek, 647 S.W.2d at 255 (court relied solely on the-Texas Constitution to invalidate a judicial prior restraint on defamatory expression).
215. Casso v. Brand, 776 S.W.2d 551, 564-65 (Tex. 1989); Channel 4, KGBT v. Briggs,
759 S.W.2d 939, 944-45 (Tex. 1988).
216. Casso, 776 S.W.2d at 555-57.
217. 878 S.W.2d 577 (Tex. 1994).
218. [d. at 584.
219. [d.
220. [d.
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mation cases. 221 Cain is not a defamation case, but the Texas Supreme
Court's rejection of the false light tort, which often duplicates defamation, and its reference to a "chilling effect" forbidden by the Texas
Constitution reveal that the Texas Constitution has been interpreted
to protect greater rights of free expression than the First Amendment.
What the United States Supreme Court has held permitted by the
First Amendment is forbidden by the Texas Constitution.
To the present, and excepting the single prior restraint case,222 no
majority opinion by the Texas Supreme Court has invoked the free
expression provision of the Texas Constitution to inform its judgment
in a defamation case. However, the court's 1992 decision in Davenport and its 1994 decision in Cain, both holding that the Texas Constitution provides greater rights of free expression than the First
Amendment, are cases of recent vintage. Texas lawyers representing
defendants in defamation cases can now be expected to invoke the
Texas Constitution to seek additional protection for defamatory
speech, while lawyers for plaintiffs in defamation cases will resist further erosion of the right to recover for harm to reputation, noting that
the broad guarantee of free expression contained in the Texas Constitution is qualified by a clause declaring that persons shall be "responsible for the abuse of that privilege."223 The court's decision in Cain
vividly illustrates the truism that the Texas Constitution accords
greater protection to some rights of free expression than the First
Amendment. Only future cases will determine whether the Texas
Constitution provides more protection for defamatory expression than
the First Amendment.
VI.
A
FINAL FEDERAL CASE
Does the First Amendment afford any protection to a defendant
when a private person sues for defamation related only to a matter of
private concern? In 1985, this question was presented to the United
States Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,224 and the Court answered that the First Amendment does
not apply. Defamation law applied by t~e states is not subject to fed221. In Time, Inc. v. Hill, the Court required proof of knowing or reckless falsehood.
385 U.S. 374, 390 (1967). In Cantrell v. Forest City Publishing Co., the Court declined to
decide whether the states might "constitutionally apply a more relaxed standard of liability" than knowing or reckless falsehood in a false light action. 419 U.S. 245, 250 (1974).
222. See Hajek, 647 S.W.2d at 255. For a discussion of this case see supra notes 202-D6
and accompanying text.
223. TEX. CONST. art. I, § 8.
224. 472 U.S. 749 (1985).
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eral constitutional constraints when private persons-who are neither
public officials nor public figures-seek recovery for defamation not
related to matters of public concern. Or so it seems.
In Dun & Bradstreet, the defendant credit reporting agency
falsely reported to five subscribers that the plaintiff Greenmoss Builders had filed for bankruptcy, when the petition for bankruptcy was
actually filed by a former employee of Greenmoss. Greenmoss sued
Dun & Bradstreet in a Vermont state court for defamation and the
jury awarded $50,000 in presumed compensatory damages and
$300,000 in punitive damages, which judgment was affirmed by the
state supreme court. 225
Because the plaintiff, a private person, recovered presumed compensatory damages and punitive damages without proof of knowing or
reckless falsehood, the issue on appeal to the United States Supreme
Court was whether its 1974 decision in Gertz v. Robert Welch, Inc. 226
applied to the facts in Dun & Bradstreet. 227 Gertz held that private
persons suing for defamation could not recover compensatory damages for presumed harm to reputation and punitive damages unless
they proved knowing or reckless falsehood. 228 If a state chose to permit recovery on a showing of lesser culpability than knowing or reckless falsehood, the private person could recover only damages for
actual injury. The Court in Gertz also held that the states could not
subject defamation defendants to liability without fault. 229 In Dun &
Bradstreet, five Justices, in a plurality opinion and two concurrences,
limited the rules of Gertz with respect to matters of public concern
and held that permitting private persons to recover presumed and punitive damages without proof of knowing or reckless falsehood is not
prohibited by the First Amendment when the defamation relates to
matters of only private concern. 230 The plaintiff's judgment was
affirmed. 231
The facts of Dun & Bradstreet reveal that publication of the defamatory falsehood was attributable to the defendant's probable negligence in first hiring a juvenile to examine bankruptcy files and then
failing to confirm the employee's report of bankruptcy by contacting
[d. at 751-53.
226. 418 U.S. 323 (1974).
227. 472 U.S. at 753.
228. Gertz. 418 U.S. at 349. For a discussion of Gertz. see supra notes 96-100 and
accompanying text.
229. [d. at 347.
230. Dun & Bradstreet, 472 U.S. at 763.
225.
231.
[d.
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the plaintiff business before publishing the falsehood to its subscribers. Except for its conclusion that the defamation judgment for presumed and punitive damages was not based on proof of knowing or
reckless falsehood by the defendant, the Court made no further reference to the culpability, if any, required to sustain a judgment for a
private person defamed with respect to a matter of only private concern. Although the Court had declared in Gertz that the states could
not impose liability without fault when a private person sued for defamation, Dun & Bradstreet confined Gertz to private person suits for
defamation pertaining to matters of public concern and found that the
"reduced constitutional value" of speech pertaining to matters of only
private concern is outweighed by the state's interest in providing effective remedies for reputational harm suffered by private persons
who are victims of defamation. 232
If Dun & Bradstreet allows a private person to recover presumed
and punitive damages for negligent defamation respecting matters of
only private concern, as it surely does, are the states now free to revive the common law rule of strict liability in these "private personprivate matter" defamation cases and impose liability without fault?
This question is not answered in Dun & Bradstreet. Justice Powell's
plurality opinion declares that expression on matters of purely private
concern is "not totally unprotected"233 by the First Amendment and
supports this observation by a cryptic reference to Connick v. Myers,234 which is not a defamation case, though it did recognize that
expression related to matters of public concern enjoys greater protection under the First Amendment than expression related to matters of
only private concern. Justice White's concurring opinion in Dun &
Bradstreet observes that the plurality opinion's holding that the Gertz
rules on presumed and punitive damages are not applicable in a private person-private matter case must mean "that the Gertz requirement of some kind of fault ... is also inapplicable in cases such as
this.,,235 Whether the First Amendment does permit recovery of damages for defamation published without fault in a private person-private matter case has not been decided by the Court, nor has the
question been addressed in any case decided by the Texas Supreme
Court since Dun & Bradstreet was decided in 1985.
232. ld. at 761.
233. ld. at 760.
234. 461 U.S. 138 (1983).
235. 472 U.S. at 773-74.
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Given the "reduced constitutional value"236 accorded to expression relating to matters of only private concern and the basic proposition that injurious and false statements of fact are not protected per se
by the First Amendment,237 how might recovery for defamation published without fault affect the process of balancing a private person's
reputation against the defendant's "right" to publish defamatory falsehoods? Because the reputational injury suffered by the victim is identical, whether the defamation is published with or without fault, the
only objection to imposing liability without fault is the absence of culpability. It is a commonplace that defendants subjected to strict liability in tort act at their peril, whether they keep wild or vicious animals,
engage in abnormally dangerous activities, or produce chattels with
dangerous manufacturing defects, but these defendants have prior
knowledge that when these activities produce harm liability follows
regardless of fault. And strict tort liability is easily avoided by forgoing those activities imposing liability without fault.
A similar analysis could be applied to private person-private matter defamatory falsehoods published without fault in situations not
covered by a common law or statutory privilege. If the content of the
challenged statement "makes substantial danger to reputation apparent"238 and the defendant with this knowledge nevertheless publishes
the defamatory falsehood, albeit without fault, the defendant is strictly
liable to the private person plaintiff defamed with respect to a matter
of only private concern. Why should the First Amendment immunize
these harmful falsehoods when the defendant, with knowledge of
"danger to reputation" and free of compulsion, nevertheless chooses
to publish the defamatory material?239 If liability without fault for
private person-private concern defamation seems unduly harsh, recovery of punitive damages could be prohibited; or recovery for presumed damage to reputation could be limited, or replaced by a
requirement for proof of actual injury; or the plaintiff could be required to prove falsity to recover. If the First Amendment does permit liability without fault for defamation of private persons in matters
of only private concern, a question the Court has not yet decided, such
actions should be confined to statements whose content makes "dan[d. at 761.
237. "False statements of fact are particularly valueless ...." Hustler Mag. v. Falwell,
485 U.S. 46, 52 (1988).
238. Gertz, 418 U.S. at 348 (footnote omitted).
239. Even when the defendant believed in good faith that the defamatory falsehood
was true, "the fact remains that it is he who launched the publication knowing that it could
ruin a reputation." Gertz. 418 U.S. at 390 (White. J., dissenting ).
236.
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ger to reputation apparent." A statement whose content creates no
apparent danger to reputation but is made defamatory only by reference to extrinsic facts unknown to the defendant should never be actionable, for strict liability in this situation would require neither
culpability nor knowledge of danger to reputation. The First Amendment and the Texas Constitution should protect all misstatements of
fact whose content creates no apparent danger to reputation. If it
were otherwise, few persons would be willing to make any statement
of fact concerning another, lest unknown extrinsic facts convert a
facially innocent statement to actionable defamation.
VII.
CONCLUSION
After this review of defamation and privilege cases decided by
the Texas Supreme Court since New York Times changed the law of
defamation in 1964, what are appropriate concluding observations?
The partial "federalization" of the tort of defamation has produced an
anomalous body of jurisprudence in the Texas Supreme Court. This
has been further complicated by the possibility of future reliance on
the free expression provision of the Texas Constitution, which might
be interpreted to accord greater protection for defamatory falsehoods
than the minimum prescribed by the First Amendment.
For public persons-those defamation plaintiffs least favored by
the First Amendment-Texas law is controlled by New York Times
and subsequent cases decided by the United States Supreme Court.
That Court has made an effort to harmonize, balance, accommodate,
or reconcile first amendment protection for expression about public
persons and matters of public concern with historic common law protection for persons whose reputations are besmirched by defamatory
falsehoods. Such an effort requires that public person plaintiffs allege
and prove, by clear and convincing evidence, that the defendant published the challenged material with knowledge of its falsity or with
reckless disregard for its truth. Additionally, these New York Times
plaintiffs must prove that the challenged statement is false, so that the
plaintiff's prima facie case must negate truth, though the common law
recognized truth as an affirmative defense to be proven by the defendant. For plaintiffs who must prove knowing or reckless falsehood,
requiring them to prove falsity cannot be criticized, for proof of knowing falsehood would ordinarily prove that the challenged statement is
not true. But in few, if any, New York Times cases will plaintiffs be
able to establish the defendant's publication of knowing falsehood,
and the plaintiff's proof of reckless disregard for truth would not nec-
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essarily establish that the published statement is in fact false. As interpreted by the United States Supreme Court, the First Amendment
imposes formidable burdens on New York Times plaintiffs. They must
prove that the challenged statement is defamatory; they must also
prove that the defamatory fact is false; and they must also prove by
clear and convincing evidence that the false defamatory fact was published by the defendant with knowledge of falsity or reckless disregard
for the truth.
In practical effect, at least in Texas, the First Amendment has prevented New York Times plaintiffs from ever recovering for defamation. In no case reviewed by the Texas Supreme Court since New
York Times was decided more than thirty years ago has a public official or public figure overcome· first amendment obstacles and recovered damages for defamation. In fact, if not in theory, the qualified
first amendment privilege created by New York Times has become an
absolute privilege in Texas.
In the other class of defamation cases controlled by the First
Amendment, private person plaintiffs defamed with respect to a matter of public concern (e.g. Gertz plaintiffs), the Texas Supreme Court
accepted the first amendment option offered in Gertz. As a result,
private person plaintiffs were allowed to recover for defamation on
proof of the defendant's negligence and, as required by Gertz, proof
of damages for actual injury. But no Gertz plaintiff has ever recovered for defamation in any case reviewed by the Texas Supreme Court
since Gertz was decided in 1974. Indeed, except for Foster v. Laredo
Newspapers, Inc.,24o decided in 1976, the court has never since reviewed any case addressing a Gertz plaintiff's claim for defamation
based on the defendant's negligence and proof of actual injury.
Excluding cases controlled by the First Amendment, the remaining defamation cases reviewed in this Article concerned absolute or
qualified common law privileges or a statutory privilege. Plaintiffs in
these cases fared little better in the Texas Supreme Court than did
their New York Times and Gertz counterparts. In all these common
law and statutory privilege cases, save one, the court held that the
plaintiff had failed to defeat the defensive privilege. In the single case
affirming judgment for a defamation plaintiff, Denton Publishing Co.
v. Boyd,241 the court held that the defendant had waived the protective statutory privilege by neglecting to request jury issues on disputed
240. 541 S.W.2d 809 (Tex. 1976) (accepting the Gertz option and remanding the case
for trial on the merits).
241. 460 S.W.2d 881 (Tex. 1970).
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facts. Since New York Times was decided in 1964, the Texas Supreme
Court has reviewed at least seventeen defamation cases presenting a
privilege arising under the First Amendment, the common law, or a
statute. In only one case, Denton Publishing, has the court affirmed a
plaintiff's judgment awarding damages for defamation,z42
242. This Article discusses only defamation cases reviewed by the Texas Supreme
Court since 1964. A review of cases decided in the Texas Courts of Appeals during the
decade 1984 through 1994 and denied review by the Tex;is Supreme Court reveals that trial
court judgments for defamation plaintiffs were occasionally affirmed by the courts of appeals: Borden, Inc. v. Rios, 850 S.W.2d 821 (Tex. App.-Corpus Christi 1993, writ
granted), judgm'ts vacated per settlement, 859 S.W.2d 70 (Tex. 1993); Shearson Lehman
Hutton, Inc. v. Thcker, 806 S.W.2d 914 (Tex. App.-Corpus Christi 1991, writ dism'd
w.o.j.); Bradbury v. Scott, 788 S.W.2d 31 (Tex. App.-Houston [1st Dist.] 1989, writ denied); K-Mart Corp. v. Martinez, 761 S.W.2d 522 (Tex. App.-Corpus Christi 1988, writ
denied); Chasewood Constr. Co. v. Rico, 696 S.W.2d 439 (Tex. App.-San Antonio 1985,
writ ref'd n.r.e.); Outlet Co. v. International Sec. Group, Inc., 693 S.W.2d 621 (Tex. App.San Antonio 1985, writ refd n.r.e.); Livingston Shipbuilding Co. v. Inland West Corp., 688
S.W.2d 192 (Tex. App.-Beaumont 1985, writ ref'd n.r.e.); Frank B. Hall & Co. v. Buck,
678 S.W.2d 612 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.).
For the preceding eight cases affirming a plaintiffs defamation judgment and denied
review by the Texas Supreme Court, more than twice as many decisions by the courts of
appeals during the same decade-also denied review by the supreme court-held for defamation defendants, based wholly or partially on a first amendment privilege, an absolute or
qualified common law privilege, or a statutory privilege: Ross v. Labatt, 894 S.W.2d 393
(Tex. App.-San Antonio 1994, writ dism'd w.o.j.); Reeves v. Western Co., 867 S.W.2d 385
(Tex. App.-San Antonio 1993, writ denied); Martin v. Southwestern Elec. Power Co., 860
S.W.2d 197 (Tex. App.-Texarkana 1993, writ denied); Pioneer Concrete, Inc. v. Allen, 858
S.W.2d 47 (Tex. App.-Houston [14th Dist.] 1994, writ denied); Johnson v. Southwestern
Newspapers Corp., 855 S.W.2d 182 (Tex. App.-Amarillo 1993, writ denied); Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88 (Tex. App.-Corpus Christi 1992, writ dism'd w.o.j.);
Howell v. Hecht, 821 S.W.2d 627 (Tex. App.-Dallas 1991, writ denied); Lane v. Port Terminal RR Ass'n, 821 S.W.2d 623 (Tex. App.-Houston [14th Dist.] 1991, writ denied);
Kimmell v. Loeffler, 791 S.W.2d 648 (Tex. App.-San Antonio 1990, writ denied); Villareal
v. Harte-Hanks Communications, Inc., 787 S.W.2d 131 (Tex. App.-Corpus Christi 1990,
writ denied), cert. denied, 499 U.S. 923 (1991); Brady v. Cox Enter., Inc., 782 S.W.2d 272
(Tex. App.-Austin 1989,writ denied); Yiamouyiannis v. Thompson, 764 S.W.2d 338 (Tex.
App.-San Antonio 1988, writ denied), cert. denied, 493 U.S. 1021 (1990); Holloway v.
Texas Medical Ass'n, 757 S.W.2d 810 (Tex. App.-Houston [1st Dist.] 1988, writ denied);
Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512 (Tex. App.-Tyler 1987, writ dism'd
w.o.j.); Darrah v. Hinds, 720 S.W.2d 689 (Tex. App.-Fort Worth 1986, writ ref'd n.r.e.);
Odeneal v. Wofford, 668 S.W.2d 819 (Tex. App.-Dallas 1984, writ refd n.r.e.).
In this thirty-year review of cases decided by the Texas Supreme Court, the court has
affirmed only two judgments awarding damages to defamation plaintiffs. In Denton Publishing Co. v. Boyd, 460 S.W.2d 881 (Tex. 1970), discussed in text at supra notes 166-73, the
court held that the defendant had "waived" the statutory privilege by failing to request jury
issues on disputed facts and affirmed the plaintiff's defamation judgment for $10,000. In
Leyendecker & Assocs., Inc. v. Wechter, which presents no issue of privilege, the court
affirmed the defamation plaintiffs judgment for $1,500 in compensatory damages and
$8,000 total exemplary damages, awarded individually in the sum of $4,000 against each
defendant. 683 S.W.2d 369, 375 (Tex. 1985).
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The Texas Supreme Court should not be criticized for the results
in any defamation case controlled by the First Amendment. Its compliance with the spirit and letter of United States Supreme Court decisions is compelled by the fundamental principle of federal
constitutional supremacy. Whether New York Times, Gertz, and other
federal defamation decisions are good or bad, wise or foolish, is irrelevant because the Texas Supreme Court must follow them, even though
the Texas court might have decided these cases differently under the
First Amendment, the Texas Constitution or the state's common law
of defamation. The United States Supreme Court, not the Texas
Supreme Court, provides the rules of decision in defamation cases
controlled by the First Amendment.
Although the Texas Supreme· Court can disclaim responsibility
for defamation cases controlled by the First Amendment, it is responsible for defamation cases governed only by common law or statutory
privileges. For these cases, two developments merit comment. First,
has the former absolute common law judicial privilege been changed
to a qualified privilege? Second, is the court's expansion of recognized common law qualified privileges, accomplished by eliminating
the defendant's ill will or evil motive as a factor defeating the privilege, justified?
Taking these questions in the order presented, did the supreme
court obliquely convert an absolute judicial privilege to a qualified
privilege in its 1994 decision in Bird v. W.e. W. ?243 The majority opinion in Bird plainly protects negligent and innocent defamation published incident to judicial proceedings. But does failure to indicate
specifically that knowing or reckless falsehoods are also protected
mean that the court is poised to exclude such falsehoods from the historic absolute judicial privilege? The First Amendment, after all, affords no protection for knowing or reckless falsehoods, so why would
a common law privilege protect what the First Amendment excepts?
The first amendment cases were not, of course, concerned with recognized common law privileges. Moreover, the New York Times cases
hold only that knowing or reckless falsehoods are not protected by the
Constitution; they did not hold that all knowing or reckless defamatory falsehoods must be actionable in all situations under each state's
common law. In sum, the New York Times cases do not address the
question of knowing or reckless falsehoods protected by an absolute
common law privilege.
243.
868 S.W.2d 767 (Tex. 1994).
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If a future defamation plaintiff relies on the uncertainty created
by Bird to assert that knowing or reckless falsehoods should be ex-
cepted from the absolute judicial privilege, the supreme court's response should carefully consider the traditional justification for the
absolute judicial privilege. Judicial falsehoods possess no intrinsic
value, whether knowing, reckless, negligent or innocent; and the absolute judicial privilege is not designed to protect falsehoods per se.
Rather, participants in judicial proceedings should not be deterred
from full disclosure by fear of later lawsuits based on alleged defamatory statements published incident to judicial proceedings. If the judicial privilege were relaxed to allow suit for knowing or reckless
falsehoods, this exception would invite suits by plaintiffs asserting that
the judicial participant published such falsehoods. Additionally, defending a lawsuit is both inconvenient and expensive, even when the
defendant is finally vindicated by a favorable judgment, a proposition
vividly demonstrated by the Bird case itself. Even the absolute privilege did not prevent litigation against a judicial participant in Bird,
and a decision by the Texas Supreme Court was ultimately required to
establish that an apparently negligent defendant was protected by the
judicial privilege. Any exception to the absolute judicial privilege limited to the aggravated culpability of knowing or reckless falsehoods
invites defamation suits against every judicial participant who publishes an allegedly defamatory falsehood by plaintiffs alleging-even if
finally unable to prove-that the challenged statement is within the
exception. Although the definition of "judicial participants" eligible
to claim the absolute privilege might be narrowed, the absolute judicial privilege for even knowing or reckless falsehoods should be retained to protect all persons who are properly classified as judicial
participants and to promote full disclosure by eliminating the risk of a
later defamation suit based on participation in judicial proceedings.
If Bird suggests that the Texas Supreme Court might in the future
except knowing or reckless falsehoods from the absolute common law
judicial privilege, the court has clearly held that only proof of knowing
or reckless falsehood is sufficient to defeat a defense based on a qualified common law privilege. As a result, falsehoods animated by ill will
or evil motive are now protected by the privilege in those cases in
which a knowing or reckless falsehood cannot be proven. The court .
first equated the malice sufficient to defeat a qualified privilege with
the first amendment actual malice of knowing or reckless falsehood in
its 1970 decision in Dun & Bradstreet, Inc. v. O'Nei[244 and reaffirmed
244. 456 S.W.2d 896 (Tex. 1970).
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this holding in two recent decisions, Hagler v. Proctor & Gamble Manufacturing CO.,245 and Randall's Food Markets, Inc. v. Johnson.2 46 In
Texas, ill will and evil motive are now irrelevant; only knowing or
reckless falsehoods are actionable when the defendant relies on either
the first amendment privilege or a qualified common law privilege.
While the First Amendment commands that New York Times
plaintiffs can recover only on proof of knowing or reckless falsehoods,
should an identical standard of culpability also be the sole basis for
recovery by a Texas plaintiff seeking to defeat a qualified common law
defensive privilege? To answer this question, the interests served by
the first amendment privilege and the qualified common law privilege
should be compared. Defamatory falsehoods have no intrinsic constitutional or social value, and New York Times affords constitutional
protection to some falsehoods only to promote expression concerning
public persons and public issues. To avoid an undue "chilling effect,"
the United States Supreme Court balanced competing interests and
immunized falsehoods published of these public persons unless they,
as plaintiffs, could prove knowing or reckless falsehoods.
However, New York Times did not complete the process of balancing reputational interests protected by the tort of defamation
against first amendment interests in free expression. In Gertz, the
Court held that the states were free to permit private person plaintiffs
to recover for actual injury on proof of ordinary negligence when the
defamatory falsehood relates to a matter of public concern. In Dun &
Bradstreet, the Court held that the First Amendment did not bar· a
private person plaintiff's recovery for both presumed compensatory
damages and punitive damages without proof of knowing or reckless
falsehood when the defamation relates to a matter of only private concern. A negligent falsehood, or perhaps even an innocent falsehood,
could be fully actionable under state defamation law when the plaintiff is a private person and the falsehood related to a matter of only
private concern. The plurality in Dun & Bradstreet observed that "a
number of state courts ... have recognized, that the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent."247
First amendment concerns are activated in defamation suits by
plaintiffs who are public persons, New York Times, and in defamation
suits by private persons defamed with respect to a matter of public
245. 884 S.W.2d 771 (Tex. 1994).
246. 891 S.W.2d 640 (Tex. 1995).
247. 472 U.S. at 749 (footnote omitted).
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concern, Gertz. These first amendment concerns are absent in Dun &
Bradstreet and are conspicuously absent in the Texas defamation cases
presenting a defense·based on·a qualified common law privilege. The
three Texas Supreme Court decisions holding that only proof-of knowing or reckless falsehood will defeat the qualified privilege-thus
eliminating consideration of the defendant's ill will or evil motiveeach presented a private person plaintiff seeking recovery for defamation relating to a matter of only private concern. This is the precise
situation presented to the United States Supreme Court in Dun &
Bradstreet, which held that a private person plaintiff's vindication of
injury to reputation for defamation in a matter of only private concern, without proof of knowing or reckless falsehood, prevailed over
the minimal first amendment interests in protecting such harmful
falsehoods.
It is true that when the Texas Supreme Court first held, in 1970,
that a private person plaintiff seeking to defeat a qualified common
law privilege with respect to a matter of only private concern must
prove the defendant's knowing or reckless falsehood, neither Gertz
nor Dun & Bradstreet had been decided by the United States Supreme
Court. But the court's most recent decisions affirming the. 1970 case
were decided in 1994 and 1995, and neither refers to the intervening
cases of Gertz, decided in 1974, and Dun & Bradstreet, decided in
1985. In Dun & Bradstreet, the United States Supreme Court held
that the First Amendment does not require private person-private
matter defamation plaintiffs to prove knowing or reckless falsehood to
recover substantial presumed and punitive damages under state defamation law, and what the First Amendment permits is not prohibited.
In the future, when a private person-private matter defamation
plaintiff seeks to overcome a qualified common law privilege, the
Texas Supreme Court should review its cases holding that only proof
of knowing or reckless falsehood is sufficient to defeat the privilege
and decide whether defamation actions not controlled by the First
Amendment should be treated in Texas as though they are. Defamatory falsehoods are harmful to the victim and possess no intrinsic
value as a form of expression. When the defamation plaintiff is not a
public person and the defamatory falsehood does not relate to a matter of public concern, first amendment interests in free expression are
nonexistent. A qualified common law privilege is lost if abused. Why
should a defendant enjoy the privilege when a plaintiff, unable to
prove a knowing or reckless falsehood, is nevertheless able to prove
that publication of an innocent or negligent falsehood was motivated
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primarily by ill will or personal animus toward the victim? Neither
the First Amendment nor public. policy requires that the defendant
escape liability when the qualified common law privilege is perverted
to shield falsehoods animated by ill will and spite.
The cases reviewed in this Article suggest that the Texas Supreme
Court might be disposed to hold, once and for all, that defamatory
falsehoods are actionable in tort only when the plaintiff proves the
defendant's knowledge of falsity or reckless disregard for truth. Innocent or negligent defamation could never be actionable, regardless of
common law precedent to the contrary. Confining actionable defamation to knowing or reckless falsehoods is presently the rule for public
person plaintiffs under New York Times. The same rule presently applies in Texas for private person-private matter plaintiffs required to
defeat a qualified common law privilege. But the Texas Supreme
Court has not overruled Foster v. Laredo Newspapers, Inc. ,248 which
held that a private person plaintiff could recover for negligent defama-.
tion on proof of actual injury. Nor has the court since 1964 had occasion to decide whether a private person plaintiff defamed with respect
to a matter of only private concern must prove knowing or reckless
falsehood in all cases in which no common law or statutory privilege is
available to the defendant.
The Texas Supreme Court will surely have future opportunities to
decide whether the tort of defamation should be confined in all cases
to only knowing or reckless falsehoods, and how the court decides this
question will affect all Texans who value their reputations.
248.
541 S.W.2d 809, 819 (Tex. 1976).
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