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Click here for the full text of this decision FACTS: The Texas Supreme Court provided the facts as follows. On June 11, 2000, the Hearst Corp. published “Justice Under Fire” in The Houston Chronicle. Written by Evan Moore, the article contained pointed criticisms of the Smith County criminal justice system and included three companion articles examining specific cases. With the subheading “”Win at all costs’ is Smith County’s rule, critics claim,” the lead article reported that Smith County “is noted for its own brand of justice,” which was “driven by aggressive prosecutors who achieve some of the state’s longest sentences.” The article stated, “Critics say Smith County’s justice system is tainted and inequitable.” It also declared that Smith County prosecutors “have been accused of serious infractions” including “suppressing evidence, encouraging perjury and practicing selective prosecution.” Claiming the article was false and malicious, three Smith County prosecutors named in the article, District Attorney Jack Skeen and two of his assistants, David Dobbs and Alicia Cashell, filed a defamation suit against Hearst and Moore. The trial court denied Hearst and Moore’s motion for summary judgment. On interlocutory appeal, the court of appeals affirmed the trial court’s ruling. HOLDING: Reversed and rendered in favor of Hearst and Moore. To recover for defamation, the public-figure plaintiffs must have proved that Hearst and Moore published a false and defamatory statement with actual malice. See Huckabee v. Time Warner Entm’t Co. LP, 19 S.W.3d 413, 420 (Tex. 2000). The plaintiff bears the burden of proving falsity in a public-figure defamation case; in such a case, the defendant does not have the burden of proving substantial truth as an affirmative defense. Bentley v. Bunton, 94 S.W.3d 561, 586-87 (Tex. 2002). The plaintiffs could prevail here, found the court, only if some evidence existed that Hearst and Moore published the article with actual malice. To establish actual malice, the plaintiffs must have proved Hearst and Moore published the article with either knowledge of the falsity or reckless disregard for the truth. Reckless disregard is a subjective standard, requiring evidence that Hearst and Moore had entertained serious doubts as to the truth of the article at the time it was published. Texas law entitles a libel defendant to summary judgment if the defendant can negate actual malice as a matter of law. Hearst and Moore supported their motion for summary judgment with numerous exhibits, including Moore’s affidavit, which stated he believed the article was true and accurate based on his extensive research. Having negated actual malice, the burden shifted to the plaintiffs to raise a fact issue. The court dealt with the issue of knowledge of falsity first, saying the plaintiffs contended Moore knew the article was false, because the 10 cases discussed in the article were a relatively insignificant sample from which to conclude that the Smith County DA’s office routinely engaged in unethical practices to win convictions. At Moore’s deposition, the plaintiffs’ attorney pointed out that these 10 cases amounted to only .04% of the total indictments handled during Skeen’s service. Moore admitted that he had done no statistical analysis but had only focused on the problem cases he had discovered. The fact that Moore had not reviewed every indictment during Skeen’s service or discussed a larger number of problem cases is not evidence that he knew the article contained false statements, said the court. The court next turned to the issue of reckless disregard for the truth, saying the plaintiffs claimed Hearst and Moore purposefully avoided the truth, relied on dubious information from biased sources, deviated from professional standards of care, and were motivated to fabricate. The court addressed each claim in turn. The court examined the plaintiffs’ purposeful- avoidance claim first, quoting Bentley: “A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is.” In Bentley, a talk show host was sued for libel after repeatedly accusing a judge of being corrupt. The court said that, in Bentley, there was no evidence that anyone concurred in the host’s accusations. Further, the host deliberately ignored those who could refute the accusations: for example, accusing the judge of improperly delaying a criminal trial without contacting any attorneys involved. Similarly, in Harte-Hanks Communications Inc. v. Connaughton, a 1989 U.S. Supreme Court case, the Texas Supreme Court said a newspaper deliberately avoided verifying false allegations that it printed about a judicial candidate. The Texas Supreme Court read Harte-Hanks as having found that the newspaper had purposefully avoided discovering facts that might show the falsity of the allegations, by ignoring the two sources that could objectively verify allegations it printed. The Texas Supreme Court went on to contrast those facts with its holding in Huckabee, where it found that the purposeful-avoidance theory did not apply because “no source could have easily proved or disproved the documentary’s allegations.” In Huckabee, a judge sued after a documentary criticized the judge’s order granting an allegedly abusive father custody of a child. The judge argued the filmmakers had purposefully avoided discovering the truth. But the Texas Supreme Court noted that the filmmakers’ extensive research, which involved interviewing several people on both sides of the story, including the judge, and reading transcripts of the case, precluded a finding of purposeful avoidance. “Although the filmmakers did not interview [the father or his lawyers], they were not required to continue their research until they could find one more person who agreed with [the judge's] order.” Like the filmmakers’ research in Huckabee, the Texas Supreme Court said Moore’s five months of research involved interviewing parties on both sides of the issue, including the plaintiffs, and reviewing the court records of the cases discussed in the article. Furthermore, no source existed that could have easily disproved the criticisms of the Smith County DA’s office included in the article. The evidence simply did not support a purposeful-avoidance theory, the court found. Regarding the plaintiffs’ assertion that Moore and Hearst relied on dubious information from biased sources, the Texas Supreme Court again quoted Bentley: “An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice.” In Harte-Hanks, despite knowing the judicial candidate had turned a tape concerning bribery over to the police, the newspaper still published the improbable assertion that he intended to blackmail his opponent with the tape. Moreover, the uncorroborated allegations were doubtful because every other witness the newspaper interviewed denied the source’s version of the events. Additionally, the source’s hesitant demeanor and inaudible responses in her taped interview with the newspaper raised “obvious doubts about her veracity.” With her as the only source of the dubious allegations, the evidence showed the newspaper had recklessly disregarded the truth in publishing the article, according to the Texas Supreme Court. But in the current case, Moore had many sources corroborating the criticisms of the Smith County DA’s office. Moore testified that he spoke to more than 20 attorneys who told him that the Smith County D.A.’s office was too aggressive, was too closely aligned with law enforcement, was overly influenced by prominence of the victim or accused, had sentences that were harsh or excessive as compared to other jurisdictions, and had suppressed evidence or encouraged false testimony to win convictions. Although most conditioned their responses on anonymity, several attorneys, including perhaps most significantly a former Smith County DA, allowed their names to appear in the article. The criticisms were not inherently improbable because Moore had reviewed multiple statements in court-filed documents alleging prosecutorial misconduct. Such documents ranged from a Court of Criminal Appeals opinion, to a writ of habeas corpus petition, to a deposition, to a motion for new trial. Moore’s article was based on many sources that corroborated the criticisms, which his research showed were not inherently improbable. Therefore, no fact issue existed as to whether Moore had relied on obviously doubtful sources of information for his article. Regarding the plaintiffs’ assertion that Hearst and Moore deviated from professional standards of care and were motivated to fabricate, the court again quoted Bentley: “A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are factors to be considered.” In this case, the court said the plaintiffs presented an expert who testified about the professional standard for investigative reporting and concluded that the article was biased and failed to impartially give a balanced account of the information it discussed. Assuming this expert testimony should be considered, the court noted that evidence that the article was written “from a particular point of view, even when [the article is] hard-hitting or sensationalistic, is no evidence of actual malice.” Huckabee, 19 S.W.3d at 425. To establish motivation for recklessly disregarding the truth, the plaintiffs presented evidence that Hearst and Moore ignored the plaintiffs’ letter questioning the truth of the article, because they received the letter two days before the article’s publication deadline. This, however, was no evidence of actual malice, the court found. First, Hearst and Moore incorporated a portion of the letter into the article in the form of a quote by the plaintiffs. Second, the Huckabee court noted that “[t]he mere fact that a defamation defendant knows that a public figure has denied harmful allegations or offered an alternative explanation of events is not evidence that the defendant doubted the allegations.” Third, without more, mere evidence that a newspaper was motivated to meet a publication deadline is no evidence of actual malice. Viewing the evidence in its entirety, the court found no fact issue is raised as to whether the article was published with actual malice. Accordingly, without hearing argument, the court granted the petition for review, reversed the court of appeals’ judgment, and rendered summary judgment in favor of Hearst and Moore. OPINION: Per curiam.

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