The Volokh Conspiracy

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Free Speech

Man-Bites-Dog at D Magazine


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 Recent unpublished cases, e.g., Waller v. Waller, No. 12-19-00226-CV, 2020 WL 3026342, *6 (Tex.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.