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‘Clear and convincing’ evidence not needed to survive dismissal

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From the Summer 2000 issue of The News Media & The Law, page 34.

From the Summer 2000 issue of The News Media & The Law, page 34.

Rejecting the heightened standard used by the U.S. Supreme Court and 37 states, the Texas Supreme Court in May upheld its rule that plaintiffs suing media defendants for libel must only plead sufficient facts to raise a factual issue for a jury in order to survive a pre-trial motion for summary judgment.

Although the decision puts the burden of proof at the pre-trial stage on journalists, the court upheld the dismissal of the case that prompted the review, finding that the HBO cable channel had negated the allegations of actual malice and a judge who sued over a documentary did not counter with sufficient evidence.


The HBO cable network aired a documentary called Women on Trial in 1992. The hour-long program discussed four southeast Texas cases in which family courts granted custody of a child to a father after the mother accused the father of child abuse.

Charles Huckabee, who was the presiding judge of Houston District Court, presided over two of the cases featured. He sued HBO, claiming the broadcast defamed him by portraying him as a judge who knowingly disregarded children’s best interests.

HBO moved for pre-trial dismissal, arguing that, among other things, there was no proof of actual malice — knowledge of falsity or reckless disregard of the truth — and therefore no grounds for a defamation claim. Both parties acknowledged that a judge would be treated as a public official and required to prove actual malice. The trial court denied the motion.

A state court of appeals reversed and ordered the case dismissed, finding that HBO had demonstrated a lack of actual malice. Huckabee appealed to the Texas Supreme Court.

On appeal, Huckabee argued that he had shown specific ways that HBO had acted with reckless disregard of the truth. He specifically alleged that HBO sought to portray him in an unflattering light, pointing to a proposal from the show’s producers to HBO labeling him a “corrupt judge” and an HBO executive’s decision to make the documentary focus on the women’s side of divorce and custody cases.

Huckabee also alleged that the editorial choices made by the producers were made purposely to create a false impression, and to suggest that there was no evidence in the trial that supported his decision to award custody to the father.

HBO countered that Huckabee’s evidence did not prove that the statements made about him were false, much less that they were made with reckless disregard for the truth. The judge’s complaint is more like a claim for false light invasion of privacy, which is not recognized in Texas, HBO argued.

HBO and a number of media organizations that joined the case as friends of the court, including The Reporters Committee for Freedom of the Press, also argued that the Texas Supreme Court should rule that a libel plaintiff’s claim should be dismissed unless he can demonstrate “clear and convincing” proof of actual malice. Such a standard is required to prevail at trial, the media organizations argued, and therefore should be required at the summary judgment stage. The groups pointed out that the heightened standard has been adopted by the U.S. Supreme Court and 37 states.

Without the heightened standard, Huckabee would only be required to produce controverting evidence that would “raise a fact issue” for a jury, according to the court’s standard.

In May 2000, the Texas Supreme Court upheld the dismissal of Huckabee’s claim against HBO.

The court found that the cable channel properly demonstrated through affidavits that producers believed the information in the show was true, and provided a plausible basis for that belief. Once such a showing is made, the burden shifts to the plaintiff to show that there is a genuine factual dispute over the evidence of actual malice, the court held, and Huckabee failed to make such a showing.

Huckabee’s evidence of editorial judgments and omissions were not severe enough to demonstrate that the producers knew their story would create a false impression, the court held. Even those statements that might suggest “ill-will” toward the judge, such as the note that he is “corrupt,” do not demonstrate that any of the reported facts were known to be false, according to the court.

Although it upheld the dismissal of the claim, the court specifically declined to adopt the higher standard of requiring a public figure libel plaintiff to produce “clear and convincing evidence” of actual malice at the summary judgment stage. The court found that judges cannot determine what “clear and convincing evidence” is in a consistent manner that does not inappropriately meddle with what is properly the jury’s task — weighing the evidence. Because the higher standard is still required to prevail, judges are required to ensure that the standard is met after a jury verdict, when all evidence and testimony has been presented and it is a simpler matter to determine if the evidence is clear and convincing. This requirement is sufficient to protect media defendants’ First Amendment rights, the court found. The court also found that the U.S. Supreme Court’s standard is a matter of federal court procedure, not a constitutional requirement.

Justice Nathan Hecht, dissenting, said that he would require the higher “clear and convincing” proof standard. He suggested that the majority actually used the heightened standard, because Huckabee did produce some evidence of recklessness.

“I do not see how the Court can conclude that Judge Huckabee has failed to produce more than a scintilla of evidence that the defendant acted with actual malice,” Hecht said.

Hecht pointed out that only two states, Texas and Alaska, have found the standard difficult enough to reject it.

Hecht suggested that the high court may not trust trial judges to apply the law, or that “the Court believes that it is appropriate to put defendants in defamation cases to the burden and expense of trial even though the public-figure plaintiff cannot win.”

However, having argued that a different standard should have been used, Hecht said he would have sent the case back to the trial court “to give the plaintiff a fair opportunity to produce clear and convincing evidence of actual malice.”