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The Texas Supreme Court heard a lively debate recently in a case of first impression that may determine whether satire is a protected form of speech. At issue is “Stop the Madness,” a 1999 article printed in the Dallas Observer. The article is a mock story with made-up quotations attributed to public officials including District Attorney Bruce Isaacks and Court-at-Law Judge Darlene Whitten of Denton County, Texas, according to lawyers for the newspaper. The article was so outrageous that the average reader could not have taken it seriously, the lawyers assert. But Mike Whitten, a lawyer for Isaacks and Darlene Whitten, alleges that some readers did believe the article was true, making it libelous. (The Whittens are husband and wife.) The article, over which a box with the word “News” in it was placed, concerned the arrest of fictional 6-year-old Cindy Bradley for writing a book report on Maurice Sendak’s 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 Darlene Whitten ordered the detention of a 13-year-old who allegedly wrote an essay with a violent tone and turned it in at school. Isaacks and Darlene Whitten sued the Dallas Observer and its parent company, alleging libel in New Times Inc. v. Isaacks, after the alternative weekly newspaper refused a request by the officials to publish a retraction of the article. A trial court and the state 2nd Court of Appeals refused the Dallas Observer‘s summary judgment motion, which the newspaper then appealed to Texas Supreme Court. Lawyers for the Dallas Observer argued on Dec. 3 that the article was a form of free speech protected by the First Amendment. “The ultimate message that the Dallas Observer was trying to convey was that the actions the officials made were misguided,” argued Jim Hemphill, a partner in Austin’s George & Donaldson who represents the Dallas Observer. “That is an opinion. And that is protected.” But Mike Whitten, a partner in Denton’s Whitten Law Firm, argued that the Dallas Observer went too far because numerous readers allegedly believed the article was true. Whitten said both of his clients received nasty comments from people who were outraged by it. “I think if you publish a false statement of fact about someone and it’s believed by a reader, then that’s libelous whether you label it satire or it’s in the driest journal,” Mike Whitten argued. The fictional article contained fictional quotes from Whitten saying: “Any implication of violence in a school situation, even if it was just contained in a first-grader’s book report, is reason enough for panic and overreaction.” The fictional article quotes Isaacks as saying: “We’ve considered having her certified to stand trial as an adult, but even in Texas there are some limits.” And the fictional 6-year-old Bradley was quoted saying: “It’s bad enough people think like [J.D.] Salinger and [Mark] Twain are dangerous, but Sendak? Give me a break, for Christ’s sake. Excuse my French.” Some of the justices questioned Mike Whitten how anyone could believe the article was true based on those quotes. “How many 6-year-olds do you know that are familiar with Salinger?” asked Justice Scott Brister, the court’s newest member, who was appointed by Governor Rick Perry in November. “Not too many,” Mike Whitten replied. “I don’t know how many readers know Salinger.” Also central in the justices’ questioning was the application of New York Times v. Sullivan to the Dallas Observer article. That seminal 1964 U.S. Supreme Court ruling found that to win libel cases, public officials must establish “actual malice” to prove that a publication knew its article was false or published a story with reckless disregard for whether it was true or false.

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