# Libel by Fiction? Or, Did A Judge Really Shackle a 6-Year-Old? **URL:** \ **Category:** Great Debates\ **Created:** [December 19, 2003, 2:42pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968 "2003-12-19T14:42:14Z")\ **Posts on this page:** 7\ **Page:** 4
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 19, 2003, 10:10pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/61 "2003-12-19T22:10:32Z")
> [@](#): > > \*Originally posted by minty green \* > **Just because the Fort Worth Court of Appeals says it doesn’t make it so. As a matter of historical fact, it was a freakin’ blurb, either at the bottom of the page or in a small column to the side (I can’t remember which, but I remember the story from when it was published).** I understand that Appellate Courts may get the facts wrong on occasion, especially with the hacked up language of the opinion on Westlaw. However, it’s the only factual description I’ve seen, so I relied on it. Not that I doubt your recollection of an article published over four years ago, but do you have something other than that for me to go on in forming my opinion? > [@](#): > > \*Originally posted by minty green \* > \*\* The question should never have been submitted to the jury. \*\* Correct me again, if I’m wrong, but I don’t think it ever went to the jury. I think it was a ruling on the motion for summary judgment that is being appealed. And thanks for the information about the Observer, **Mtgman**. It appears it is the same type of alternative newspaper that the Chicago Reader is, except the Reader always has a few more factual stories. And I appreciate any information you can get that would contradict the Appellate Court ruling. On preview, my apologies, **Gaudere**. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 19, 2003, 10:26pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/62 "2003-12-19T22:26:12Z")
Sorry, I was under the impression this had already gone to the jury. I should have realized it was a ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 19, 2003, 10:28pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/63 "2003-12-19T22:28:50Z")
Sorry, I was under the impression this had already gone to the jury. I should have guessed it was an interlocutory appeal under CPRC § 51.014(a)(6). ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 19, 2003, 10:39pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/64 "2003-12-19T22:39:36Z")
As penance for my post and a half, here’s a link to [the Texas Supreme Court briefs](http://www.supreme.courts.state.tx.us/ebriefs/files/20030019.HTM). ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [December 19, 2003, 11:00pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/65 "2003-12-19T23:00:28Z")
Poked at Nexis a bit and found this. Nothing as useful as a scan of the page, but some more details on how the article was presented. I gotta say, they sure pulled this one with a straight face. I’m not sure what the fact-finders came up with, haven’t found any of their statements, but I may poke it a bit more to see if I can find a transcript or two. > [@](#): > > Copyright 2003 ALM Properties, Inc. All Rights Reserved. > Texas Lawyer > > December 8, 2003 > > SECTION: NEWS; Vol. 19; No. 40; Pg. 1 > HEADLINE: Case of First Impression Involving First Amendment; > Newspaper Says Article Was Satire, a Form of Free Speech > > BYLINE: John Council > > … > The article was so outrageous that the average reader could not have taken it seriously, the lawyers say. But Mike Whitten, a lawyer for Isaacks and Darlene Whitten, says some readers did believe the article was true; therefore, they allege it was libelous. > > The article, over which a box with the word “News” in it was placed, concerned the arrest of fictional 6-year-old Cindy Bradley for writing a book report on Maurice Sendak’s classic children’s book “Where the Wild Things Are.” According to depositions in the case, the genesis of the article was an actual October 1999 incident in which Darlene Whitten ordered the detention of a 13-year-old who allegedly wrote a violent-toned essay and turned it in at school. > … > “The ultimate message that the Dallas Observer was trying to convey was that the actions the officials made were misguided,” argued Jim Hemphill, a partner in Austin’s George & Donaldson, who represents the Dallas Observer. "That is an opinion. And that is protected. " > > But Mike Whitten, a partner in Denton’s Whitten Law Firm, argued that the Dallas Observer went too far because numerous readers allegedly believed the article was true. Whitten says both of his clients received nasty comments from people who were outraged by it. > > “I think if you publish a false statement of fact about some-one and it’s believed by a reader, then that’s libelous whether [you label it satire or it’s in the driest journal,” Mike Whitten [argued. [ [Fact or Fiction? > … > “How many 6-year-olds do you know that are familiar with Salinger?” asked Justice Scott Brister, the court’s newest member who was appointed by Gov. Rick Perry last month. > > “Not too many,” Mike Whitten replied. "I don’t know how many readers know Salinger. " > > Also central in the justices’ questioning was the application of New York Times v. Sullivan to the Dallas Observer article. That seminal 1964 U.S. Supreme Court ruling found that public officials must establish “actual malice” 00 prove that a publication knew its article was false or published a story with reckless disregard for whether it was true or false – if they are to win libel cases. > > Justice Harriet O’Neill commented that it seemed clear that an article that quotes a 6-year-old who is familiar with the works of Salinger and Twain is likely the product of satire. “So how do you get to actual malice?” O’Neill asked Mike Whitten. > > Mike Whitten replied that the article must be taken in context an award-winning journalist who’d never written satire before wrote it. And it was labeled under a “news” heading, Mike Whitten replied. Based on other info in the article I can confirm that the case has not gone before a jury. The unique nature of this article within the Observer’s body of work(as I demonstrated on the previous page, it seems to their only “Satire” piece) along with the info about the author being a prize-winning author being printed alongside the article. If the tongue was in the cheek it wasn’t indicated by the presentation. The determination of it being satire or not is going to be with the individual reader. It is really a borderline piece. Enjoy, Steven ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 19, 2003, 11:33pm UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/66 "2003-12-19T23:33:07Z")
Having skimmed through the parties’ briefs, it looks like “actual malice” is a winner here. The First Amendment, as applied by the U.S. Supreme Court in cases such as the famous _New York Times v. Sullivan_, requires that public-figure defamation plaintiffs prove the defendant published the defamatory statements with “actual malice”; that is, the defendant must have either _known_ the statements were false or have acted with reckless disregard for their truth or falsity. Obviously, that traditional formulation does not work in the case of satire/fiction, where the statements are invariably not true. (Duh. That’s what separates fiction from non-fiction.) The Observer’s lawyers argue persuasively that in the case of fiction, the proper constitutional standard for “actual malice” is whether the defendant either knew they would be taken as true by the audience, or that they did care whether it would be taken as true. Given the obvious internal indicators that the story was satirical, there’s no way, as a matter of law, that the plaintiffs can show actual malice. Reversed and rendered. And on a simple matter of fact, the Observer’s brief also points out that the complaints received by the Judge Whitten in response to the satire appear to be in response to an _email glurge_ version of the story that _omitted_ most of the obvious clues that showed the original to be satire. Also, the Dallas radio host who went on the air to discuss the story when he thought it was true ended up quickly correcting himself and stating that he “had egg on his face” when he read the entire story and realized it was satire. Thus, it looks to me like the plaintiffs’ evidence that people really did take the story to be true is extremely weak. Maybe not weak enough to lose on summary judgment, but certainly weak enough that anyone in the thread claiming people really did receive it as true ought to qualify those statements. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [December 20, 2003, 12:39am UTC](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968/67 "2003-12-20T00:39:03Z")
Just FYI, because I have been a fairly active participant in this thread, I’ll be on vacation next week and I’m not sure how often, or if at all, I’ll be checking the boards. So if you’ve got any questions or need any clarifications on anything I’ve posted, please be patient. Thanks. Enjoy, Steven [Previous page](https://boards.straightdope.com/t/libel-by-fiction-or-did-a-judge-really-shackle-a-6-year-old/219968.md?page=3)