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Practically since Gutenberg invented the printing press in the mid-15th century, newspapers have been satirizing the actions of politicians. Partly to protect the media’s ability to criticize freely its nation’s leaders, the U.S. Congress saw fit to make the right of free speech the First Amendment to the Constitution in 1791. But since then, there hasn’t been a wealth of case law dictating how far the media can go in cutting elected officials with the knife of satire. But a libel case filed by a Denton County, Texas, juvenile court judge and the county’s district attorney against the Dallas Observer, an alternative weekly newspaper, may soon get to the heart of that issue. On May 18, Judge Bob McCoy of Tarrant County, Texas’ 48th District Court gave the green light to Isaacks & Whitten v. New Times Inc., et al. by denying a summary judgment motion filed by the Observer. The Observer plans to appeal. But absent an appellate reversal of McCoy’s decision, the stage is set for a libel trial the likes of which has never been seen in Texas. The press is given broad protections in its commentary about public officials. Many libel suits filed by public officials never make it to trial because plaintiffs have a hard time proving the media intended “actual malice” in their publications or broadcasts. Other cases are dismissed because the offending articles are substantially true and are not found to be defamatory on summary judgment review. In fact, the Observer won a summary judgment last week from Dallas’ 5th Court of Appeals in Wheeler, et al. v. New Times Inc., et al. that dismissed a suit brought by a landlord who the newspaper — in a 1995 news article — alleged rented substandard housing to minorities. The appellate court found that the news article did not defame the landlord. But Isaacks & Whitten has a different twist from most libel suits. It involves an admittedly false article the defendants say was never meant to be taken seriously. In a Nov. 11, 1999, article titled “Stop the Madness,” the Observer attributed fictional quotes to Judge Darlene Whitten and DA Bruce Isaacks. The article was not labeled “satire” or “parody” and actually ran under the heading “news.” Whitten and Isaaks subsequently sued the Observer and its parent company, New Times Inc., alleging the newspaper libeled them and harmed their reputations. The Observer countered that the story was obviously a satire and there’s no way the plaintiffs can show the article was written with malicious intent. In December 2000, Judge McCoy ruled that there is a factual question as to whether a reasonable reader would believe the article was satire. And this month, McCoy found there is also a factual question as to whether the Dallas Observer intended that readers believe the article was factual — essentially whether the paper acted with “actual malice.” If the plaintiffs can’t prove the newspaper meant to harm the public officials by publishing the article, they have no case, the Observer‘s lawyer claims. “I think the plaintiff agrees with us that the key legal issue is whether a reasonable reader would believe this is parody or satire and what it’s going to take to prove actual malice,” says Jim Hemphill, a partner in Austin’s George & Donaldson who represents the Dallas Observer. “And there is nothing on the books in Texas that specifically says what the standard for actual malice is when dealing with a fictional satire or parody of public officials.” Mike Whitten, a partner in Denton, Texas’ Griffin, Whitten, Jones & Reib who represents the plaintiffs, agrees. Whitten — who is Judge Whitten’s husband — alleges the Observer went too far by fashioning a false story that defamed his clients. And Whitten believes he’s got more evidence to prove actual malice than most libel plaintiffs do. In the seminal libel ruling New York Times v. Sullivan (1964), the U.S. Supreme Court found that to establish “actual malice” public officials must prove that a publication knew its article was false or published the story with reckless disregard for whether it was true or false. The fact the Observer acknowledges that the article was fictional makes the plaintiffs’ case strong, Whitten says. “It [the fictional article] was published under a heading of news and it was indexed as news. And they admitted that,” Whitten says. “There is some good stuff in here for us in terms of the facts. But the ultimate question is what does this add up to under the law? We’re going to make law on this, good or bad.” CROSSING THE LINE? According to depositions in the case, the genesis of the article was an actual October 1999 incident in which Judge Whitten ordered the detention of a 13-year-old who allegedly wrote a violent essay and turned it in at school. The Dallas Observer article wove an outrageous tale around that incident, reporting a second arrest of a 6-year-old girl for writing a book report on Maurice Sendak’s classic children’s book “Where the Wild Things Are.” The fictional article attributed quotes such as “It’s time for us to stop treating kids like children” to Whitten and “We’ve considered having her certified as an adult, but even in Texas there are some limits” to Isaacks. In depositions, Mike Whitten asked Observer staff writer Rose Farley about her intentions in writing the article. “It was meant to hold these public officials up to ridicule and to harm them because of what you perceived to be improper conduct on their part in the [13-year-old's] case; isn’t that true?” Whitten asked. “That is not correct. It was not meant to harm them,” Farley answered. “But it was meant to hold them up to ridicule for their conduct in the [13-year-old's] case?” Whitten asked. “Yes,” Farley replied. And that’s where the plaintiffs will have trouble proving malice, Hemphill says. “The purpose here wasn’t to make fun of public officials personally,” says Hemphill. “It was to criticize public acts that they had taken. And that’s what the First Amendment is about. It’s to allow vigorous criticism of public officials.” Nevertheless, the article harmed the officials and prompted a chain of events that caused further damage, Whitten alleges. For example, the article was the subject of a discussion on a Dallas AM talk radio show, as alleged in pleadings in the case. The show’s host originally believed the article was true when he began discussing it, the pleadings allege. “It’s just not right. Public officials are subject to every sort of criticism and we know that,” Whitten says. “But to attribute false quotes to them … that crosses the line.” NO JOKING MATTER Only a handful of cases — none in Texas — involve satire and the First Amendment. And they weigh heavily in favor of the media. The most famous is the U.S. Supreme Court decision in Hustler Magazine v. Jerry Falwell (1988). In that case, a jury found that the magazine’s publication of a clearly marked parody that mocked Falwell, a nationally known minister, was not libelous, but the jury did grant Falwell actual and punitive damages for emotional distress. The Supreme Court overturned the damage recovery. Another decision involved a spoof published in Penthouse magazine about the sexual abilities of a fictional Miss Wyoming, who was competing in the Miss America contest. In Pring v. Penthouse International, et al., the real Miss Wyoming sued alleging the article defamed her, even though she was never mentioned in the article by name. In 1982, the 10th U.S. Circuit Court of Appeals reversed a jury verdict that found for the plaintiff, saying the article was protected by the First Amendment and was “complete fantasy.” But the Observer did not label its article as satire, and it used the names of real people. “It’s not a defense to say ‘We didn’t intend it to be taken literally,’ ” says David Anderson, a media law professor at the University of Texas School of Law. “ There’s a fact issue to whether people could have understood that in a realistic sense.” Then the question goes to actual malice, Anderson says. If the jury finds the Observer did not act with malice, the case is over, says Mark Cannan, a lawyer with San Antonio, Texas’ Clemens & Spencer, who also represents the San Antonio Express-News. There’s always a high probability in any civil case that it will settle before trial for numerous reasons. But when one side is an irreverent newspaper asserting its First Amendment rights and the other side includes two public officials represented by a spouse with a full head of steam, settlement is not likely, says media lawyer Bill Sims. “I would say this case has all the elements of a go-for-broke jury trial: appeal, no settlement, go all the way,” says Sims, a partner in the Dallas office of Vinson & Elkins who has represented The Dallas Morning News. “This is a tougher case, and I fully expect it to end up down in Austin with the Supreme Court.” Even though the case could be groundbreaking legally, it may just boil down to which side the jury likes better at trial, Sims says. “You would have to think that if the judge makes a compelling witness, the jury is going to be sympathetic to her,” Sims says. But Cannan believes it’s possible to convince a jury that the Observer did not act with malice. “I don’t think it’s a foregone conclusion that you’re in trouble with a jury,” Cannan says. “What you want in cases like this is a fairly hip jury that’s going to say, ‘Can’t you take a joke?’ “ John Council is a senior reporter for Texas Lawyer.

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