Psychologist loses libel suit over HBO documentary

TEXAS–A court-appointed psychologist became a public official for purposes of a defamation suit by virtue of the court orders of appointment, regardless of whether he held a government office or was paid by the government, a state court of appeals in Houston held in early October.

As a public official, the psychologist could not recover damages based on an HBO documentary without proving that the allegedly defamatory statements were made with actual malice — knowledge that the statements were false or reckless disregard for whether the statements were true.

Kit Harrison was the court-appointed psychologist in a child custody case that was featured in a 1992 HBO documentary entitled “Women on Trial.” The documentary carried the theme: “When a woman dares to fight for the safety of her child, she is in danger of having that child taken away.”

After HBO aired the documentary, Harrison sued HBO in state court in Houston. He alleged the film was defamatory because it unfairly and falsely criticized his handling of a featured case in which a mother, who had accused her ex-husband of abusing their son, had lost custody and been denied contact with the child for several years.

The court dismissed as unpersuasive Harrison’s arguments that he was not a public official because he did not hold a government office and did not get paid by the government. The court “found it conceivable that an individual holding no formal public position, and standing in no employment or even contractual relationship with the government, nevertheless may participate in some government enterprise to such an extent” as to be classified as a public official.

As a court-appointed psychologist, Harrison’s job was to evaluate the mental health of the parents and the child involved in the custody case. The court took special notice of the fact that the judge who made the appointment specifically conferred upon Harrison the power to determine the mother’s visitation rights.

Harrison, the court concluded, “for all intents and purposes, was the judge, with the authority” to determine parental rights. “Courts in this country have recognized,” the court continued, “and we agree, that the exercise of sovereign power is a fundamental attribute of public office.”

After determining that Harrison was a public official, the court assessed the evidence and ascertained that there was no actual malice on the part of the makers of the documentary. The court specifically found that the evidence showed the documentary merely reflected editorial choices, a difference of opinion, or at worst, a lack of investigative initiative. The court referred to the documentary as a “he said, she said” situation in which there was no evidence of known falsehoods or reckless disregard for the truth. (HBO v. Harrison; Media Counsel: Peter Kennedy, Austin)