Factual malice
Texas high court finds strong protection for satire, parody
From the Fall 2004 issue of The News Media & The Law, page 20.
By Grant Penrod
Political commentary can be reasoned and analytical, but it can also be sarcastic, boisterous and downright mean-spirited.
“Satire is particularly relevant to political debate because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy,” Judge J. Harvie Wilkinson III of the U.S. Court of Appeals in Richmond (4th Cir.) wrote in his 1986 dissent in Falwell v. Flynt. “Political satire and parody aim to distress. This genre of commentary depends upon distortion and discomfiture for its effect.”
Wilkinson’s dissent was vindicated two years later when the U.S. Supreme Court reversed the Fourth Circuit in the renamed Hustler Magazine v. Falwell.
Now, the Supreme Court of Texas, in New Times v. Isaacks, has confirmed strong protections for journalists using these irreverent yet important forms of speech. The court ruled that satire and parody should not be interpreted literally, but must be viewed in context and as they would be interpreted by an objectively reasonable person.
First Amendment scholar Robert M. O’Neil said the ruling is an important reiteration of free speech principles.
“In a world in which humor is in short supply . . . it is useful every so often to step back and say satire, caricature, parody and so on should be enjoyed,” said O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression and professor of law at the University of Virginia.
The Texas high court’s decision is not surprising, O’Neil said, noting that satire enjoys more special protections in the United States than it does in other countries — even in other democracies like Australia and England.
The New Times case began Nov. 11, 1999, when the weekly alternative newspaper the Dallas Observer ran a story, headlined “Stop the madness,” about a fictional 6-year-old’s arrest and 10-day jail sentence resulting from a book report on Maurice Sendak’s Where the Wild Things Are. The 1963 illustrated children’s book depicts a boy named Max who dresses up like a wolf and imagines going on a wild rumpus with monsters after being sent to his room by his mother. In “Stop the madness,” the girl is “arrested” because the book report is deemed “too violent” and to contain “terroristic threats,” Observer reporter Rose Farley wrote.
Although the story ran in the “news” section of the paper, it was almost entirely fabricated.
The story parodied and referenced the real-life arrest and detention of Christopher Beamon, a 13-year-old Ponder, Texas, student, for making “terroristic threats” in a 1999 Halloween school assignment. Beamon wrote a story detailing the shooting deaths of a teacher and two classmates, for which he received a grade of 100 and extra credit for reading it aloud.
The following day, parents of the students named in the story complained, and school officials summoned sheriff’s deputies to remove Beamon from school. Denton County Juvenile Court Judge Darlene Whitten ordered Beamon detained for 10 days, but later approved his release after five days. Denton County District Attorney Bruce Isaacks decided not to prosecute the case, telling The Dallas Morning News: “It looks like to me the child was doing what the teacher told him to do, which was write a scary story. But this child does appear to be a persistent discipline problem for this school, and the administrators were legitimately concerned.”
Beamon’s arrest garnered national and international attention, and earned the Ponder Independent School District one of 12 annual “Muzzle Awards” from the Thomas Jefferson Center.
It also sparked Farley to poke fun at the situation through satire. The arrest of the 6-year-old in “Stop the madness” mimics Beamon’s arrest. The little girl is pulled from school in handcuffs because school officials are concerned with “cannibalism, fanaticism, and disorderly conduct” in her book report, particularly a passage from Where the Wild Things Are which reads:
. . . his mother called him ‘WILD THING!’
and Max said ‘I’LL EAT YOU UP!’
so he was sent to bed without eating anything.
The handcuffs are ordered because of the little girl’s disciplinary record, which included spraying a boy with pineapple juice.
Whitten is fictitiously quoted as saying, “Any implication of violence in a school situation, even if it was just contained in a first-grader’s book report, is reason enough for panic and overreaction.” Whitten sentences the little girl to10 days in a detention center, saying, “It’s time for you to grow up, young lady, and it’s time for us to stop treating kids like children.”
Isaacks is fictitiously quoted as saying, “We’ve considered having her certified to stand trial as an adult, but even in Texas there are some limits.”
Other fabricated quotes include a bailiff describing the difficulty of finding child-sized handcuffs, a school official saying, “Frankly, these kids scare the crap out of me,” and an ACLU spokeswoman who says “Jesus H. Christ, are you people nuts? She’s just a kid.”
Then-Gov. George W. Bush is quoted from the presidential campaign trail as saying: “This book clearly has deviant, violent, sexual overtones. Parents must understand that zero tolerance means just that. We won’t tolerate anything.”
The story closes with the 6-year-old saying: “It’s bad enough people think like Salinger and Twain are dangerous, but Sendak? Give me a break for Christ’s sake. Excuse my French.”
The only actual facts in the entire story are those relating to Beamon’s arrest.
Whitten and Isaacks sued New Times Inc., publisher of the Dallas Observer, Farley, and two editors, Julie Lyons and Patrick Williams, for libel. The trial court refused to dismiss the suit in December 2000, finding that a reasonable reader might mistake the article as stating actual facts about the plaintiffs. The Court of Appeals of Texas affirmed in November 2002 and the defendants appealed to the Supreme Court of Texas.
The Association of American Publishers, joined by 15 other media and First Amendment organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in the case.
On Sept. 3, 2004, the Supreme Court of Texas reversed, unanimously finding that the story was protected by the First Amendment.
The court found that a reasonable reader would not mistake the story as describing actual facts, even if some readers did not get the joke. “Intelligent, well-read people act unreasonably from time to time, whereas the hypothetical reasonable reader, for purposes of defamation law, does not,” wrote Justice Wallace B. Jefferson. The court noted the numerous clues scattered throughout the story, and the Observer‘s history of publishing opinionated and satirical news stories.
The court also ruled that allegedly libelous statements in the story could not be considered in isolation and must be read in the context of the story as a whole.
“[W]e cannot impose civil liability based on the subjective interpretation of a reader who has formed an opinion about the article’s veracity after reading a sentence or two out of context,” Jefferson wrote. “[T]hat person is not an objectively reasonable reader.”
This portion of the opinion has important implications for nonsatirical reporting because it prevents a single statement from being found libelous outside of the larger context of the article in which it appears, said James A. Hemphill, attorney for the Observer.
Finally, the court ruled that even if a reasonable reader would believe the story contained actual facts, the plaintiffs were public figures and could not win unless they proved the defendants published the story with “actual malice.”
The U.S. Supreme Court created the actual malice standard in 1964 in New York Times v. Sullivan. In order to recover for libel, a public figure must prove that the defendant made a statement with knowl- edge that it was false or with reckless disregard for whether it was true or not.
The problem with applying this standard in the context of satire is that a satirist knows and intends that he or she is making false statements of fact. It is the blurring of the line between the farcical and the factual that makes satire an effective form of criticism.
The U.S. Supreme Court addressed satire of a public figure in Hustler Magazine v. Falwell, but that case addressed a claim of intentional infliction of emotional distress, not libel. In Hustler, Rev. Jerry Falwell sued Hustler Magazine Publisher Larry Flynt for intentional infliction of emotional distress and libel for publishing an “ad parody,” which claimed that Falwell preached while drunk and had sex with his own mother in an outhouse.
The jury ruled against Falwell on the libel claim because the parody could not reasonably be interpreted as stating actual facts, but ruled for him on the emotional distress claim. Flynt appealed, and the Supreme Court unanimously reversed the emotional distress award, holding that Falwell could not avoid having to prove actual malice by suing for emotional distress.
Borrowing from Hustler, the Supreme Court of Texas ruled in New Times that the U.S. Supreme Court implicitly rejected a literal application of the actual malice test in the case of satire or parody. Instead, the Texas court ruled, a court should ask “did the publisher either know or have reckless disregard for whether the article could reasonably be interpreted as stating actual facts?”
Whitten and Isaacks have petitioned the court for more time to file for rehearing, but Hemphill believes such a rehearing is unlikely given the court’s unanimous opinion. Review by the U.S. Supreme Court is also possible, but both Hemphill and O’Neil believe it is unlikely that the high court would accept the case.