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Free Speech

No Media Libel Liability in Texas for Accurately Reporting Third-Party Allegations on Public-Concern Matters


Under American libel law, accurately repeating a defamatory allegation is itself defamatory, though with various exceptions. Texas law creates a huge exception, almost large enough to swallow the rule—Tex. Civ. Prac. & Rem. Code § 73.005(b) provides that

In an action brought against a newspaper or other periodical or broadcaster, the defense [of truth] applies to an accurate reporting of allegations made by a third party regarding a matter of public concern….

Here's an illustration, from Gallaher v. Denton Media Co., decided Thursday by the Texas Court of Appeals (Fort Worth), by Justice Elizabeth Kerr, joined by Justices Mike Wallach and Brian Walker; I think it likely would have come out the same way in other states, under the "fair report" privilege, which applies to accurate reporting of contents of government documents—but the court's logic would have applied even had the report not been a government document:

[Todd] Gallaher is a political consultant who was selected in December 2018 to join the staff of Denton County commissioner Dianne Edmondson as her chief administrator. His hiring was subject to a vote of approval by the Denton County Commissioner's Court. At a December 18, 2018 meeting—after the outgoing county judge voiced opposition to hiring Gallaher—the commissioners voted against approving him for the position…. {Gallaher's hire was eventually approved on January 1, 2019.} …

Gallaher sued over several articles published about him by the Denton Record Chronicle, which included the allegation that

[T]he Newspaper had obtained a document from the Texas Attorney General's office (OAG) showing that Gallaher had been "prosecuted for a charge of misrepresentation of identity in a 2008 primary election" for which he was "given a year of pre-trial diversion and sentenced to 60 hours of community service." …

The document was apparently a spreadsheet, of which there were two versions (a 6-page version and an 11-page version). Gallaher sued, claiming (among other things) that it was false to say "that he was 'charged,' 'prosecuted,' and 'sentenced' for his involvement in a 'political scheme' related to his alleged actions during the 2008 primary elections" and "that he was 'put on leave' for these alleged actions." The Court of Appeals rejected his claim:

Gallaher's chief allegation was that the Newspaper defamed him by publishing multiple statements in the December 29, January 1, and March 9 articles that he was "charged," "prosecuted," and "sentenced to 60 hours of community service" for his involvement in an alleged "political scheme." …

Gallaher maintains that a fact issue existed surrounding the Newspaper's truth defense because he "never violated the Texas Election Code Statute, never was arrested, never was charged, and never was prosecuted" and was, in fact, "exonerated" of any such wrongdoing. In support, he points us to three pieces of summary-judgment evidence: (1) [a] July 10, 2008 OAG memo, which opined generally that "campaign communications" do not include email communications for purposes of enforcing Section 255.005 of the election code [and thus couldn't have covered Gallagher's 2008 conduct; for more details on this, see the opinion -EV]; (2) the copy of the criminal-history search from the Texas Department of Public Safety website purportedly showing that a search for "Gallaher, Todd" returned no results; and (3) the variation in the disclaimers on the 11-and 13-page spreadsheets. In essence, Gallaher argues that this evidence raised a fact issue about whether he was actually prosecuted and formally charged rather than merely investigated for misconduct related to the 2008 elections….

[But] to be accorded summary judgment on [the] so-called "third-party allegation" defense [under § 73.005(b)], the Newspaper had only to conclusively prove that it accurately reported the information it received from the OAG—which it did. The article writers attested that their reporting was based on an OAG document titled "Election Fraud Violations Prosecutions Resolved" that contained on its third page a row dedicated to "Gallaher, Todd." The record shows that every iteration of this spreadsheet alleged identical information about an OAG case involving Gallaher:

  • He was labeled a "Defendant," and his case was assigned a cause number;
  • His case was listed among dozens of other election-fraud violation "prosecutions" resolved by the OAG;
  • His "charge" was for one count of misrepresentation of identity with intent to manipulate or injure a candidate during the 2008 primary election, in violation of Section 255.005 of the Texas Election Code;
  • His case was resolved on May 21, 2009; and
  • The "disposition" of his case was "[p]re-trial diversion for 1 year, 60 hours of community service, completed early." …

Gallaher seems to imply that the Newspaper did not accurately report the OAG's allegations when it stated that he was "sentenced" to community service as a requirement of his pretrial diversion. We are mindful that completing a pretrial diversion program does not generally lead to a criminal sentencing under Texas law. But, in a defamation case, "[t]echnical errors in legal nomenclature do not cause a statement to be false," and "[a] statement need not be true in every detail" for a defendant to be entitled to the statutory defense of truth….

Congratulations to J. Shelby Sharpe of Sharpe & Rector on the victory.