*1 If prime example. This case is a relief. judg were to obtain a final plaintiffs seriously undermines Because the Court County, in favor in ment their Johnson le- efforts to reform the Legislature’s they appeal face certain reversal on I reverse the I dissent. would gal system, as to ten of the eleven because venue re- appeals court of judgment of the and reversal is man plaintiffs improper, court with mand this case to the trial & datory. Tex. Civ. Prac. Rem.Code the motion to trans- grant instructions to 15.064(b) (if § improper venue is “shall fer. error”); v. be reversible Ford Motor Co. (Tex.1998).
Miles, S.W.2d plaintiffs obviously
Yet the believe that the advantages they gain
tactical will from County in out
maintaining venue Johnson that consideration.
weigh
Ill TURNER, Petitioner, County only lies in Johnson Venue respect Gallup’s plaintiff claims. No oth- v. Gallup er than is a resident of Johnson TELEVISION, Wayne KTRK INC. and only County. The defendant who resides Dolcefino, Respondents. County plaintiff Johnson is Gaines. No Gallup against other than a claim makes No. 99-0419. There is no sections Gaines. basis under of Texas. maintaining Supreme 15.002 and 15.005 for venue as Court remaining plaintiffs’ to the claims. Ac- Argued Feb. 2000. cordingly, plaintiffs those did not “inde- pendently any plaintiff, other establish Argued March 2000. proper venue.” Civ. Prac. & Rem.Code Tex. Decided Dec. 15.003(a). § (1) (4) through
Nor do subsections 15.003(a)
section plaintiffs. rescue the Our Surgitek,
decision in Bristol-Myers Corp. Abel, (Tex.1999),
v. 997 S.W.2d 598 dis-
penses plaintiffs’ argument with the
they have an essential need to maintain County. They
venue Johnson contend they need to “pool resources for experts
common and issues and to reach
trial expeditiously.” Surgitek We held pool the need to resources will not
carry
day.
will county trial date in the of suit
earlier Surgitek id.
suffice. See We said
“essential need” as used section 15.003 necessary” “indispensably
means that it is county. in a Id. try particular claims “very
Speed of trial does not meet burden that section 15.003 sets forth.
high”
See id. *6 Foster, owned sever- who Franklin, him to Franklin Cardwell
Ronald G. modeling a male beauty salons and Jones, E. al Carrigan, Robert Ralph S. & Houston, Landa, April In in Houston. Lapin & studio Carrigan Lapin, Turner. a will with preparing discussed petitioner. for on the will worked and an associate Carter, Moran, E. T. Leon David June, changes making several May and Latham, Babcock, L. Robert P. Charles placed The will behest. at Foster’s Houston, Walker, respondents. for Jackson assets, including the estate bulk of policies bene- all life insurance proceeds of PHILLIPS delivered Chief Justice estate, bene- for the into trust fitting the Court, joined by Justice opinion of the Foster, father, Clinton fit Foster’s GONZALES, and and Justice ABBOTT the trustee and ex- designated as Thomas ENOCH, joined by Justice Justice of the trust was The duration ecutor. BAKER, in all HANKINSON and Justice would corpus after which the years, eleven III, joined Part except Parts Foster; however, to Clinton be distributed in all OWEN HECHT and Justice Justice before the trust terminat- if his father died Part II. except Parts ed, corpus would provided will two libel case raises public-figure This girlfriend, immediately to Foster’s pass First, we must decide whether issues. completed Batura. The will was Christina based public figure can sue for defamation ready for execution June whole, than on a as a rather publication Second, we false statements. specific will, executing the In the months before Dolcefino, Wayne must determine whether law. in trouble with the Foster was Television, KTRK acted reporter for March, on fed- indicted Nevada broadcasting report with actual malice charges. The next credit card fraud eral representative questioning whether state month, arrested in Nevada he was mayoral Syl- then Houston candidate car, had which Thomas driving Thomas’s multi- was involved in a vester Turner stolen, of a allegedly part reported hold million-dollar insurance seam. We would in which Foster “chop-shop” scheme that Turner established that broadcast car, Thomas and Foster sell the defamatory, but as a whole was false and money. Finally, the insurance share present clear and convinc- he failed June, by a Houston Foster was indicted Therefore, ing evidence of actual malice. credit card grand jury, also on federal *7 the court of judgment we affirm the Turner drafted charges. fraud When from appeals but for reasons different arrest, will, but April knew about the he S.W.2d opinion. those in that court’s “chop-shop” any not know about he did indict- of the federal scheme or either ments. I Turner, Foster, to unbeknownst Also background for
We first discuss of life had a sizable amount already who case, light the evidence in the presenting May insurance, more in began acquiring Dur- jury’s verdict. favorable to the most total, Foster had In mid-June issue, and June. was a at Turner ing the events in life insur- Barnes, million approximately firm of partner $1.7 in the Houston law ance, $875,000 directly benefitting Morse, 1985, with In late Turner’s and Turner. life on also took out credit estate.1 He Dwight Thomas introduced life-long friend guaranteed minimum with a policies, $500 $120,000. Clin- month terms of the other 1. Under the beneficiary designation on The individually would receive Foster ton whether it ben- $330,000, policy was not clear partner Thomas’s Reinders Foster's business $150,000 individually Foster ($300,000 or as trustee. him in case of efitted receive life million dollar death), applied for another one receive also and Thomas would accidental jewelry purchased May request, Judge cars that he At Snell’s Hutchison ap- pointed Elizabeth Colwell to investigate and June. paid by Foster’s death. was Colwell Clin- 18, evening On the of June Secret Ser- City attorney, ton Foster’s Kansas Car- agent Jay Bly approached vice to Foster ston searching Johannsen. After arrest him on grand the June Houston nearly years, two could not Colwell locate jury indictment. promised Bly Foster 12, 1989, April Foster. on Accordingly, that he would turn in the following himself Judge Hutchison declared Foster dead. morning. He did not do so. Instead Fos- later, however, year Over a the United day ter went the next to Turner’s office Embassy in Spain States informed Clinton signed where he his will. Turner was not Foster his son was alive and in a will; present signed when Tur- Spanish prison drug charges. pro- secretary ner’s and a partner witnessed its bate court then rescinded its declaration later, execution. Three Foster was of death and closed the estate. reported during sailing to have drowned Meanwhile, pursued Turner a successful found, trip. body No was but Keith political wanning career. After election to Reinders, Anderson and Russell who were the Texas Representatives House Foster, on the boat with both swore in 1988 and Turner announced his can- affidavits that Foster fell overboard. On didacy for mayor of Houston June 1991. father, Foster, June Foster’s Clinton residency, To establish shared a and Thomas met with Turner and asked city house inside the limits with Thomas. probate that he the will. Turner agreed In spot November Turner won a and the next month sent notifying letters run-off fin- mayoral the December 7 life companies several of Fos- ancier Bob Lanier. In August, ter’s death. the Coast Guard 27, Wednesday On November before report claiming issued formal that Fos- Thanksgiving, private investigator Clyde presumed ter “was drowned lost Wilson KTRK Fryer. called anchor Shara 21, 1986, sea.” On November Turner filed Fryer possible Wilson told of a connection application probate to Three the will. between Turner and the Foster insurance later, weeks Prudential Insurance Compa- swindle. to Fryer Wilson also referred ny, benefitting which had a policy Foster’s private investigators, Peary two other Per- Reinders, partner business intervened Bill ry and Elliott. Elliott had been hired dispute Foster’s death. The parties began Cheryl Turner’s in- estranged wife discovery depositions and took from many vestigate Turner in with their connection witnesses, Turner, including Agent Bly, pending Perry po- divorce. a former was Thomas, and Batura. liceman who on Lanier’s finance served committee. July attorneys Clinton Foster’s because, disqualify moved to as the talking After KTRK news director drafter, likely will’s be materi- Doerr, Fryer tip Tom passed on Wilson’s *8 al probate judge, witness. The the Honor- reporter to Dolcefino Wayne Dolcefino. Hutchison, Judge disqualified able John talked to Wilson for less than five minutes Turner until the issue of Foster’s death Elliott, and later talked told him who Judge was resolved. Hutchison also that Turner linking he knew no evidence named Richard Snell the estate’s tem- re- to an insurance scam. Elliott also porary administrator and him to instructed talking ferred Dolcefino to After Colwell. Elliott, investigate Foster’s death. Turner later with Per- with Dolcefino had lunch $28,000 repre- one-page submitted a bill of for his ry. Perry gave Dolcefino estate, rejected sentation of the but the Foster insurance discussing Snell memo it. it. swindle and Turner’s connection to policy, physical required to take insurance but never took exam for it effect.
Ill un- Thirteen Exclusive with his was a Lanier cefino Perry Dolcefíno that he told mystery into a get- investigation people working had dercover supporter and twist. explosive political an probate court records. with ting Dolcefíno re- Twenty minutes after continued: Dolcefíno station, pack- he turned to the received Bob, among because right, That’s documents, apparent- age probate court mayo- role did Houston What questions: included ly Perry. from These documents in Turner Sylvester play ral candidate to dis- Foster’s motion pleadings, Clinton fraud? multi-million dollar this tale of Turner, disqualifying the order qualify investigating Turner’s have been We Turner, Turner, Bly, from depositions swindle attempted in this insurance role investigated officer who the Coast Guard day about it on the we first heard since “death,” application Foster’s Turner’s fee holiday. Our Thanksgiving before will was Although and its denial. Foster’s focus, Sylvester did Turner know what documents, included in these Turner’s it? and when did he know in deposition provisions described the will’s Foster’s at- then described Dolcefíno detail. death, to fake his identified Thomas tempt Thanksgiving day, Dolcefíno went On Houston, and closest friend in as Foster’s with a camera crew to the house shared denying any knowledge showed Thomas inter- Turner and Thomas. Dolcefíno Dolcefino’s voice- that Foster was alive. man on camera. separately viewed each Thomas at his continued: “We found over any knowledge Both denied Foster Forest, in a home he shares home Inwood was alive or of insurance fraud. Tur- mayoral Sylvester candidate with following days spoke two Dolcefíno with the news ner. ... The candidate claims people several about Turner’s involvement him was news to too.” about Foster people the Foster matter. One of these Colwell, spoke was with whom he on the narration continued: “Both Dolcefino’s twice, five to phone the first time for about Dwight Sylvester Thomas and ten time minutes the second Sylvester involved in the Fos- deeply were briefly. spoke Dolcefíno also with Clinton insur- attempt get and the life ter case Johannsen, lawyer, who Foster’s Carston pay off 6.5 million dol- companies ance him told knew of no infor- disappearance. in the wake of the lars suggesting mation Turner’s involvement hoax, they But did know it was all scam. also told Johannsen scheme to swindle millions?” Thomas Dolcefíno that Turner’s bill had been re- denying then shown that he and jected timely Turner had not filed because they had would have dealt with Foster taped it. Dolcefíno another interview “But,” any illegality. Dolcefíno known of studios, Friday Turner on at the KTRK stated, “Thomas and Turner did deal with again any and Turner once denied involve- Foster, learning he even after inment an insurance scam. investigations criminal target was the story KTRK on Decem- first aired they pursued the estate early six before the runoff. On ber of a money significant even after evidence newscast, anchor Bob p.m. KTRK’s 5:80 had al- scam Foster’s death possible began: Dolcefíno, Boudreux ready According surfaced.” a will for may up “in June 1986 Turner drew begin tonight with word what We Foster, timing interesting.” insur- biggest attempted be one of the massive credit card history, was then indicted “for ance swindles recent Houston *9 13. Dolcefíno continued: fake the fraud” on June apparent conspiracy 19th, sign the Foster rushed to year a Houston man with “On June death of 80 old office, day the next leaving will in Turner’s troubles and millions of dollars criminal despite in the Gulf what Wayne trip Dol- for a sailboat Tonight, in life insurance. called fear of the anything inappropriate. friends his water. June Turner had done 22nd, indictment, days nine Judge after the three report Hutchison described the as will, drawing up after “fairly ridiculous” and said that Turner’s supposedly in falls off boat another in conduct the Foster matter probate boat’s wake and drowns.” reproach. above Turner called the story false, malicious, “factually misleading” and Dolcefino, Then, according to “Turner untrue. He suggested story also that the began legal get effort to the millions in came from the Lanier campaign. money get released and mutual friend, Thomas, Dwight appointed as ad- KTRK reporter Mary Conway Ellen re- ministrator of the estate.” Dolcefino fur- turned to the a station notes and ther claimed that at first Thomas denied videotape of the news conference. Con- estate, seeking control of the but court way press briefed Dolcefino on the confer- fact, documents showed that Thomas “[i]n tape response ence and then went petitioned the court to become administra- Craig Yaroga, Lanier’s campaign from this, Following tor.” alleged Dolcefino Meanwhile, manager. Dolcefino screened that Turner questioning “tried to block” least some the video of the news Batura, who had died an airline crash conference, prepared then an addendum years two earlier. He that further noted 10 p.m. for the news. After rebroadcast- Secret Service officers later determined ing story, the earlier anchor Boudreux that Batura phony had known of Foster’s added that Turner had called news con- charging death. After Thomas with ference to attack the story’s allegations as threatening witnesses the Foster mat- false and The station then misleading. ter, story shifted back to Turner’s clip stating aired a of Turner handling probate of the case. The broad- story represented “an all-time low pursued cast stated that “Turner the es- politics.” Houston Boudreux also stated year, judge tate case for over a until a that Turner that the Lanier cam- claimed removed him from the case over Turner’s paign stray. had The “hand-delivered” protest, citing conflicts of interest.” It clip Varoga broadcast then cut noted, explanation, then without that Tur- “I stating: eveiy think it’s ridiculous that rejected. ner’s bill had been story time there’s a in the or on newspaper
The broadcast then showed Turner TV that questions Syl- raises serious about record, claiming that a victim he was of Foster’s vester Turner’s that he Then, scheme and had been “left with the bill” blames the Bob Lanier campaign.” “But,” legal reading for his work. continued Dol- from a had script Dolcefino cefino, true, “if Tur- “KTRK prepared, that’s then Boudreux stated that duped by overwhelming Wayne story.” ner was evidence Dolcefino stand two Hutchi- legal at least clients with close ties The station did not air or mention In one of closest conclu- son’s McConn’s comments. friends.” sion, “Sylvester Dolcefino noted that Tur- broadcast, Before conducted polling fully cooperated ner claims with all of he Murray by political scientist Dr. Richard investigations into disappear- Foster’s Turner for the Houston Chronicle showed ance, investigators but at least three close day running slightly ahead of Lanier. simply true.” to the case tell us that’s broadcast, ten dropped after the broadcast, In Immediately points polling. after the the same the follow- raged called an 8 at which over the p.m. press ing days, controversy conference midst story’s introduced Hutchison and Pru- of this contro- Judge source. to come probate versy, Clyde dential’s counsel the Foster Doerr asked Wilson matter, Although story’s “tipster.” Jim McConn. McConn stated forward of a originally Fryer than had informed pro- Turner’s conduct was “not other Wilson Foster, he Turner and fessional” and that he never believed connection between *10 it could pled we “having that for stated little useful information provided had on libel rely intend to 5, or do not two not Thursday, December story. the On in this judgment support to election, implication the anchor Shara days before But this case, discussion.” end of period, p.m. KTRK’s 5:30 broad- Fryer stated on of a discus- came in the context statement move, the “Today surprise that in a cast attorneys strenu- Turner’s sion which forward. story stepped real source of the “gist” the broadcast’s ously argued today Clyde dropped a bombshell Wilson Tur- defamatory. and As both false story he the to by admitting that leaked is, stated, Judge, “The issue ner’s counsel introducing After Wilson as Channel 13.” story, gist of the or not the the whether added, source, story’s Fryer “Sylvester substantially false.” is story Bob Lanier apologize Turner refused to to —G-I-S-T that “the alleged also pleadings Turner’s accused the La- today, though Turner had substantially false gist of the broadcast information campaign providing nier make defamatory.” These statements and report.” in the News Eyewitness contained rely intended to clear that Turner 7, Saturday, December Turner lost the On as a whole false- theory that the broadcast election, vote to drawing 46.94% the him, libel regarded and that ly defamed Lanier’s 53.06%. theory. by implication separate as a alleging suit brought this argu reject also defendants’ We him in the Dolcefino libeled broadcasts Tur jury charge, that the to which ment KTRK, employer, that Dolcefino’s had au object, does not allow Turner ner did not thorized and ratified his conduct. The charge theory. this The to recover on Turner, jury returned a verdict for assess jury “consider the actual instructed the to $550,000 damages actual exem ing it re in the as language used broadcasts $4,500,000 plary damages against KTRK taken as a Turner when lates $500,000 against Dolcefino. The trial whole, any implied state opposed Turner, but judgment court rendered inferences, only or consider ments exemplary damages KTRK’s reduced cir light surrounding of the broadcasts statutory cap 2.2 under then million $ KTRK claims that because cumstances.” 16, 1987, 70th applicable. See Act of June consider charge jury instructed the C.S., 2, 2.12, § Leg., 1st ch. 1987 Tex. Gen. language” and not “actual broadcast’s 37, 46, April Laws amended Act of inferences,” the “implied statements R.S., 1, 1995 Leg., § 74th ch. Tex. whether jury only could consider appeals Laws 111. The court of Gen. were individual statements broadcast’s judgment and rendered for de reversed whether the true and could not consider fendants, holding pres that Turner did not a false and broadcast as a whole created convincing proof ent clear and that Dolcefi- language But the defamatory impression. malice. 987 no or KTRK acted with actual jury publi to consider the instructing 100. S.W.2d light “in of the cation “as a whole” and refutes surrounding circumstances” II jury could KTRK’s claim A individual state the broadcast’s consider contrary, claim in isolation. On consider Turner’s ments We first jury to consider language required presented that the broadcast as a whole statements in combination of events. whether these defamatory impression false and impression, defamatory a false and we need not ad created argue Defendants facts or mis by omitting material theory because Turner waived either dress this jury leadingly juxtaposing events.2 when his counsel pre-trial hearing at a fact, jury to consid- very reason that it allowed the complained the court of KTRK broadcast, limiting rather than charge for the er the entire appeals that the was defective *11 114 it perception
was therefore allowed to consider this the- so distorts the viewers’ that ory. they substantially impres receive a false event.”). Bear, In
sion of the
Golden
B
plaintiff
Bear of
Golden
Texas claimed to
by
Entrepreneur
have been libeled
an
argue
Defendants next
that Texas
magazine article. The article
focused
recognize
law does not
a cause of action
allegations
fraud
against
investment
two
publication
for defamation based on a
as a
companies, Golden Bear of
California
disagree.
long
whole. We
We have
held
of
Golden Bear Utah. The article also dis
defamatory
that an allegedly
publication
practices
cussed the sales
of
Bear
Golden
light
should be construed as a whole in
of
Texas, an independent company.
of
See
surrounding
upon
circumstances based
Bear,
Golden
Because a
de
publication’s meaning
newspaper
pends
ordinary person’s
against
on its effect on an
court had ruled
Gonza-
appeals
him
against
courts have held that under
lez
a suit for fraud
perception,
convey
Although
law a
can
a false
another defendant.
each state-
publication
Texas
true,
defamatory
by omitting
literally
or ment in the article was
meaning
facts,
though
plaintiffs
all
sto
that the
juxtaposing
even
article did
mention
ry’s individual statements considered
had dismissed
from the suit be-
Gonzalez
appeals
literally
isolation were
true or non-defama
fore trial and
the court
judgment
him
be-
tory.
Distributing Sys.
against
See
Bear
rendered
Golden
Revel, Inc.,
surety
act
for
agreed
v. Chase
708 F.2d
948-49 cause he had
(5th
Gonzalez,
law);
Cir.1983)(applying Texas
Ex
the co-defendant’s costs. See
Gonzalez,
Bear,
press Publ’g. Co. v.
their
to individual statements.
to have no
consideration
below,
on our discussion
we find this
Based
Although
it.
Id. at 646.
paying
illus
Bear and
Golden
Gonzalez
events,
a true account
employees gave
meaning
publication,
trate
ordinary
that an
manager
false and defamato
claimed
thus whether it is
*12
per
infer that she
person’s
falsely
on a reasonable
could
ry, depends
reader
and
entirety
publication
of a
as a whole.
ception
publication
from the
dishonest
claim,
merely on individual statements.
not
rejected
plaintiffs
Id.
we
While
recog
Many
courts have likewise
other
to be
id.,
this case
we do not believe
in a
nized that while all the statements
a
held that
simply
Randall’s
dispositive.
when read
iso
publication may be true
pre-
liable for
cannot be held
defendant
lation,
may nevertheless
publication
events, regard-
a true account of
senting
substantially false and defamato
convey a
from
might conclude
of what someone
less
or
by omitting material facts
ry impression
not
The case did
account. See id.
this
See,
juxtaposing true facts.
suggestively
facts or
omission of material
involve the
F.2d
Republic,
v. Arizona
972
e.g., Crane
facts,
true
presentation of
misleading
(9th Cir.1992);
1511,
v. Papa
O’Brien
1523
just
account
as false
can render an
which
1067,
Am., Inc.,
1073
780 F.2d
Gino’s of
Unlike
outright
an
misstatement.
(1st Cir.1986);
Scientology v.
Church of
Randall’s,
truth of each individ-
the literal
(9th Cir.1984);
694,
F.2d
696
Flynn, 744
not a defense
such
ual
is
statement
(Del.
Re,
553, 558
Co. v.
496 A.2d
Gannett
Bear,
See,
at
708 F.2d
e.g.,
cases.
Golden
Cook,
627,
1985); McCullough v.
So.2d
679
(Miss.1996);
Eng
Healey v. New
632-33
Cain
v.
also cite
Defendants
321,
Inc.,
Newspapers,
555 A.2d
326
land
(Tex.1994).
577
Carp.,
Hearst
878 S.W.2d
(R.I.1989); Memphis Publ’g
v. Nich
Co.
light tort
rejected
the false
Cain we
ols,
412,
(Tenn.1978);
419-20
569 S.W.2d
defamation
largely duplicated
it
because
al.,
et
Keeton on Torts
Keeton
Prosser
&
proce
tort’s
that more established
without
116,
§
117
But see Auvil
(Supp.1988).
at
id.
safeguards.
and substantive
See
(9th dural
Minutes,”
816,
v. CBS “60
67 F.3d
822
plaintiffs
not limit a
at
Cain did
579-80.
Cir.1995)(Washington
recog
law does
from the whole
right to claim defamation
the whole of a
nize defamation based on
broadcast).
merely prevented
such
publication;
of a
represent
cases
These
light
a false
claim.
bringing
a
from
plaintiff
of the substantial truth doctrine.
converse
Jacobs,
14,
plaintiff claiming
a
defa
light,
v.
794
16
false
See McIlvain
S.W.2d
Unlike
(Tex.1990).
truth
as a whole
publication
Just as the substantial
on a
mation based
a
precludes liability
publica
“gist”
for
publication’s
doctrine
that the
prove
must
story’s “gist”
correctly conveys
tion that
a
publica
and that the
defamatory
false
details,
in the
“sting” although erring
at
See id.
privileged.
is not otherwise
tion
permit liability
publica
for
these cases
be
(delineating the differences
581-84
defamation).
right
the details
but fails
gets
tion that
We
light
tween false
and there
proper
in the
context
put them
reject
argument
KTRK’s
therefore
wrong. Keeton
story’s “gist”
by gets the
bring
can
a claim
plaintiff
hold that a
116,
(Supp.1988).
§
117
supra,
al.,
facts, literally or
et
when discrete
defamation
true,
a
published
are
such
substantially
contends, however,
KTRK
false
substantially
they
create
way
defamation
rejected
theory
Court
by omitting
defamatory impression
on the whole of a communication
based
in a
juxtaposing facts
facts or
Markets,
Johnson, material
Inc. v.
Food
Randall’s
disapprove
thus
misleading way. We
Randall’s,
(Tex.1995). In
986 S.W.2d
78
technical
individual state-
[1st
- Houston
Television,
1999,
pet.);
no
KTRK
Dist.]
ment.
In Milkovich v. Lorain Journal
(Tex.
Fowkes,
779,
Co.,
1,
v.
Inc.
497 U.S.
110
111
S.W.2d
S.Ct.
(1990),
App.
pet.
[1st Dist.]
de
rejected
L.Ed.2d 1
the Court
- Houston
nied);
Lighting
Hardwick v. Houston
& proposition
pro-
that the First Amendment
(Tex.
Co.,
Power
943 S.W.2d
opinion
tected all statements of
on issues
writ).
App.
no
[1st Dist.]
18-20,
concern. See id. at
- Houston
Instead,
S.Ct. 2695.
the Court held that
Next, we
Tur
consider whether
falsity for constitutional purposes should
ner’s
him
public figure prevents
status as
be determined based on whether a state-
claiming
from
broadcast as
*13
“provably
ment carries a
false factual con-
whole defamed him. Two
high
other states’
18,
notation.”
at
Id.
1]7 657, 2,n. 109 Connaughton, 491 U.S. a defamation claimant’s expense (1989). Some L.Ed.2d 562 Id. at 556. Unlike S.Ct. to redress.” right dissent, courts, Hecht’s Constitution, Justice the Texas Con as would United States prove must right public figures guarantees have held expressly stitution clear and falsity torts. See bring reputational malice and both actual Tex. Const. 556; Littell, Casso, 8, 13; I, Buckley §§ 776 S.W.2d v. art. convincing evidence. (2d Cir.1976); 19-23 859 S.W.2d Firestone parte Ex 539 F.2d Tucci C.J., concurring). (5th (Tex.1993)(Phillips, Time, Inc., Cir. 460 F.2d v. speech provision free Texas Constitution’s J., have 1972)(Bell, concurring). Others everyone right “speak, guarantees only prove figures need held that any opinions sub publish write or of the preponderance falsity based on being responsible abuse ject, National City v.. Rattray evidence. (em I, § 8 art. privileged (9th Cir.1994); 793, 801 Tex. Const. City, 51 F.3d added). Likewise, the Texas Con phasis 324, 341 Ginzburg, 414 F.2d v. Goldwater guaran open provision courts stitution’s Cir.1969). (2d ar defendants Although open, be tees that courts shall “[a]ll that the trial appeals in the court gued him, in his injury for an done every person jury by instructing court erred *14 lands, or shall goods, person reputation, evidence, nei of the preponderance mere by due of law.” remedy have course Tex. argued or the burden side has briefed ther added). 1, § art. 13 (emphasis Const. Thus, we falsity in this Court. proof of for occasionally pro extended we have While require unwilling are on this record greater to defamation defendants tections falsity. of convincing evidence clear and by States than those offered the United Instead, deciding that we assume without Constitution, protec we have based these jury instructed the properly the trial court law, Texas tions on the common not the falsity preponderance a to determine Casso, See 776 S.W.2d Constitution. evidence, jury’s and we review 556; (Phillips, at 32 859 S.W.2d Tucci cf. defamatory meaning verdict on both C.J., in the lan concurring)(“[N]othing “no evidence” falsity under our traditional Ex guage purpose of the Texas Free standard, must we standard. Under authorizes us ... to afford pression Clause no point this unless hold for Turner on of inter greater weight balancing jury have found reasonable could un expression than we would ests to free defamatory. See be false or broadcast to Amendment....”). find der the First We Con/Chem, Inc., 650 S.W.2d Kindred v. in Texas’s common law or Consti nothing (Tex.1983)(test rule is “no evidence” for figure a from preventing tution on minds could differ reasonable whether when, a defamation action bringing Musser, fact); also of vital see an issue misleading juxtaposi omission or through (defamatory meaning at 654-55 S.W.2d tion, conveys publication as whole minds if reasonable question of law defamatory message. false and differ). cannot
C
“no
Applying the deferential
review, we hold that
standard of
evidence”
now determine whether
We
support
there is some evidence
conveyed
as a whole
a false
the broadcast
falsity.
We
on the issue
jury’s answer
defamatory message.
prelimi
As a
fact-finder
a reasonable
conclude
matter,
we discuss our standard
nary
broadcast,
could determine
are
falsity
for the
issue. Courts
review
jux
of critical facts and
through omission
public-figure
the burden that a
divided on
others,
substantially
left a
taposition of
falsity, and the
proving
bears in
plaintiff
as at
of Turner’s actions
impression
false
express
Court has
Supreme
United States
Based
Foster and the estate.
torney for
issue.
ly
judgment
reserved
account, a viewer could
Communications,
misleading
Inc. v. on this
Harte-Hanks
reasonably
participat
believe that Turner
these statements to mean that Turner and
fraud,
especially
light
ed
insurance
attempted
Thomas
ap-
have Thomas
introduction,
the broadcast’s
pur
which
pointed as administrator on their own voli-
ported to
examine Turner’s “role”
Although
tion.
Turner’s actions were
“tale of multimillion dollar
insurance
estate,
any lawyer
probating
those
an
deny
fraud.” We do not
that even an the
to place
broadcast’s failure
them in the
report
accurate
may
troubling
have raised
proper
falsely suggested
context
that Tur-
questions about Turner’s association with
position
ner
by handpicking
abused his
Foster and
Thomas. Such
account
friend to handle an estate worth millions.
would not have been actionable. As we
broadcast also
faked to mention that
earlier,
stated
a true account which does
primary
Foster’s father was the
beneficia-
impression by
not create a false
omitting
will,
trust,
ry
testamentary
of the
material facts or suggestively juxtaposing
of the life
A
policies.
most
rea-
actionable,
them is not
regardless of the
conclude,
sonable
might
viewer therefore
conclusions that people may draw from it.
especially
light
of the broadcast’s claim
Randall’s,
See
11Q
month,
leaving for the boat
day before
the estate.
duty
and his
ary interests
likelihood, most viewers
Second,
in all
trip.
of the broadcast’s
But
placement
drafting
that it
between
suggested
distinguish
Turner’s fee
discussion of
will,
of this “conflict
because
rejected
particularly
because
signing
why the
falling
is not clear
The record
to Foster’s
interest.”
later referred
broadcast
Turner’s
rejected
drawing up
administrator
temporary
days after
the boat “three
off
Judy Len-
probate expert,
Bear,
fee. Turner’s
708 F.2d
the will.” See Golden
nox,
adminis
temporary
that the
testified
from
(defamatory meaning viewed
948
for
Turner’s claim
probably
trator
denied
“ordinary reader”
of the
standpoint
was insolvent
the estate
fees because
reader”);
Enter
Rose v.
not the “literal
claim would
denying Turner’s
because
(Tex.Civ.
737,
Co.,
617 S.W.2d
prise
ninety-day
period
limitations
start
1981,
ref'd
writ
App. - Beaumont
to recover
Turner to sue the estate
n.r.e.)(fact
when the
regarding falsity
issue
§
313. Johann
fees. See
Tex.
Prob.Code
ar
could misconstrue
“man on the street”
hand,
sen,
told Dolcefino that
the other
on
Bugliosi, 26
ticle);
Forsher v.
see also
rejected
it was
claim was
because
Turner’s
628,
P.2d
Cal.Rptr.
Cal.3d
case, nothing
in the
any
filed.
untimely
(1980)(“courts
from a
must refrain
temporary
that the
ad
suggested
record
...
is said
analysis’ of what
splitting
‘hair
for rea
rejected Turner’s fee
ministrator
”).
In
meaning....
to find an innocent
disqualification.
to his
sons related
did not
deed,
themselves
employees
KTRK
description
of Turner’s
broadcast’s
Dolcefi-
Based on
make this distinction.
misleading.
work on Foster’s will was also
re
anchor Dave Ward
story, KTRK
no’s
broadcast,
Turner “drew
According to
...
day that “Turner
drew
ported the next
for Foster in June
“the
up” will
days before the dis
Foster’s will three
up
”
broadcast
timing interesting.” Then the
....
appearance
jury
grand
Houston federal
stated
these material omissions
Because of
13 for “massive
indicted Foster
June
we believe
misleading juxtapositions,
“rushed
credit card fraud” and that Foster
that the
could conclude
reasonable viewer
in Turner’s office on June
sign
will
mischaracterized Turner’s role
broadcast
19th.” Dolcefino continued: “June
thereby cast
matter and
in the Foster
indictment,
days
three
nine
after
*16
than an
Turner’s action
suspicion
more
on
will,
drawing up
suppos-
Foster
after
have warranted.
accurate account would
off the
in another boat’s
edly falls
boat
as a
hold that the broadcast
We therefore
added).
(emphasis
and drowns.”
wake
defamatory
and
conveyed a false
whole
ordinary
description
Based on this
message.
might believe that Turner drafted
viewer
disap-
will
Foster
three
before
Ill
in fact Turner had been
peared, when
May and was not
working on the will since
A
the will
present
signed
when Foster
even
that
Having determined
that
impression
19. Under the
June
could leave a false
as a whole
broadcast
just
the will from scratch
drafted
defamatory impression, we must now
weeks,
Foster’s
days, rather than
before
Because
malice issue.
consider the actual
juror could conclude that
a
disappearance,
judgment can
a defamation
the threat of
product
to be the
likely
was more
the will
issues, the First
chill discussion
defraud insurers. To be
of a scheme to
Turner,
a public
as
requires
Amendment
sure,
that
might realize
a careful listener
convincing
clear and
figure, to establish
Tur-
technically referred to
the broadcast
York
malice.
New
June,
of actual
See
evidence
will” in
“drawing up the
ner as
280,
Sullivan,
254,
376 U.S.
Co. v.
and to Times
“interesting,”
timing of which
710,
285-86,
(1964).
malice, public
jury
To establish actual
a reasonable
could have found that
figure
prove
must
that the defendant made Dolcefino
acted
actual malice. Be-
that,
knowledge
yond
statement “with
that it was
we ourselves must conclude that
false or with
disregard
reckless
of whether
the evidence of malice is clear and convinc-
279-80,
it was false or not.” Id. at
ing.
84
See Eastwood v.
Enquirer,
National
context,
Inc.,
(9th
1249,
Cir.1997).
S.Ct. 710. In this
“reckless disre
123 F.3d
1252
gard”
means
the defendant “enter
Here,
analyze
we
the actual malice issue
tained serious doubts as to
truth
of his
in terms of both Turner’s claim that the
publication.”
Thompson,
St. Amant v.
390 broadcast as
presented
a whole
false
727, 731,
1323,
U.S.
88 S.Ct.
20 L.Ed.2d
defamatory impression of
events and
(1968).
262
Although actual malice focuses
claim that individual statements were false
mind,
on the
plaintiff
defendant’s state of
defamatory.
Applying the standard of
can prove
through objective
evidence
above,
review discussed
we conclude that
publication’s
about the
circumstances. See
presented
Turner has not
clear and con-
Lando,
153, 160,
Herbert v.
441 U.S.
99 vincing evidence of actual malice.
1635,
(1979);
S.Ct.
B. Hall & Co. v.
678 S.W.2d
621
B
1984,
(Tex.App.
[14th Dist.]
writ
- Houston
analysis
Our
in this case is
n.r.e).
ref'd
complicated because Turner’s claim rests
primarily on
defamatory
the false and
Federal constitutional law dic
message
created
the broadcast as a
tates our standard of review on the actual
whole, not
individual false stateménts.
issue,
malice
which is much higher than
case,
type
public figure
must
typical
our
“no evidence” standard of re
present
convincing
clear
evidence
Bose,
510,
view. See
121 (1967). days only had five Dolcefino 1094 convincing evidence clear and establishes story, complicated and write to research investigation, his actual malice. From (1) court docu of which was primary facts: source following knew Dolcefino Moreover, had to be story executor, ments. Thomas as will named Foster’s of a news the time demands to fit (2) rejected merely edited had been Turner’s fee all failure to include (3) filed, Dolcefino’s segment. Turner timely it was not because Turner’s regarding details likeli- the relevant of the disqualified was because suggests negli in the estate participation witness would be a material hood that he we (4) these circumstances but under gence, the in- proceeding; contest the will actual Foster, that it establishes cannot conclude policies benefitted Clinton surance Huck convincing clarity. See (5) with benefi- malice primary Foster was the Clinton (6) abee, trust, at 426. Turner S.W.3d testamentary ciary years two disqualified for over had been to the broad points Turner next (7) Turner reappeared, Foster before timing of the misleading discussion cast’s until the Coast probate the will did According to work on Foster’s will. of his listing Fos- report issued a formal Guard Turner, is that passage of this “gist” drowned.” “missing presumed ter days three be up” “drew the will Dolcefino, how disappeared. already discussed fore Foster We have ever, that no one had told admitted at trial first five of these omis how at least the will three completed the of Tur him that Turner impression sions created false disappearance. before Foster’s days of the Foster estate. representation ner’s contends, Therefore, in Dolcefino of actual For an omission to be evidence malice, however, timing on the passage cluded the plaintiff prove must cre knowledge that it would will with the publisher strongly knew or sus again But once impression. a false pected substantially that it could create a ate Huckabee, convincing evidence is not clear and See 19 there impression. false suspected 426; strongly that Dolcefino knew Scripps- S.W.3d at see also Perez v. Co., 215, First, segment indicates 520 this. Howard Broad. 35 Ohio St.3d a will for Foster” (1988); up “Turner drew Ogden Dixon v. N.E.2d Inc., “rushed to It states that Foster Newspapers, 187 W.Va. 416 June. then (1992). Fi record, day trip. the will” the before sign 244-45 On this S.E.2d to Foster refers say nally, failure to the broadcast we cannot Dolcefino’s days before he the will three convincing “drawing up” include these facts is clear viewer That a reasonable disappeared. he knew the evidence that broadcast to mean that Tur segment present impression a false or that he en could take three before up” It “drew the will tertained serious doubts to that effect. ner does not itself es disappeared from the record whether apparent is not convincing evidence of Dolcefino, clear and non-lawyer, understood the tablish as a agree that there was actual malice. We naming of Foster’s Thomas as significance segment’s language in the discrepancy description or knew that his executor cleverly that Dolcefino possible that it is disqualification reasons for Turner’s Time, to deceive view language Pape, manipulated Inc. v. incomplete. Cf. Dolcefi- possible that 279, 292, equally But it is 28 L.Ed.2d ers. 91 S.Ct. U.S. to choose his words simply no failed (1971)(failing clarify charges *18 is, by stating precision, that report proper government in a police misconduct “signed” rather than up” actual “drew was not merely allegations were (outside presence) three malice). of Turner’s Further, upcom will of the because Because disappeared. he election, clearly “hot before story ing that Dolcefino Butts, other evidence there is no Publ’g v. 388 Curtis Co. news.” Cf. seg- that this suspected 157-59, 1975, 18 strongly or 130, L.Ed.2d knew 87 S.Ct. U.S. 122 viewers,
ment would mislead its lack of comments when he tape edited the clarity alone is not convincing prepared clear and p.m. addendum to the 10 Bose, evidence of actual Mary malice. See 466 broadcast. But Conway Ellen testi- 513, (merely U.S. 104 1949 be- S.Ct. fied that she told Dolcefino the substance intelligent speaker cause an should have of Hutchison’s and McConn’s comments. realized that a statement is inaccurate is Even disregarding testimony, Dolcefino’s must, not clear convincing evidence of actual as we we do not conclude that Dolce- malice). fino’s decision to omit the Hutchison and footage convincing McConn is clear and Nor phrase “timing does the evidence of actual malice. interesting” indicate actual malice. Even assuming that Turner began work on the appeals recog the court of As in May will finished final draft nized, Hutchison and McConn did dis 13, June still might timing one find the the truth pute any specific statement in Moreover, “interesting.” events because Turner, however, argues the broadcast. fact, does not connote a false “timing that Hutchison and McConn confirmed interesting” protected statement as a the “gisf’of story—that Turner Milkovich, opinion. statement of See 497 knowingly participated an insurance 20, 110 atU.S. S.Ct. 2695.5 fraud-was false. failure to in Dolcefino’s comments, concludes, clude their fur points also to KTRK sta ther confirms Dolcefino’s intent to mislead manager tion testimony Doerr’s as evi about concerning viewers Turner’s actions dence of actual malice. Doerr testified the Foster matter. But as we discussed opinion story “implied that above, convincing- there is not clear and a knowing participant Turner was in an evidence that Dolcefino himself believed testimony, insurance fraud.” This howev story misleading. to be Because nei er, comes in the context of Doerr’s testi specif ther Hutchison nor McConn refuted how, mony describing editing broadcast, general ic facts in their broadcast, he and Dolcefino careful were testimony concerning good Turner’s char report only they what knew to be factu acter would not have alerted Dolcefino that Further, earlier, ally true. as we noted misleading. the broadcast was false or See even accurate broadcast would have (Tex. Hecht, 627, v. Howell 821 S.W.2d 631 questions raised serious about Turner’s denied). 1991, App.-Dallas writ Libel judgment associating with Foster. We law cannot require organization a news therefore, say, cannot that Doerr’s testi air everyone might the interviews of who mony is clear and convincing evidence that speak public figure’s on a behalf. See either he or Dolcefino knew that ., Cities/ABC, v. Inc. 190 Capital Levan broadcast could create a false mislead (11th 1230, Cir.1999), F.3d cert. de ing impression or had serious doubts 1262, nied 528 U.S. 120 S.Ct. about whether the broadcast could mislead (2000); L.Ed.2d 118 see also Miami Her viewers. Tornillo, ald Co. v. 418 U.S. (1974)(state Next, points to Dolcefino’s 41 L.Ed.2d law S.Ct. decision not to air requiring newspapers political McConn’s and Hutchi- to allow son’s comments from Turner’s con candidates a right reply negative news Amendment). ference as evidence actual malice. Dol- editorials violated First story cefino at trial testified he did not Dolcefino was entitled to edit his know fit allotted for period about Hutchison’s and McConn’s within the short time passage, In its discussion of this the court of ion whether the Texas Constitution affords appeals opinion stated that statements of are opinions greater protection to statements protected under the Texas Constitution. See than Milkovich. express opin- 987 S.W.2d at We 115-16. no
123
Turner
argument,
In a related
Peter
&
the broadcast. See
Scalamandre
Sons,
actual
is evident
news
Kaufman,
563 claims that
malice
Inc. v.
118 F.3d
(5th Cir.1997).
December
to
Doerr’s
on
Faced with the choice
director
decision
include,
story’s
the
“true
may
Clyde Wilson as
produce
which material
to
Dolcefino
reac
The
is unclear whether
simply
have
believed that Turner’s
record
source.”
at KTRK
response
superiors
tion
the Lanier
told his
campaign’s
and
Dolcefino
connections
newsworthy
Perry
political
was
Hutchison’s
and his
more
than
about
they produced Wilson. Because
general
and
Under
McConn’s
comments.
before
circumstances,
in the
links Doerr’s deci
nothing
cannot conclude
record
these
we
thought processes,
Hutchi-
to Dolcefino’s
that
that Doleefino’s decision to omit
sion
cannot,
son’s
clear and
an inference re
support
and McConn’s comments is
evidence
Moreover,
convincing evidence of actual malice.6
his state of mind.
garding
inaccurate to name
technically
was not
Next, Turner
that Dolce-
contends
he
the initial
gave
as the source as
Wilson
not
by
fino demonstrated actual malice
KTRK,
provided
few
although
tip
was con
revealing that one
his sources
story.
details of the
Dolcefi-
substantive
Lanier
Turner
campaign.
nected to the
is
not clear and con
simply
no’s conduct
first
the
p.m.
claims that
broadcast’s
vincing evidence of actual malice.
Wayne
that “KTRK
Dolce-
statement
by
fino
en
story” implicitly
stand
C
the Lanier
that
campaign’s
dorsed
denial
they
story. According
claiming
to Tur
that
planted
addition to
ner,
him,
actual
Dol-
as a
defamed
this shows
malice because
broadcast
whole
sources, Peary
knew that one of
of the broadcast’s
cefino
also claims
several
Perry,
aligned
was
with the Lanier cam
statements were false
individual
paign.
agree
they
knew
were
We
the “stand
Dolcefino
false
story”
recklessly disregarded
statement
is
and could
their truth or falsi
ambiguous
be
we
ty.
appeals,
taken as an endorsement of the Lanier
Like the court of
conclude
individual
campaign’s position. But the statement
that most of the broadcast’s
are
and that most
may
literally
instead have been
as a re
true
intended
statements
sponse
substantially
Turner’s
are
allegation
literally
that the sto of those not
true
ry
114-17.
misleading.
was false and
As there
true.
987 S.W.2d at
For
See
falsely
no evidence that
to en
referred to
example,
Dolcefino intended
broadcast
dollars,
Lanier
we
million
in fact Foster
campaign’s position,
dorse the
6.5
when
$
do
that his
the 10
1.7 mil
only applied
approximately
not believe
had
silence
$875,000
insurance,
p.m.
story’s
only
regarding
broadcast
lion dollars
actually
the estate. An
convincing
source is clear and
evidence
which
benefitted
viewer, however,
controversy
not
average
actual malice.
over
would
view a
campaign
million dollar insurance swindle—or
source between
Lanier
1.7
news,
$875,000
swindle—with
campaign
important
even an
a 6.5
any
opprobrium
Dolcefino and KTRK were entitled
less
than
million
McIlvain, 794
report
it. That
not insert
swindle.7 See
S.W.2d
Dolcefino did
dollar
Davis,
16;
controversy by validating
into the
Fort Worth Press Co. v.
himself
itself,
not,
(Tex.Civ.App.-Fort
allegations
Turner’s
does
S.W.2d
refd).
Likewise,
convincing
Judge
writ
actual malice with
Worth
establish
order
not “cite” conflicts
Hutchison’s
did
clarity.
excerpts
Contrary
introductory
6.
broadcast’s
KTRK did air
from Hutchison’s
statement,
day.
comments
next
likely
qualify
and McConn’s
attempted
biggest
insurance swin-
"one of
note, however,
estate was
We
that as the
history.”
in recent
dles
Houston
$300,000
debt,
to the
the net benefit
over
$575,000.
have been
about
estate would
*20
interest,
reported.
money,
as Dolcefino
We
make
surance
this statement sub-
already
have
discussed how the
stantially
“conflicts
false. As the
appeals
court of
observed,
interest” statement could mislead a rea-
correctly
it would
little
make
viewer,
Judge
sonable
but the fact that
average
difference to the
viewer whether
actually
Hutchison
not
cite
did
conflicts of
the assets
probate
were
or non-probate.
any
interest does not make the statement
more
the fact that
the court of
Unlike
court of ap
client,
“duped” by only
Turner was
one
however,
peals,
we believe that
jury
claimed,
rather than two as the broadcast
reasonably
could have
found the broad
does not make the
substantially
statement
cast’s
assertion
Turner “blocked” Ba
false.
tura’s questioning to be false.8 But we do
particularly
Turner
takes issue
not
presents
believe that the record
clear
with the broadcast’s statements that Tur
convincing
evidence that Dolcefino
“pursued
ner and Thomas
the estate mon
made this
actual
statement with
malice.
ey” and that Turner and Thomas were
trial,
At
testified that both Col-
Dolcefino
“deeply involved in the Foster case and
Special Agent Bly
well and
told him that
attempt
get
to
companies
insurance
Turner had
question
“blocked” Batura’s
pay off 6.5 million
dollars
the wake of
however,
trial,9
ing. Bly,
testify
did not
at
disappearance.”
already
We have
dis
im
testimony
effectively
Colwell’s
was
cussed how the broadcast’s omission of
peached on cross-examination. Turner ar
placing
facts
these statements in context
gues that if we disregard both Dolcefino’s
But,
may have misled viewers.
as we ex
and Colwell’s
must
testimony,
jury
above,
plained
failure to include
Doleefino’s
done,
have
the evidence is clear and con
not,
itself,
these
is
facts
clear and con
vincing that
Dolcefino fabricated
vincing evidence of actual malice.
“blocking” allegation.
As
these statements
them
selves,
Bose,
agree
we
appeals
with
court of
But
the United States
they
substantially
are
Supreme
true. As the
held that a
lack
Court
witness’s
estate,
lawyer
not,
itself,
credibility
for the
Turner was “in
could
establish
volved” in the Foster
convincing
case. Whether he
clear and
of actual
evidence
Bose,
“deeply”
involved is not objectively malice.
See
466 U.S. at
say
verifiable. Nor was
inaccurate to
Although
S.Ct. 1949.
it is clear that dis
“pursued”
that Turner
mon
testimony
any
credited
“does not rebut
ey. Turner
notify
sent letters to insurers
inference of actual
that the record
malice
ing
requesting
them of Foster’s death and
...
clear
supports,
equally
otherwise
it is
that claim forms be sent to him. Even
that it does not constitute clear and con
case,
vincing
after Turner was removed from the
Id.
evidence of actual malice.”
Bose,
lawyer in Turner’s office
a letter to
have stated that
sent
Consistent
we
company
jury
an insurance
on Turner’s
for the
to disbe
enough
“[i]t
behalf
seeking payment
policy benefitting
testimony.
on a
Rather the
lieve defendant’s
plaintiff
convincing
Thomas. Nor does broadcast’s reference
must offer clear and
money,”
proof
recovery.”
to the “estate
instead of
in-
support
affirmative
mistakenly
appeals
8. The
evidence in the record that remote-
9. The court of
stated
ly suggests this is a
letter
December
Bly
at
S.W.2d at 116.
testified
trial. 987
agent
Findley
E.
from Secret Service
Neal
Bly
Dolcefino admitted at trial that
had stated
seeking
polygraph.
to take Thomas’s
deposition
that he did not remember
merely
The letter states
that the Secret Ser-
talked to Dolcefino before
whether he
give
polygraph
wanted
vice also
Batura a
broadcast.
test.
It did not indicate that the Service was
having difficulty finding
they
Batura or that
help
finding
needed Turner’s
her.
con
Casso,
proper
in their
argues
Turner’s actions
place
776 S.W.2d
*21
But be
may have misled viewers.
Supreme
Court in Harte-Hanks
text
that
political
“[vigorous
reportage
Nowhere
disagree.
Bose. We
cause
limited
optimal
necessary
witness’s
for
campaigns
state that a
does Harte-Hanks
can,
itself, establish
of our
institutions
credibility
by
functioning
lack of
democratic
convincing
history
of actual
to our
of individual
clear and
evidence
central
and
Rather,
Harte-Hanks,
in Harte-
491
at
liberty,”
malice.
Court
see
U.S.
regards
there
and con
Hanks concluded
was clear
the Supreme Court
109 S.Ct.
only af
vincing evidence of actual malice
as nec
reporting
but inaccurate
innocent
Moreover,
of de
abun
considering
jury’s rejection
ter
out of an
essary evil.
trample
testimony
witnesses’
in combination
caution
libel law not
fense
dance of
that
debate,
undisputed
requires
affirmative evidence
the Supreme
with
Court
Harte-Hanks,
491
malice. See
present
actual
clear and convinc
public figures
690-91,
(emphasis
109
report
at
2678
inaccurate
ing
U.S.
S.Ct.
evidence
Bose,
added);
2678
also id.
109 S.Ct.
466 U.S. at
see
than innocent. See
other
(actual
merely
510-11,
has
malice not established
S.Ct.
As Turner
not
12;
Eastwood,
n.
convincing
and Justice HECHT dissenting malice. concurring judgment establish actual but joined. part which Justice OWEN Turner also claims that Dolcefino stating investigators told lied three BAKER an opinion filed Justice him that Turner had with cooperated not part part dissenting concurring and investigations into Foster’s death. Once and Justice which Justice ENOCH again, convincing find we do not clear and joined. HANKINSON allega evidence Dolcefino made participate. Justice O’NEILL did tion malice. testified with actual Dolcefino Elliott, Colwell, had con Bly APPENDIX Turner’s Col- non-cooperation. firmed testimony was with Dolce- well’s consistent BROADCAST CHANNEL NEWS testified, however, story. Elliott fino’s 1,1991 P.M. NEWS —December 5:30 specifically that he did not tell Dolcefino but uncooperative, that Turner had been BOB BOUDREUX: “may that.” that Dolcefino have concluded you thank evening everyone, and Good conclude, however, the mere We cannot joining us. of three sources purported fact that one tonight may of what begin with word We making allegation for an denies specifically biggest attempted one of be convincing clear evi establishes history, in recent Houston swindles Further, as we dence of actual malice. death of conspiracy to fake the apparent above, Dolcefmo’s and Colwell’s explained man with criminal 30-year old Houston not, itself, credibility prove does lack in life in- of dollars troubles millions clarity. convincing malice with actual surance. with his Wayne
Tonight, Dolcefino into a investigation Dolcefino’s no means exclusive undercover byWe condone political potential explosive in this reporting mystery KTRK’s inaccurate discussed, failure to twist. As we have case.
Wayne. Sylvester Clyde Foster. DWIGHT THOMAS:
WAYNE DOLCEFINO: you’re I speaking know who of. Bob, right, among That’s because SPEAKER: questions: mayoral What role did Houston candidate, Turner, play in this Yeah.
tale of multi-million dollar fraud? *22 DWIGHT THOMAS: have investigating We been Turner’s I nothing prison know about in Spain. attempted role insurance swindle SPEAKER: since we day first heard about it on the You don’t know that he’s alive and he’s in before the Thanksgiving holiday. prison? focus, Sylvester Our what did DWIGHT THOMAS: know and when did he know it? No. loving memory, obituary read. WAYNE DOLCEFINO: 30-year It was June of Syl- old We found Thomas at his home Inwood Foster, Clyde vester a male model and Forest, a mayoral home he shares with owner, beauty salon had died a freak Sylvester candidate Turner. accident. It’s the leasing home Turner has been companions Two claimed Foster had fallen city inside the limits since he announced off a sail boat and into the waters run plans mayor. for Gulf of Mexico six miles south of Galves- The candidate claims the news about Fos- ton. him, ter was news to too. body Coast Guard searched but the SYLVESTER TURNER: was never found. guy That died more than years five or six week, This Sylves- 13 Undercover learned ago. ter very Foster was much alive and in SPEAKER: Salamanca, prison alias, Spain, under an dead. He’s not Christopher Lauren Fostier. SYLVESTER TURNER: Fostier had allegedly been arrested after As far as we all know. delivering two Spanish kilos of cocaine to a mean, agent. undercover I he went overboard. SPEAKER:
Dwight Thomas was said to be Foster’s closest friend here Houston. He’s in Spain. him SYLVESTER TURNER: Thanksgiving morning
We asked about Foster’s miraculous return from the Not as I as far know. grave. WAYNE DOLCEFINO:
DWIGHT THOMAS: Dwight Sylvester Both Thomas and Tur- Prison, Spain? deeply Sylvester ner were involved in the life attempt get case and SPEAKER: companies pay off 6.5 million Uh-huh. disappearance. in the dollars wake of the DWIGHT THOMAS: hoax, But it they did know was all a Prison, Spain? scheme to swindle millions? Prison, Spain? DWIGHT THOMAS:
SPEAKER: No. money released in insurance something the millions myself up set I wouldn’t Thomas, friend, get Dwight mutual crazy like that. the estate. appointed as administrator over SPEAKER: sought control Thomas at first denied didn’t know? And him about until we told Foster’s estate DWIGHT THOMAS: hadwe viewed. court documents No. THOMAS: DWIGHT No. was, away, I he passed The deal after fact, as a matter never would have—in We I was found out that administrator fact, we wouldn’t have dealt him estate. doing if we had that he all known So— beyond something ordinary out of WAYNE DOLCEFINO: of the law. premise *23 fact, to court petitioned In Thomas the WAYNE DOLCEFINO: become administrator. Thomas and Turner did deal with But why him the evidence We then asked Foster, Sylvester learning even after he suspicious. him didn’t make in target investigations the of criminal was DWIGHT THOMAS: 1986, and the early they pursued estate into that. We looked after of a money significant even evidence scam death al- possible Foster’s had really I really actually, I didn’t know— ready surfaced. in it get deeply didn’t want to too involved on. going I know what was because didn’t Dwight Thomas Foster his introduced Turner, friend, attorney early Sylvester SYLVESTER TURNER: times we out a will There have been made various they die for year, up And in June of Turner for individuals drew Foster; shortly thereafter. timing reasons interesting. a will for the you you 18th, you say, And at it and look Sylvester was On June Foster indict- well— know, circum- put together try by a grand jury ed Houston federal which it come about. stances credit massive card fraud. mean, happen. I it does 19th, sign
On June Foster rushed office, leaving day in Turner’s will next WAYNE DOLCEFINO: Gulf, despite for a sail boat in the trip of a questioning Turner tried to block also what friends called his fear of water. case, of in this female friend Foster’s 22nd, indictment, nine days after the Batura, June promised a woman Christina will, drawing up three after Fos- money in the will. share supposedly the boat another ter falls off years ago in an Hawaiian Batura died two wake drowns. boat’s crash, and Service plane commuter Secret let- investigators they Curious? now confirm found knew proved Batura pictures ters In the this: weeks before bizarre Get alive, Foster as she tried to collect was accident, for an emer- applied had death, helped and Turner her. luxury cars gency passport, bought several attached, say state- policies investigators they with life insurance and And have friend, Dwight millions close amassed in life cover- ments that Turner’s Thomas, one witness age. threatened least alive. authorities Foster was who had told signs something Syl- Despite fishy, part any scam. Thomas he was legal get effort to denies began vester DWIGHT THOMAS: WAYNE DOLCEFINO: cooperat- Turner claims fully No. all of investigations ed with into Fos- No. disappearance, ter’s but at three in- least No. very vestigators close to tell us this case simply that’s not true. No. Bob, And we’ll continue full pursue No. story here at home Spain. both and in Undoubtedly no. BOB BOUDREAUX: WAYNE DOLCEFINO: coming Is Foster back? Sylvester Turner pursued the estate case WAYNE DOLCEFINO: until year, for a him judge removed from government trying The United States protest, citing
the case over Turner’s con- him Spain, extradite back to and we have flicts interest. trying through embassy been U.S. tried November to col- get Madrid to contact with him. $28,000 more than lect fees from legal BOB BOUDREAUX: the still unsettled estate for his work. much, you very Wayne. Keep Thank fol- rejected. The bill that one. lowing never gained Thomas of the estate. control *24 1,1991 CHANNEL 13—December And one of nine companies insurance p.m. 10:00 paid any money ever off in Foster’s death. BOB BOUDREAUX: money went And to his father. evening, you everyone, Good and thank for mayoral questions The candidate the tim- may It of joining very us. well be one he, too, ing of revelations and claims biggest attempted in insurance swindles victim, not part any conspiracy was of Houston history, apparent recent con- European conceal Foster’s get-away. spiracy to fake the death of a Houston SYLVESTER TURNER: man with criminal troubles and millions of in life dollars insurance. Sylvester Turner is the one that’s been left with the bill. question The role tonight raised is what mayoral did Sylvester candidate WAYNE DOLCEFINO: play Tonight in this insurance fraud? our true, Sylvester But if that’s then un- Wayne Dolcefino has this exclusive duped by was evidence and overwhelming investigation. dercover legal at least two close ties to clients with WAYNE DOLCEFINO: one of his closest friends. memory, It loving obituary read. SYLVESTER TURNER: 30-year Sylves- and was June old You told me the man is a liar. Foster, Clyde beauty ter a male model and ought man to come back here and be owner, salon had in accident. died a freak with, if dealt that’s the case. Two fallen companions claimed Foster had off a sail boat and into the waters If, fact, is, in then he to be dealt ought Gulf of Mexico six miles south of Galves- with in the severest terms. but the ton. The Coast Guard searched WAYNE DOLCEFINO: body never found. was you Do feel used him? week, Sylves- This 13 Undercover learned SYLVESTER TURNER: very was much and ter Foster alive Salamanca, alias, prison Spain, Yeah. under as I had far know. Fostier. Not as Christopher Lauren Fostier allegedly delivering arrested after been WAYNE DOLCEFINO: Spanish to a undercov- two kilos of cocaine Tur- Sylvester and Thomas Dwight Both agent. er Sylvester deeply involved ner were life attempt get Foster’s case Dwight Thomas was said to be million pay off 6.5 companies in Houston. asked closest friend here We the disappearance. in the wake Fos- dollars morning about Thanksgiving him hoax, a they it was all a know But did grave. return from the ter’s miraculous millions? to swindle scheme DWIGHT THOMAS: DWIGHT THOMAS: Prison, Spain? up something myself I wouldn’t No. set SPEAKER: that. crazy like Uh-huh. SPEAKER: DWIGHT THOMAS: know? Sylvester And Turner didn’t Prison, Prison, Spain? Spain? THOMAS: DWIGHT SPEAKER: fact, as No. would have—in No. We never Sylvester Clyde Foster. fact, dealt matter of we wouldn’t have if had known that he him all we THOMAS: DWIGHT ordinary, out of the doing something was you’re I know who of. I know speaking premise the law. beyond the nothing Spain. about prison WAYNE DOLCEFINO: SPEAKER: Thomas Turner did deal with But You don’t that he’s and he’s know alive Foster, learning he even after prison? target investigations of criminal DWIGHT THOMAS: estate early they pursued *25 No. significant money even after evidence al- in Foster’s death had scam possible WAYNE DOLCEFINO: ready surfaced. We found Thomas at his home in Inwood his introduced Foster to Dwight Thomas Forest, a mayoral home he shares with Turner, friend, attorney early in Sylvester Sylvester home candidate Turner. It’s the year, Turner And June leasing city has Turner been inside Foster; timing up will for drew plans run for limits since he announced interesting. news mayor. The candidate claims the 18th, indict- him, Sylvester Foster was On June about Foster was news too. for grand jury federal by a Houston ed SYLVESTER TURNER: 19th, fraud. On massive credit card June years than guy That died more five or six the will in Turner’s sign rushed to ago. office, day for boat leaving the next a sail SPEAKER: Gulf, what friends called trip despite fear of water. He’s not dead. indictment, 22nd, after the days nine June TURNER:
SYLVESTER will, up Fos- drawing after three mean, I all know. that’s—he As far we the boat in another falls off supposedly ter went overboard. Curious? Get wake and drowns. boat’s SPEAKER: acci- In the before bizarre this: weeks Spain. inHe’s dent, an emergency for applied Foster had bought luxury several cars passport, TURNER: SYLVESTER attached, life policies insurance and who had told authorities Foster was alive. amassed millions in life insurance cover- Thomas denies he was part any scam. age. DWIGHT THOMAS: Despite signs something fishy, Syl- No. No. No. No. No. Undoubtedly no. vester began legal get effort to WAYNE DOLCEFINO: the millions in money released Sylvester Turner pursued the estate case friend, get Thomas, mutual Dwight year, judge for until a removed him from appointed as administrator over the estate. the case protest, over Turner’s citing con- Thomas at sought first denied he control of flicts of interest. In November of Foster’s estate until we told him about Turner $28,000 tried to collect more than court documents we had viewed. in legal fees from the still unsettled estate
DWIGHT THOMAS: for rejected. his work. The bill was was, The deal of passed after he away, I Thomas gained never control of the estate. found out that I was administrator of the And one of nine insurance companies estate. paid any ever off money Foster’s death. money And that went to his father. The WAYNE DOLCEFINO: mayoral candidate questions the timing of fact, petitioned Thomas the court to he, too, the revelations and claims was a become administrator. We then asked victim, not part any conspiracy to con- him why the evidence didn’t him make ceal European get-away. Foster’s suspicious. SYLVESTER TURNER: DWIGHT THOMAS: Sylvester Turner is the one that’s been left We looked into that. I didn’t really know- with the bill. aetually, really I didn’t want get too WAYNE DOLCEFINO: deeply involved it because I didn’t know true, ifBut that’s then what going was on. duped by overwhelming evidence and SYLVESTER TURNER: at least two legal clients with close ties to There have been times we made out a will one of his closest friends. they individuals and die for various SYLVESTER TURNER: reasons shortly you thereafter. And look You told me the man is a liar. The man at it and you say, know, well-you try ought with, to come back here and be dealt put together the circumstances which it If, fact, is, if that’s the case. then he *26 mean, come about. I happen. it does ought to be dealt with in the severest of WAYNE DOLCEFINO: terms. Turner also tried to block questioning of a SPEAKER: case, female friend of Foster’s in this youDo feel used him? Batura, Christina a promised woman a SYLVESTER TURNER: money
share of the in the will. Batura Yeah. years died two in ago an Hawaiian com- crash, plane muter and WAYNE Secret Service in- DOLCEFINO: vestigators now confirm they found letters fully Turner claims he cooperat- pictures and proved that Batura knew ed investigations with all of the into Fos- alive, Foster was as she tried to collect on ter’s disappearance, but at least in- three death, his and Turner helped her. vestigators very close to this case tell us Dolcefino, that’s simply Wayne not true. And investigators say they have state- Eyewitness News. friend, ments that Dwight Turner’s close Thomas, threatened at least one witness BOB BOUDREAUX: public of interest. As
about matters
demonstrates,
analysis in this case
Court’s
Now,
Sylvester Turner called a
tonight,
subject of
any
favorable to the
almost
fact
story
as
news conference
attack that
report, but
from its broad-
a news
omitted
false, untrue,
factually
misleading.
and
cast,
person
a
could
reasonable
cause
TURNER:
SYLVESTER
better,
differently,
perhaps
think
and
I
of this
have looked at the facts
When
thus, any
omis-
subject;
such
about
them,
you look at
I think
case and when
standard,
sion,
under the Court’s
will
you
conclude that this
an all-time
was
finding
a
that the broadcast
support
politics.
in
And I
low Houston
resent
view,
juxtapo-
or
my
an omission
false.
campaign,
fact
that five
before
a
a
from broadcast about
sition
facts
type
being
these
assertions are
a
figure
support
finding
cannot
public
my
by anyone
made
with reference to
absent clear and
the broadcast was false
my integrity.
character and
that but for the omis-
convincing evidence1
juxtaposition
person
BOB
sion or
a reasonable
BOUDREAUX:
opinion
had a
of the
would have
better
story
Turner claims the
hand-
was
figure.
public
Bob
by opponent
to Channel 13
delivered
campaign,
Lanier’s
within the last
that a
disagree
I do not
with the Court
hour,
campaign
Lanier
reacted.
every
may
false in
even if
report
import
be
true, and that
statement made is itself
CRAIG VAROGA:
report
such a
should be actionable. Omis-
I think
time
every
it’s ridiculous that
distortions,
sions, half-truths,
and innuen-
story
newspaper
there’s a
in
on TV
report
outright
can make a
as false
do
Sylves-
questions
that raises serious
about
may
True
be made in a
lies.
statements
record,
public
ter Turner’s
he blames
not create a truthful
context
that does
the Bob Lanier campaign.
if
had
impression.
example,
For
KTRK
BOB BOUDREAUX:
Judge
was in-
reported that
Hutchison
Reporter Wayne
Dolcefino
Channel
scam with-
possible
volved
a
story.
stand
adding
was
out
that his
involvement
in which there was
HECHT,
presiding over
case
concurring
part
Justice
scam,
report,
evidence
an insurance
dissenting
part,
concurring
true,
completely
while
would create
judgment.
judge’s
involve-
impression
false
The
holds in
II of
opinion
Court
Part
its
ordinary
was
An
listener
improper.
ment
may
that a
news
jury
find that
television
be
“involved”
expected
parse
cannot
report
figure
critical of a
was false
public
judge
finely enough to conclude that the
because it omitted facts that could have led
job.
can
merely doing
media
viewer
adverse
a reasonable
to form less
how
can be woven to
appreciate
well
words
figure.
impression
Such
any
injure
making
mislead and
without
measuring
lenient
standard
evidence
statement,
prospect
and the
of liabili-
false
falsity
person
a reasonable
—whether
no
poses
for such conduct
threat
ty
thought
report any
a news
less
could have
legitimate discourse.
if
facts
public figure
to a
damaging
other
*27
Here,
Tur-
reported
broadcast
that
included—is inconsistent with
the
had been
was
involved in the
defamatory
“deeply
rule
a
is not
ner
the
that
statement
true,
life
attempt
get
and the
substantially
if
is
and
Foster case
significantly
off 6.5 million
companies
pay
open
vigorous
and
discourse
threatens
and
falsity mut be shown
clear
1. See
v. Con
whether
Harte-Hanks Communications
evidence),
naughton,
2678,
U.S.
n.
109 S.Ct.
convincing
and the
cited
cases
(1989) (noting, but
have of was of information Thomas administrator misled omission estate, trying explaining thinking Foster’s without into that Turner scam, independent personally Thomas had been named benefit from an insurance executor in Foster’s will Turner’s is it this reasonable viewer clear *28 2. 3. at 118. Ante at 118. Ante think- the viewer’s if addi- could have influenced think of Turner the would better rule, him Tur- a that con- persuaded report information this ing. tional Under only a friend unknowingly helping ner was but true facts but omits some nothing tains view, substantially seam? In the Court’s perpetrate likely less to be facts is much report jury for to have found that the the single incorrect statement. true than a false, necessary was all that is is that any report on a com- virtually news Since person to was for a possible reasonable deter- subject involves some editorial plex might thought less of Turner than he have what to what to include and mination of if facts. have he had known the omitted exclude, report may the be the threat that by false is increased finds found to have been only other omission the Court The is but test uses this case. misleading really not an omission the the Court report the about rather confusion the falsity, for combined The test Court’s will up Turner drew Foster’s whether malice, the test actual makes high for days or three to four weeks before three Ac- strikingly incongruous. its conclusions died. The fact that Turner worked Court, Turner as cording legal the acted will Foster’s for weeks instead of friend, Thomas, a long-time counsel for for a reason- enough, says, was the Court Mend, inadvertently fur- for Thomas’s him. thought viewer to have better of able thering insurance scam that Turner inconsistently, con- Somewhat Court nothing By omitting himself knew about. not average cludes that an viewer would aspects probate technical of the facts about have cared whether the involved scam $6.5 report, KTRK and proceeding from their $875,000. Misstating million or possible made it for a reasonable Doleefino by amount involved a factor of seven could knew of viewer to think that Turner misleading; misstating not have been But, himself. scam and stood to benefit period time Turner worked on the will concludes, reporter the Court veteran misleading. My point same factor was lawyer appreciate not and did not simply is that if the for standard determin- significance doing; he was what ing falsity nothing is more than what story leaving out simply bungled al- thought, reasonable viewer could have key part And had those facts been facts. can any pass. most omission average it is that an report, possible of the A statement need true absolutely not be appreci- non-lawyer viewer—also a with no defamation; liability avoid substan- significance added infor- ation law, tial is enough.4 truth Texas Under might not have been as critical of mation — deciding test “[t]he [a used whether is Turner’s conduct. This a crooked fur- substantially is true statement] involves to plough. row de- alleged consideration of whether the figures Public criticized in the famatory damaging statement was more that the media press frequently complain in the plaintiffs] reputation, mind of [the story the whole and that had has told listener, average a truthful state- than so, they would have in a appeared it done ment would have been.”5 The Court low- view, light. In more favorable the Court’s ers determining the bar for whether protected adequately free discourse is facts makes a juxtaposition omission (what complaints as the long from such media report substantially less than true false”). thereby plausibly negligence can claim “substantially Court calls Court, proof of actual malice. This is a defeat inquiry, according relevant to the approach guarantying tortuous funda- report damag- not whether the was more simply require I ing complete than a would mental freedom. more statement been, any report fact that a claim that a is false because have but whether omitted added). Jacobs, (emphasis 15-16 5. Id. at McIlvain v. 794 S.W.2d (Tex. 1990). *29 134
of the omission
juxtaposition
of facts be
the
credibility,
witnesses’
weight
the
proved by clear and convincing
given
evidence.
to their testimony. Benoit v. Wil
son,
273,
792,
150 Tex.
239 S.W.2d
796
I would
proof
hold that the
falsity
(Tex.1951).
may
The court
not substitute
case,
this
as well as
proof
of actual
findings
its
and conclusions for that of the
malice, is insufficient. Accordingly, I con-
Benoit,
jury.
I. APPLICABLE LAW
WFAA-TV,
McLemore,
ed.
Inc. v.
978
op
A. Standard
Review
568,
(Tex.1998).
S.W.2d
573
To establish
In cases implicating
malice,
the First Amend-
actual
public
figure
prove
must
ment, federal constitutional
law requires
the defendant made the statement
appellate courts to independently examine with “knowledge that it was false or with
the whole record to
judg-
insure that the
disregard
reckless
of whether it
false
ment does not improperly
upon
Times,
intrude
or not.” New York
376
U.S.
expression.
free
Corp.
279-80,
Bose
v.
710;
Consumers
84 S.Ct.
Huckabee v. Time
U.S., Inc.,
485,
Union
510-11,
Co.,
466 U.S.
413,
Warner Entm’t
19 S.W.3d
420
1949,
(Tex.2000).
104
(1984);
S.Ct.
135
mind,
II. ANALYSIS
plaintiff
state of
a
the defendant’s
evidence
through objective
prove
can
entire record and
reviewing the
After
circumstances.
publication’s
about
review, I
standard of
applying
proper
160,
Lando,
153,
99
v.
441 U.S.
Herbert
convincing
is
there
clear and
conclude that
(1979);
1635,
115
Bose
S.Ct.
60 L.Ed.2d
Here, Turner’s
of actual malice.
evidence
Union,
189,
692 F.2d
Corp. v. Consumers
shows
clearly
convincingly
and
evidence
485,
(1st Cir.1982), aff'd,
196
466 U.S.
104
facts to
manipulated the
that Dolcefino
1949,
(1984); Frank
S.Ct.
ther, story politi- was not suggesting
cally story made the falsely motivated if
more than had dis- credible Dolcefino Perry’s with the Lanier
closed connection
campaign.
Moreover,
following
sto-
Brittany
HOLBERG,
ry,
the true
Dolcefino continued
hide
Marlowe
a/k/a
connection,
Johnson,
Brittany
political
facts
even when
of
Marlowe
source,
Appellant,
produced
non-political
KTRK
Wilson,
Clyde
story’s
as the
“real source”
v.
castigated
apologizing
of Texas.
The STATE
Although
Lanier
campaign.
to the
directly
on the
conduct does not
bear
73,127.
No.
issue,
at
it is additional evi-
broadcasts
Texas.
Appeals
on
deceptive pattern
dence of a
Dolcefino's
Court
Criminal
supports
jury’s finding.
See
part
29,
Nov.
2000.
Co.,
Herron v.
Broad.
109 Wash.2d
KING
7,
(1987),
Feb.
Rehearing
746 P.2d
Denied
clarified
rehearing, 112
III. CONCLUSION reportage
I recognize “vigorous for the campaigns necessary is
political democratic insti-
optimal functioning our history of indi- and central our
tutions Harte-Hanks, 491 U.S. at liberty.”
vidual
But a calculated fal-
sehood, midst a heated inserted into the unalterably can distort campaign,
political “For process of self-determination. ... once at a known lie
the use of gov- of democratic premises
odds with