Warner Bros. Entm't, Inc. v. Jones
538 S.W.3d 781
Tex. App.2017Background
- TMZ published an article (June 18, 2014) reporting that former NFL player Robert Jones allegedly tried to hire a hit man; the source was his cousin Theodore Watson, a convicted felon who had recently harassed/extorted Jones and filed a police Incident Report. TMZ posted an update after Jones's lawyer sent a press release.
- Jones sued multiple defendants (Warner Bros. entities, EHM/ TMZ entities, TMZ.com, and reporter Elizabeth McKernan) for libel, civil conspiracy, intentional infliction of emotional distress (IIED), malicious prosecution, and abuse of process; defendants moved to dismiss under the Texas Citizens Participation Act (TCPA).
- The trial court allowed limited discovery (deposition of McKernan, documents), heard argument, and denied the TCPA motion. Defendants appealed interlocutorily under Tex. Civ. Prac. & Rem. Code § 51.014(a)(12).
- The appellate court examined (1) whether the TCPA applied (i.e., the publication was an exercise of free speech about a matter of public concern), and (2) whether Jones produced clear and specific evidence to make a prima facie case for each challenged claim.
- Court held TCPA applies (story involved health/safety/public concern). It found Jones established prima facie libel and derivative conspiracy against all defendants except the domain-name entity TMZ.com, but failed to establish prima facie IIED, malicious prosecution, and abuse of process (those claims dismissed). Court reversed in part, rendered dismissal for specified claims, and remanded remaining defamation/conspiracy claims for further proceedings and fee/sanctions determination under §27.009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA applies | Jones: Article not a matter of public concern; source was an anonymous stalker and story was manufactured | Defendants: Article reported an alleged murder-for-hire and police report — a matter implicating public safety, government, and public-figure reporting | TCPA applies: article was a communication on a matter of public concern (health/safety) |
| Whether plaintiff established publication and identity of publishers | Jones: Website materials and emails show corporate defendants and McKernan participated in and published article | Defendants: Parent companies and some named entities had no operational role; TMZ.com is a domain, not an entity; McKernan claimed she did not publish | Prima facie publication established as to corporate defendants, EHM/Warner entities and McKernan; TMZ.com (domain) lacks capacity and was dismissed |
| Whether Jones established actual malice for libel (public-figure standard assumed) | Jones: Timing, source credibility issues (convicted felon), selective omissions, failure to investigate, and post-publication conduct support inference of actual malice | Defendants: They accurately reported the police Incident Report and conducted sufficient investigation; failure to retract is not proof of malice | Jones presented clear and specific circumstantial evidence supporting a prima facie showing of actual malice (case survives dismissal on libel) |
| Whether non-defamation claims survive TCPA (IIED, malicious prosecution, abuse of process) | Jones: Emotional distress and other torts flow from the same facts; Incident Report and publication caused these harms | Defendants: These causes fail as a matter of law (no prosecution or process commenced; IIED duplicative of defamation) | Court dismissed IIED, malicious prosecution, and abuse of process for failure to establish prima facie elements; conspiracy survives as derivative of libel (except vs. TMZ.com) |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (defines TCPA two-step burden and "clear and specific" evidence standard)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for defamatory falsehoods about public figures)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (balancing free-press protections and reputational torts)
- D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017) (modern media context and TCPA interaction)
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (actual malice circumstantial-evidence factors)
- Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (U.S. 1989) (reckless disregard where obvious reasons to doubt informant)