Accurate report on third-party allegations is not defamatory

A Texas appellate court last week affirmed the dismissal of an Austin neurosurgeon’s defamation suit against a local television station, thereby recognizing that accurate and fair reports of allegations against the subject of a broadcast are protected.

The court ruled in Neely v. Wilson that media defendants — in this case CBS affiliate KEYE, its owner Viacom and investigative reporter Nanci Wilson — are protected when they report third-party allegations against individuals, regardless of whether the underlying allegation itself is defamatory and false. As long as those allegations are fairly and accurately reported, the statements are substantially true and, thus, cannot be the basis of a defamation claim, the Texas Court of Appeals, Third District, held.

“[W]hen a media defendant reports on the existence of third-party allegations . . . the focus of the . . . inquiry is on whether the allegations were in fact made and accurately reported, regardless of the truth of the allegations themselves,” according to the court’s opinion.

“In effect, we assume that the ordinary viewer perceives ‘allegations presented as allegations’ to assert merely the fact that the allegations had been made rather than asserting or vouching for any facts referenced in the allegations.”

The plaintiff, Dr. Byron D. Neely, tried to convince the court that the defendants had to prove the actual allegations two former patients made about him in the broadcast were true. Both interviewees had previously sued the physician.

One of the interviewees was a former collegiate and professional football player who is now physically disabled and unable to walk unassisted, allegedly as a result of more than a dozen brain surgeries. He claimed in his suit that, during Neely’s treatment of him, the doctor was impaired by dependency on steroid and opiate drugs, and suffered hand tremors attributable to the medications he was allegedly taking.

The second plaintiff alleged in her suit that Neely committed medical malpractice when, after performing surgery on her ex-husband to remove a brain tumor, the physician informed the man he was suffering from a malignant melanoma that had spread to numerous sites in his brain and “would probably have a short time to live,” according to the opinion. Several days later, the man committed suicide by jumping from an interstate overpass. Contrary to Neely’s diagnosis, the autopsy revealed no metastatic cancer in the man’s brain after the surgery.

In rejecting Neely’s argument that defendants must prove the truth of these allegations, the court relied on the 1990 Texas Supreme Court case McIlvain v. Jacobs, in which the court compared the allegedly defamatory broadcast with its subject: an internal investigation into allegations that some Houston municipal employees were misusing public resources for personal ends. Because the broadcast was a “substantially correct, accurate, and not misleading” report on the investigation, the defendant had established the substantial truth of the broadcast and did not have to prove the truth of the actual allegations, the high court held.

“There is a growing number of cases in Texas courts recognizing [accurately reported third-party allegations] as a kind of truth,” said Tom Leatherbury, the Dallas media attorney who represented the defendants in this case.