Texas Supreme Court reinstates libel lawsuit, rejects rule on reporting of third-party allegations

The Texas Supreme Court reinstated a defamation suit against an Austin television station that aired a broadcast about a local physician, concluding there were factual issues in the case best left for a jury to decide.

The decision rejects an argument that Texas media parties have long relied upon, that "a media defendant’s reporting of third-party allegations is substantially true if it accurately reports the allegations — even if the allegations themselves are false." The court said that it had not created such a rule in an earlier case, but instead had "reaffirmed that one must prove the substantial truth of the gist of a broadcast to avail oneself of the truth defense."

The case concerned a defamation lawsuit filed by Dr. Byron Neely against CBS affiliate KEYE-TV and investigative reporter Nanci Wilson. The television news station aired a seven-minute report in 2004 that indicated Neely was investigated by the Texas Medical Board and “found Neely had a history of hand tremors and that between 1999 and 2002, Dr. Neely was writing prescriptions, not only for his patients but for himself as well," according to the opinion.

Neely, who claimed his practice collapsed shortly after the report aired, sued KEYE-TV for libel. A state trial court granted summary judgment in favor of the television station, a ruling which was also upheld in 2011 by a state appeals court. The appellate court ruled that media defendants are protected when they report third-party allegations against individuals, so long as those allegations are fairly and accurately reported.

Writing for a five-justice majority, Supreme Court Justice Eva M. Guzman concluded that the gist of the report broadcast by KEYE-TV was that “Neely was disciplined for operating on patients while using dangerous drugs or controlled substances.” However, the order from the Texas Medical Board “disciplined Neely for prescribing himself dangerous drugs or controlled substances. It did not discipline Neely for taking or using dangerous drugs or controlled substances.”

Because state court precedent required statements to be “substantially true” to avoid liability, Guzman concluded that Neely had presented enough evidence to the court that he was not operating on patients while on any drugs or controlled substances to allow the case to proceed to trial.

Further, because Guzman's opinion concluded that the statement was not substantially true, the broadcast station could not avail itself of a fair report privilege at this stage of the proceedings. Rather, a government investigation that finds the reported allegations to be true would be one way for the station to rely on such a privilege, Guzman noted.

“We cannot say that – as a matter of law – the statement that Neely was disciplined for taking or using dangerous drugs or controlled substances was a fair, true, and impartial account of an official or judicial proceeding,” Guzman wrote.

In a dissenting opinion joined by two other justices, Chief Justice Wallace B. Jefferson was satisfied the KEYE-TV broadcast was substantially true, and raised concerns that the majority opinion “abridges the freedom to report on a matter of public concern.”

“In that respect, it collides violently with the First Amendment,” Jefferson wrote.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case, urging the state Supreme Court to let the lower court decisions stand.

Related Reporters Committee resources:

· News: Accurate report on third-party allegations is not defamatory