From the Fall 2002 issue of The News Media & The Law, page 24.
The Texas Supreme Court held on Aug. 29 that talk show host Joe Ed Bunton acted with actual malice when he accused a judge of corruption on the air, marking the first time the court had affirmed a defamation case against a public figure.
The decision worries media organizations.
In a friend-of-the-court brief filed Oct. 14 in support of Bunton’s request for the court to reconsider its own decision, ten media organizations articulated their concern that Texas courts may have changed the state’s libel law in a manner that could have serious consequences for newsgatherers.
The brief was submitted by three Texas press associations, The Reporters Committee for Freedom of the Press and several news organizations.
The court held in August that Bunton, the host of a talk show, “Q & A,” which appeared on public access television in 1995 and 1996, had carried out a “personal vendetta” against Judge Bascom Bentley III, a district court judge in Palestine, Texas. The court approved the jury’s finding that Bunton acted with actual malice when he made public accusations of corruption against Bentley.
The media groups’ brief argued that “the consequences to freedom of speech and expression and the direct impact on the media will be severe” if the court’s previous decision is allowed to stand.
A plaintiff must prove actual malice in order to win a libel suit against a public figure, such as a judge. “Actual malice” is defined as knowledge of, or reckless disregard for, the falsity of a statement. Actual malice must be proven by clear and convincing evidence.
The media groups argued that there was no clear and convincing evidence of actual malice by Bunton, and that the Texas Supreme Court’s August opinion was based on a misinterpretation of the legal standard for actual malice. The Texas court not only misapplied settled Texas law, they argued, but also was inconsistent with the U.S. Supreme Court’s interpretation of the federal Constitution.
If this misinterpretation of law is allowed to stand, the media organizations argued, the case will affect the disposition of future defamation claims against public figures in Texas.
The court’s August opinion recounted that Bunton reported numerous times on his show that Bentley was “corrupt” and that Bunton invited TV viewers to share examples of the judge’s corruption on the air. Bunton also called the judge lazy and incompetent.
Evidence in the trial, which took place in 1997, showed that Bunton admitted he could not prove his theory about Bentley’s corruption and that he knew the judge denied the allegations made against him. Bunton “expressed doubt to a friend that there was any basis for the charges he was making” and “deliberately ignored people who could have answered all of his questions,” according to the court.
The media groups argued that the court incorrectly focused on Bunton’s actions and alleged ill will toward Bentley, rather than on Bunton’s attitude towards the truth of what he reported. The only question the court should ask, they said, is whether Bunton knew or should have known that what he said on television was false. Any other analysis of a libel case against a public figure violates the First Amendment.
The media organizations also argued that the court’s analysis with respect to punitive damages was wrong, and the court misapplied Texas statutory law in allowing the award to stand.
After his trial, Bunton was slapped with an $8 million award, $1 million of which was for punitive damages.
Whatever the court decides as a result of the current appeal will guide Texas courts in all future libel cases against public figures. The decision will particularly affect the media’s ability to quickly dismiss defamation suits brought by public figures.
Charles A. Babcock, the Dallas attorney representing the media groups that filed the friend-of-the-court brief, said an affirmance of the court’s August decision relating to actual malice would “make it virtually impossible” for a media party to get summary judgment — or early dismissal — of a defamation case involving a public figure.
The court’s August decision was not unanimous. Only five out of eight Justices participating in the decision agreed with the finding that Bunton acted with actual malice. Bunton and the media organizations hope to convince at least two more judges that the standard used in the court’s previous analysis was wrong.
They hope the court will correct the decision, so that Texas law will remain in line with cases from the Supreme Court that provide serious protection for the media’s First Amendment right to speak out about public figures. (Bentley v. Bunton) — Wendy Tannenbaum