D Magazine Partners, L.P. v. Rosenthal
529 S.W.3d 429
| Tex. | 2017Background
- D Magazine published an article titled “THE PARK CITIES WELFARE QUEEN” under a "CRIME" heading with Rosenthal’s prior mug shot and asserted she’d "figured out how to get food stamps while living in the lap of luxury." The article was attributed to an anonymous author.
- The article discussed Rosenthal’s SNAP (food-stamp) application, addresses, an affidavit of indigency, property records, and prior theft-related arrests; it never expressly stated she committed fraud but used language (e.g., "must have been less than forthcoming") and juxtapositions implying wrongdoing.
- Rosenthal contacted the Texas Health and Human Services Commission, which investigated and reported no evidence of fraud; she sued D Magazine for defamation and related statutory claims.
- D Magazine moved to dismiss under the Texas Citizens Participation Act (TCPA); the trial court dismissed the statutory claims, denied dismissal as to defamation, and denied attorney’s fees; the court of appeals affirmed the denial of dismissal on defamation and declined to review fees.
- The Texas Supreme Court reviewed whether (1) the court of appeals improperly relied on Wikipedia to define "welfare queen," (2) Rosenthal made a prima facie defamation case under the TCPA, and (3) D Magazine was entitled to attorney’s fees for the claims that were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the article’s gist is defamatory (i.e., accuses Rosenthal of fraudulently obtaining SNAP benefits) | Rosenthal: the article, read as a whole under a "CRIME" heading with mug shot and juxtaposed facts, reasonably implies she committed welfare fraud | D Magazine: article criticizes SNAP or reports permissible facts; language is speculative and substantially true | Held: A reasonable person could construe the article’s gist as accusing Rosenthal of fraudulently obtaining benefits (defamatory per se) |
| Whether Rosenthal presented clear and specific evidence to make a prima facie defamation case under the TCPA | Rosenthal: Commission’s investigation finding no fraud plus affidavits and public records contradicting the article show falsity and negligence | D Magazine: each statement is literally/substantially true and magazine exercised sufficient verification; at most protected comment | Held: Rosenthal met the TCPA prima facie burden: falsity (Commission’s findings), defamatory gist, and evidence of D Magazine’s negligence in verification |
| Whether D Magazine proved affirmative defenses (truth; fair comment) by preponderance to avoid dismissal under TCPA | Rosenthal: truth defense fails because falsity is an element for matters of public concern; fair-comment fails if based on substantially false facts | D Magazine: article is true/substantially true and is fair comment/criticism on public program | Held: Defenses not established: falsity is plaintiff’s element for public-concern media cases and fair-comment privilege fails when based on substantially false facts |
| Whether D Magazine is entitled to attorney’s fees under TCPA for the claims the trial court dismissed | Rosenthal: (implicitly) partial denial means no automatic fees given defamation claim survives | D Magazine: entitled to fees for the dismissed statutory claims even though defamation survived | Held: Court of appeals had jurisdiction; trial court erred in awarding no fees—D Magazine is entitled to reasonable attorney’s fees for the claims dismissed under the TCPA (amount to be determined on remand) |
Key Cases Cited
- N.Y. Times Co. v. Sullivan, 376 U.S. 254 (establishes constitutional protection for criticism of public officials and the need to protect free expression)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (recognizes state interest in compensating reputational injury and distinguishes standards for private plaintiffs)
- Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (clarifies assessing publication "gist" and plaintiff’s burden to prove falsity for matters of public concern)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explains TCPA framework and plaintiff’s clear-and-specific prima facie burden)
- Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (publication meaning depends on reasonable person’s perception of the whole)
- KBMT Operating Co. v. Toledo, 492 S.W.3d 710 (Tex. 2016) (addresses falsity burden for media defendants on matters of public concern)