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In a case of first impression, Fort Worth, Texas’ 2nd Court of Appeals recently ruled that the “actual malice” standard — which holds news organizations liable if they publish information that is knowingly false about a public official — can be applied to works of satire some readers believe as true. The May 2 decision in New Times Inc. d/b/a Dallas Observer, et al. v. Bruce Isaacks and Darlene A. Whitten is a rare win for libel plaintiffs. But the case troubles media lawyers who believe the decision undermines the freedom of the press under the First Amendment — rights that permit criticism of public officials through satire. The plaintiffs’ lawyer in the case says the decision draws a clear line: The media should be held accountable for works of satire that aren’t clearly labeled and that readers believe is true. New Times concerns a 1999 article titled “Stop the Madness,” in which the Dallas Observer, a free weekly alternative newspaper, attributed made-up quotes to several public officials, including Denton County District Attorney Bruce Isaacks and Denton County juvenile court Judge Darlene Whitten. The satire, which ran under a “News” heading, concerned the 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.” According to depositions in the case, the genesis of the article was an actual October 1999 incident in which Whitten ordered the detention of a 13-year-old who allegedly wrote a violent-toned essay and turned it in at school. After Isaacks and Whitten filed their libel suit, the paper moved for summary judgment. Fort Worth 48th District Judge Bob McCoy denied the motion last year, and the paper appealed to the 2nd Court. According to the opinion, the Dallas Observer argued that applying the “actual malice” test of knowingly publishing false information to satire is inappropriate because all satire, by definition, is false information. Rather, a modified standard should be used where a plaintiff would have to prove the newspaper had a “subjective intent to pass off falsity as fact.” But an opinion by Justice Anne Gardner dismissed the Observer‘s summary judgment argument, saying it would result in a higher level of culpability than the law requires. “We disagree that the actual malice test should be altered to require either subjective intent to portray fiction as fact or a subjective belief that the fictional publication will be perceived by the reader as fact in cases involving satire or parody,” Gardner wrote in an opinion joined by Chief Justice John Cayce and Justice Sue Walker. “We believe the Dallas Observer‘s proposed substitute test improperly raises the level of culpability and, hence, the burden of a plaintiff, from ‘knowingly or reckless disregard’ to that of intent to mislead or deceive.” TOUGH DECISIONS Jim Hemphill, a partner in Austin’s George & Donaldson who represents the Dallas Observer, says his clients have not decided whether to appeal the ruling or take the case to trial. But the issue is ripe for review by the Texas Supreme Court, Hemphill says. He believes the 2nd Court of Appeals did not adequately explain how the “actual malice” standard should apply to the facts in the case. “It said something about we could be liable as to whether people would interpret this as true or not. And in actual malice, reckless disregard has a special meaning which is actual awareness,” Hemphill says. “In this context we would have to be actually aware that people would think this was true but disregarded that.” Hemphill says his clients, who include two Observer editors and one staff writer, had no idea some readers would believe the satire article was true. Some media organizations, including a Dallas talk radio show, discussed the Dallas Observer article as if it were true, according to the opinion. The article included a fabricated quote attributed to Isaacks, in reference to the 6-year-old, that said: “We’ve considered having her certified to stand trial as an adult, but even in Texas there are some limits.” The article also included a made-up quote attributed to Whitten telling the 6-year-old: “It’s time for you to grow up, young lady, and it’s time for us to stop treating kids like children.” Such published statements should be protected, Hemphill says, because they are political commentary. “The reason you can’t have a basic negligence standard in this case is this is political speech,” Hemphill says. “There’s no question that the core of the First Amendment is to allow speech that is critical of public officials.” Mike Whitten, a partner in Denton’s Griffin, Whitten, Jones & Reib who represents the plaintiffs, says the opinion is a strong endorsement of his position. Whitten, who is Judge Whitten’s husband, alleges the Dallas Observer failed to warn readers that the article was parody. “They didn’t think that anybody would believe it, and if that’s the standard, you’re never going to be able to [prosecute] one of these cases,” Whitten says. “There’s so many ways that they could have made it clear to readers that they were not reporting actual events and they didn’t.” The decision clears the way for jurors to decide whether the Dallas Observer published the article with actual malice. “I don’t think the jury is going to like this,” Whitten says. “I believe the jury is going to be offended by what they did.” FURTHER RULINGS Don Templin, a media lawyer and partner in Dallas’ Haynes and Boone, hopes the Texas Supreme Court considers and resolves the case and the question of how the “actual malice” test should be applied to satire. “I think that the application of the actual malice test that the Observer urged is correct,” says Templin, who has represented the Dallas Observer in the past. “I hope that this doesn’t mean that if you’re going to write satire that you have to put a big label on it,” Templin says. “I don’t think that ought to be the law.” Should the case get to a jury, the issue of whether Isaacks and Whitten were defamed by the article will be the central issue, says David Anderson, a media law professor at the University of Texas School of Law. “I think it’s really more of a factual issue now. I think they [the Dallas Observer] could put on a pretty good case to the jury that, hey, this is parody,” Anderson says. “And if they get a jury finding that people did not understand the story as literally true, then they win.” But finding jurors who are regular readers of the Dallas Observer and who understand when the publication ventures into satire and parody may be difficult, Anderson says. “That’s the hardest thing in all of these parodies. Almost always you don’t get a jury that’s a cross-section of your readers,” Anderson says. “But that’s a challenge of trying lawsuits — to [get jurors to] see things through eyes other than their own.”

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