Libel by Fiction? Or, Did A Judge Really Shackle a 6-Year-Old?

This one is real: a Texas county judge named Darlene Whitten ordered a thirteen-year-old named Chris Beamon jailed for five days. His crime was writing a Halloween essay about the shooting of a teacher.

The Dallas Observer published an article about the event.

Shortly afterwards, the Observer (and here’s where the fiction comes in) published another story, titled “Stop the Madness!” In this story, the Observer claimed that Judge Whitten also ordered a six-year-old girl shackled and jailed. Her crime, according to the Observer’s article, was submitting a book report on Maurice Sendak’s book “Where the Wild Things Are,” which advocated “…cannibalism, fanaticism, and disorderly conduct.”

This subsequent article was, as it happens, not true. The Observer intended it to be a parody of the original Beamon case, using hyperbole to make the point.

The judge was not amused. And, as it happens, the judge also had access to a free lawyer, in that she was married to attorney Michael Whitten. She demanded that the Observer retract their article and publish an apology.

The Observer posted the following notice in response to this demand:

Apparently believing that the apoloigy lacked any genuine remorse, Judge Whitten filed suit agianst the Observer for libel.

She won.

She won at trial, and at the apellate level, despite the newspaper’s First Amendment defense. The Texas Supreme Court is now hearing the case.

Is this a chilling attack on the First Amendment? Or a just victory for a wronged figure?

  • Rick

I’d have to say that running the article in a newspaper without some clear labelling as parody is astonishingly unwise. And it shouldn’t be done.

(I note that I might feel differently about a magazine…magazine’s and newspapers having differing editorial standards and public expectations.)

Clearly the retraction was smart-assedly done. But it DID serve the purpose of correcting the record on the issue. Though the ‘Not yet, anyway’ is an editorial comment without place in a retraction.

Still, the record has been set straight. I think Judge Whitten might be right to be upset…but to win in court could have a chilling effect on free speech down the road.

If the Texas SC upholds the judgement you can time this one to the USSC with a stopwatch.

I am exceedingly familiar with the Texas Supreme Court. It is very conservative, but also very protective of speech and press. They will reverse the lower court decisions. Guaranteed.

Seems like a clear cut case to me. Even public figures are protected against knowingly false stories. Unless it was obvious that the story was a parody, it seems like a knowingly false story to me. Apparently the judge (or jury) that heard the case determined that it was not obvious as a parody - I don’t think this can even be overturned on appeal (as it would be a finding of fact).

I don’t see the relevance of the subsequent correction. Even if it was a sincere and heartfelt correction, is there some law that no longer allows a lawsuit if there has been a correction? I would be very surprised if this were true. The plaintiff may opt to not sue if the defendant publishes a retraction, but this sounds like the option of the plaintiff, not a legal principle.

I’m pretty curious to know what the defense was, and what the basis for appeal was - I don’t see a First Amendment right to defame anyone you want.

(Of course, I’m not a big supporter of the First Amendment anyway - still, even under the rules of the First Amendment, I don’t see two sides to the issue.)

IF there was reason to believe that the story couldn’t be distinguished form a genuine news article then there may be something to it.
W/o having seen the article as presented in the paper, It’s hard to say.
OTOH, it seems a sign that the judge feels it was likely that someone would believe that about her. Which, to mo speaks volumes about the judge.

If the article was clearly a parody that any adult could recognize as such then this seems a tragic travesty.

The issue of damages interests me.

For the judge to win any damages, it seems to me she has to show that the article was read and believed by people, such that her reputation was damaged.

Ordinarily, it would seem the newspaper could point to the outrageous claims in the article and say, “See - this is so outrageous that it’s clearly false!”

In this case, though, the judge had already, actually, outrageously jailed a 13-year-old for writing an essay. So the
public would be likely to - or at least more likely to - believe the fake article’s claims. So in a sense, the public only believes the phony article is true if they already have a low opinion of the judge. If they already have a low opinion of the judge, how much lower did their opinion get as a result of the phony article?

  • Rick

I don’t believe they can do this. There are a lot of outrageous stories taking place and appearing in the papers all the time. Even if someone had never heard of Judge Whitten, I don’t think everyone would automatically dismiss the story as being false, if they saw it in the regular news section of the paper, where the story appeared.

The only real defense that they could put forth along those lines would be that they themselves have such a history of making up phony stories that no one would ever believe anything that they say. But I doubt if they’d want to make such a claim (or if it would hold up).

There are substantial differences between jailing someone (at a juvenile facility) for writing a threatening letter about an actual teacher and two classmates, and merely writing a book report about a children’s classic. Also in the age difference.

Also it appears that the judge was unaware that the letter was written as part of a classroom assignment - when this fact came out the kid was released.

I admit, it’s a tricky space to be in.

I’m not even sure they’d get by with an ‘absence of malice’ defense as there was clearly an element of malice in the story. If not actual ‘malice’ then certainly ridicule.

St. Amant v. Thompson, if I recall correctly, is a Supreme Court ruling that stands for the proposition that “actual malice” exists when the writer has subjective knowledge that the libelous statement is probably false. In this case, they have an admission that the allegedly libelous statement was made with certain knowledge of its falsity.

  • Rick

I thought the US Supreme Court found, when Jerry Falwell sued Hustler for a parody, that public figures were not entitled to relief from being parodied. IIRC, in theHustler case, Flynt admitted that he acted with malicious intent. But Falwell still couldn’t recover.

In the cited case, regardless of how hard or easy it may have been to discern if the judge was being parodied originally, certainly it must have been clear after the apology that it was meant as a parody, and therefore the judge would not be entitled to recover even if she felt the apology was insufficiently abject.

IOW, the apology was sufficient to establish that it was meant as a parody, not to salve the feelings of the judge. Thus the parodic intent was established, and there would be no right of the judge to be protected from being parodied, even if it hurt her feelings.

Or even her standing as a judge, which could be argued as the intent of a parody.


Shodan, I believe you are in error. In the case of the Falwell case, the courts found that the “ad” could not reasonably be interpreted as anything other than satire (among other things, it was labeled as such in the small print at the bottom of the page). In this case, that does not appear to hold.

It makes no difference if it is subsequently established that the intent of the writer was satire. What counts is how the article would appear to the reader.

The Falwell case is distinguishable, I believe, because the conduct imputed to Falwell was so outrageous that it was clear that the magazine was parodying Falwell - no reasonable reader would actually believe that Falwell had sex with his own mother in an outhouse. Falwell, as a public figure, had no protection from mockery.

In this case, the judge was damaged because the parody was not clear - in other words, it wasn’t that the newspaper was criticizing her, but that they were lying about her in a way that would be believed by their readership, knowing that that material was false even as they published it.

It’s unclear to me what effect, if any, the retraction has. I doubt it could be considered to completely erase the original damage. But I have no expertise in this area.

  • Rick

Nor I, beyond the institutional belief that a retraction of error, if the original error was honest and ‘absent of malice’, usually gets you by.

But that ain’t the case here.

Here’s the story itself, btw:

Pretty funny.

Well, this is sorta telling

I also feature this quote from a six year old:
" “Like, I’m sure,” she said. “It’s bad enough people think like Salinger and Twain are dangerous, but Sendak? Give me a break, for Christ’s sake. Excuse my French.” "
I’m unclear as exactly what kind of an idiot you’d have to be to conclude that this wasn’t a parody of some sort. Though I’m certain that you’d have to be some sort of an idiot.

Ok, can’t speak absolutely, but if they pick some sort of jury from the Dallas area then the Observer has a pretty strong defense already. The Observer is a free, alternative, publication. About 90% of its “content” is highly dubious already. The full-page ads for local tatoo parlors and large “X seeking Y|X|XX|XYYX|YY|YYX|other” sections make it fairly clear that if there is a story which seems too absurd to be true that there is a good bet it is actually untrue. They mingle this with actual reporting, but any reasonable person who is familiar with the publication knows to take it with a very large grain of salt. They do opinion pieces on things like “Generation X’ers” and feature the story of a former intern at the Dallas Morning News who claims she had her boyfriend over in the newsroom after hours and they had sex on co-workers desks.

If the determining factor in the case is deciding if the Observer was putting the article forward with a straight face, it should be noted that the Observer rarely every puts anything forward with a straight face. Occasionally they will champion some legitimate cause that no one else picks up, but for the most part they are considered a “fluff” publication that one only turns to with a serious intent if they’re looking for ads for alternative goods or services.

On the case of “obviously false” I’d think an article with these statements in it would be a candidate for such a defense.

I’m not sure exactly what it says about the courts which decided a “reasonable” reading of this article would decide it was not obviously false. Perhaps it just says they have very little faith in the average “reasonable” person in the Observer’s distribution area. I personally loved the part where they implied the DA was trying to find a way to charge her as a terrorist and keep her locked up until she was 18. If the Observer printed stuff like this more often I might read it on days when I’m looking for something other than a hot MMM threesome with tatooed biker transvestites.


As the Appellate Court said: “If an attempted satire or parody fails to make clear to its readers that it is not conveying actual facts, it may be defamatory…”. Given the fact that the numerous secondary news outlets reported the story as true, and that the Observer is a “hard news” paper and, presumably, not in the satire business, I think the Judge Whitten has a good case to argue.

The Observer should leave satire to the professionals

I’m unclear as exactly what kind of an idiot you’d have to be to conclude that this wasn’t a parody of some sort. Though I’m certain that you’d have to be some sort of an idiot.

That bears repeating, SimonX. So I repeated it.

Please tell me that you had not read the original DO piece when you came to this conclusion.

You also may not be aware that the Dallas Observer is an “alternative” weekly paper that is well known for being a bit less serious than the New York Times.

I thought the apology would be enough to establish that the original article was a parody, in which case the First Amendment protections would kick in. In other words, it would have the same effect as noticing that the article is an obvious parody.