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In one of the most interesting First Amendment cases the Texas Supreme Court has handled in years, the high court unanimously ruled that political satire is a protected form of free speech, even if it’s not clearly labeled or attributes false quotes to real public officials. The Sept. 3 decision in New Times Inc. d/b/a Dallas Observer, et al. v. Bruce Isaacks and Darlene Whitten puts an end to a libel suit filed five years ago by two Denton County elected officials against the Dallas Observer, a weekly alternative newspaper. New Times owns the Dallas Observer. Isaacks and Whitten were enraged after the newspaper printed a satirical article in 1999 titled “Stop the Madness” about the arrest of a 6-year-old girl for a book report she wrote. That article featured Isaacks, Denton County’s district attorney, and Whitten, Denton County Court-at-Law No. 1 judge, and attributed false quotes to both, according to lawyers for the newspaper. The Dallas Observer maintains the article was intended to skewer Isaacks and Whitten over an actual October 1999 incident in which Whitten ordered the detention of a 13-year-old who allegedly wrote a violent-toned essay. Isaacks and Whitten argued in their briefs to the court that the article did damage to their reputations because many readers believed the article was true. The court applied a “reasonable person” test to the article to determine if the article was indeed satire. Writing for the court, Justice Wallace Jefferson notes that there were numerous clues that the article was a joke, including outrageous quotes, an unorthodox headline and photo, and reference to a fictional freedom-opposing religious group called God-fearing Opponents of Freedom (GOOF). “[Isaacks and Whitten] complain that only readers who read the entire article would ‘get the joke.’” As they argue, “many readers will read the first few paragraphs of an article and form an opinion,” Jefferson writes. “But we 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; that person is not an objectively reasonable reader.” The court also tackled whether the Dallas Observer wrote the story with “actual malice,” noting that public figures cannot recover for defamatory statements made about them without proof of actual malice – meaning that the defendant made a statement with knowledge that it was false or with reckless disregard of whether it was true. Because the quotes were admittedly false, Isaacks and Whitten argued in their briefs that they automatically established actual malice. But the court disagreed with that reasoning, saying that the spirit of the First Amendment protects speech that ridicules public officials. “Equating intent to ridicule with actual malice would curtail the ‘uninhibited, robust, and wide-open’ public debate that the actual malice standard was intended to foster, particularly if that debate was expressed in the form of satire or parody,” Jefferson writes. “Indeed, the very purpose of satire is ridicule, but this does not make it a sort of second-class speech under the First Amendment.” POLITICAL CRITICISM Jim Hemphill, a partner in Graves Dougherty Hearon & Moody who represents the Dallas Observer, said the high court showed a deep knowledge of the First Amendment and an interest in protecting its spirit in their ruling. “I think Justice Jefferson really went out and looked carefully at how these similar constitutional issues were handled by other courts and found the common thread between them to reach the right conclusion,” Hemphill said. And the high court saw the article for what it was, Hemphill said. “This was opinion. It was political criticism that was critical of the actions of two elected public officials,” Hemphill said. “It wasn’t trying to communicate facts. It was trying to convey the opinion that the Observer disagreed with the actions that the public officials took. “ Mike Whitten, a partner in Whitten Law Firm who represented Isaacks and his wife Darlene Whitten in the case, said the opinion provides no guidance to public officials who are harmed by satire. “There has to be some limits somewhere,” Whitten said. “After reading this opinion, I’m at a loss at how to show what we need to show to bring an action.” “It’s frustrating when you spend so much time litigating it that you don’t know any more about it than when you started,” said Whitten, who’s handled the case for five years. Although the high court ruling reverses a lower court opinion that had denied the Dallas Observer’s summary judgment motion, Whitten said he likely will file a motion for rehearing with the high court. And if that fails, he said he’ll take the case to the U.S. Supreme Court. “We’ve come this far,” Whitten said. “We might as well go there.” This article originally appeared in Texas Lawyer , a publication of American Lawyer Media.

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