Free Speech

Man-Bites-Dog at D Magazine

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Two interesting items from last week involving D Magazine, a prominent Dallas publication:

[1.] The magazine lost an appeal in its "The Park Cities Welfare Queen" case (D Magazine Partners, L.P. v. Rosenthal); that case had also earlier gone up to the Texas Supreme Court. The opinion is long and complex, and I can't do it justice here, but it's a good illustration of how private-figure libel plaintiffs can sometimes show enough evidence of alleged negligence to get to a jury.

[2.] Also last week, Allison Publications—the parent company of D Magazine—itself sued an anonymous critic for libel (in Allison Publications, Inc. v. Doe). Media companies are of course as entitled to sue for libel as any other company, but such instances appear to be rare enough for the "man-bites-dog" label to come up (see, e.g., here and here).

The exact nature of the libel is a mystery:

9. Doe is an unknown person, sometimes identifying herself as "Maya" or "Maya Pendleton," who has repeatedly contacted advertisers and others in business relationships with Allison Publications and made false allegations about Allison Publications and its  advertising, journalism and business practices in an attempt to undermine those business  relationships.

10. Doe made calls to multiple advertisers and business associates of Allison Publications from the same telephone number, 718-682-4712, and requested that calls be returned to her at that number.

11. Doe falsely, maliciously, and without privilege made false assertions of fact about Allison Publications, its management, and its economic interests in an effort to  undermine Allison Publications' business relationships.

Yet it appears that under Texas law, "It has frequently been held, and is now established as a general rule, that in such cases the petition must set out the particular defamatory words, or at least their substance and meaning." Murray v. Harris, 112 S.W.2d 1091, 1094 (Tex. Civ. App. 1938). Recent unpublished cases, e.g., Waller v. Waller, No. 12-19-00226-CV, 2020 WL 3026342, *6 (Tex. App. June 5, 2020), echo this; so it's unclear that the  petition here is adequate.

On the other hand, perhaps (I just speculate here) the plaintiff's goal at this point is simply to get discovery aimed at unmasking the critic, and perhaps they think the court won't object to the petition's not "set[ting] out the particular defamatory words," especially since the defendant is unlikely to be represented at the discovery stage.

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  1. How would one go about getting a lawyer to represent you in this case?

    Can a lawyer represent an anonymous client?

    How hard is it to attach a name to a phone number?

    1. Happens all the time. Ask Jane Roe’s lawyer in Roe v. Wade. Ask anonymous whistleblowers and many other situations. All correspndence to and from the court and other parties goes through the lawyer, who is identified.

    2. “How hard is it to attach a name to a phone number?”

      Depends on who has the information in the first place, and how strongly the person wishes to remain anonymous to others. In some cases, nobody other than the person themselves will have the information of what telephone number(s) is/are attached to their names. you can go down to Wal-Mart and buy a prepaid phone and some airtime, and activate it without telling anybody what your name is. If you pay cash, even Wal-Mart doesn’t have a handy way to tell who belongs to that phone number. It’s also possible to set up an VOIP phone in such a way as to make it basically impossible to match a name to the number. It’s definitely possible to break attempts at remaining anonymous if you can throw enough time and money at the problem (so, a national intelligence agency can do it, and so can the FBI), but it’s not as easy as looking up the number in a reverse directory, IF the person has taken some steps to attempt to remain anonymous. If the person hasn’t done anything to obscure their identity, then it probably IS as easy as looking it up in a reverse directory, or just asking politely at the phone company that operates the number, “hey, who pays the bill for this number? I need to serve him some legal papers.”

  2. I’m curious how Allison Publications can assert that the allegations made against it are false when it doesn’t seem to know what the allegations were.

    1. That conclusion is probably based on hearsay.

      Someone told them “Maya Pendleton is telling lies about you.”

      The real curiosity is that a libel claim requires proof of damages. You don’t get to sue and collect damages because somebody said something mean about you. You have to show how the fact that somebody said something mean about you cost you actual money.

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