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

[rsa]

LHoD look at Astro’s link under the section “The First Amendment protects satire and parody”.

[Hamlet]

*Originally posted by rsa *
**Is it too much too ask that we try to stick to “true” facts, not invented or imagined ones?

I looked for support that this story was picked up by numerous secondary news outlets and found none. Oh wait, I see that Hamlet has now kindly provided a “cite”. I guess he believes that a student newspaper and a local radio station constitute “numerous secondary news outlets”. I will leave to the reader to evaluate his “fact”.

**

What the hell crawled up your behind and died? And did it choke off the oxygen to your brain while doing it? Another newspaper and a radio talk show host took the story as true. As did many other people:

"After publication of the Madness article, complaints about Isaacks and Whitten were received and posted on the paper’s website, accusing those officials of incompetency and calling for their dismissal from office based on their conduct as described in the article. Readers and other news media contacted Isaacks and Whitten directly, expressing anger and criticism of the described conduct in the article as being “sickening” and “stupid,” insisting that Judge Whitten be removed from the bench, and urging that both should be “ashamed” of their conduct.

*Originally posted by rsa *
As has been pointed out by several Dallas area members, the DO is not primarily a hard news paper. There is a feature article each week which is factual or investigative in nature and a city politics column, but other than that it is mostly restaurant, movie and music reviews.

Of course the fact the article published as the lead story under the heading of “News” in a section ordinarily devoted to hard-hitting investigative news, was of no consequence. In addition, the article included quotations from the judge, the prosecutor, a bailiff, and the ACLU, which, as the Supreme Court has pointed out “[quotations] may be a devastating instrument for conveying false meaning.” They also used a photograph, a nearby story included a reference to the author of the article as an award winning journalist, it referenced the earlier true incident, and had absolutely no disclaimer at all. All of which make it a debatable issue on whether it was obviously satire, which was all I was pointing out. Did I kick your dog or something to piss you off so?

*Originally posted by rsa *
**Look, if you guys don’t think newspaper’s shouldn’t insult judges, just say so instead of making shit up. **

I didn’t deliberately make shit up, and, if I actually gave two shits about what you think, I’d take you to the pit for saying I did.

[Left_Hand_of_Dorkness]

rsa, I read that – that’s actually why I was asking my question. That article made it sound as if satire didn’t need to be clearly labeled; I was confused as to why people were making a big deal out of whether it was clearly labeled as satire at the time.

Daniel

[minty_green]

*Originally posted by Hamlet *
Of course the fact the article published as the lead story under the heading of “News” in a section ordinarily devoted to hard-hitting investigative news . . .

This is simply not true. The satirical story was basically a blurb at the bottom of a page, part of a weekly column usually given over to describing various stupid and/or outrageous things that local leaders have done. It’s not a “lead” story by any means, and it’s certainly not “hard-hitting investigative news.”

[Bricker]

*Originally posted by minty green *
**The application of the First Amendment is, of course, a matter of law. I see nothing that raises a fact question regarding whether a reasonable person could see that story as an assertion of fact instead of obvious satire. **

Pretty much I know about this subject is a dimly remembered lecture on NY Times v Sullivan and St. Amant v. Thompson in school. But are you saying that there was no issue of fact here (apart from the obvious Did the defendant publish these words? one)? It seems to me a mixed question of fact and law - the appeals court could obviously decide that no reasonable fact-finder could reach the conclusion on a given record, but the conclusion itself has to involve the fact-finder answering the “what a reasonable person thinks” question in the first instance.

Or am I missing something blindingly obvious?

[minty_green]

*Originally posted by minty green *
The application of the First Amendment is, of course, a matter of law. I see nothing that raises a fact question regarding whether a reasonable person could see that story as an assertion of fact instead of obvious satire.

I should have added that this is pretty much in keeping with the Texas Supreme Court’s heightened standard of review in defamation cases involving public figure plaintiffs. Here’s how they review the “actual malice” requirement, as described in Turner v. KTRK Television, 38 S.W.3d 103 (Tex. 2000):

Federal constitutional law dictates our standard of review on the actual malice issue, which is much higher than our typical “no evidence” standard of review. See Bose, 466 U.S. at 510; Doubleday & Co. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984). Under this standard, we must independently consider the entire record to determine whether the evidence is “sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’” Bose, 466 U.S. at 511. Because the trier of fact has the ability to examine the witness’s demeanor, we must defer to its credibility determinations. See Harte-Hanks, 491 U.S. at 688; see also Parkins v. Texas Farmers Ins. Co., 645 S.W.2d 775, 778 (Tex. 1983). Once we have resolved credibility questions in favor of the jury’s verdict, however, we must independently evaluate “‘the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect.’” Harte-Hanks, 491 U.S. at 688 (citations omitted)(omissions in original). It is not enough for us, therefore, to determine that a reasonable jury could have found that Dolcefino acted with actual malice. Beyond that, we ourselves must conclude that the evidence of malice is clear and convincing. See Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1252 (9th Cir. 1997).

[Dewey_Cheatem_Undhow]

*Originally posted by minty green *
**The application of the First Amendment is, of course, a matter of law. I see nothing that raises a fact question regarding whether a reasonable person could see that story as an assertion of fact instead of obvious satire. **

Why not? That question is a threshhold fact issue. I admit I haven’t delved deeply into this, but I did skim Hustler Magazine v. Falwell after reading the OP. That case involved a claim for intentional infliction of emotional distress, not a claim for libel, because the libel claim had already failed at trial level:

The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” 797 F.2d, at 1278, and in accordance with our custom we accept this finding.

Sure sounds to me like the reasonableness of interpreting the article as factual is a question for the jury.

[Dewey_Cheatem_Undhow]

…and I see you’ve answered my question before I even asked it. Shoulda previewed, I guess.

[Hamlet]

*Originally posted by minty green *
**This is simply not true. The satirical story was basically a blurb at the bottom of a page, part of a weekly column usually given over to describing various stupid and/or outrageous things that local leaders have done. It’s not a “lead” story by any means, and it’s certainly not “hard-hitting investigative news.” **

Here is the exact quote from New Times, Inc. v. Isaacks, 91 S.W.3d 844
Tex.App.-Fort Worth,2002, as it appears on Westlaw:

Moreover, the use of the photograph and the use of quotes for fictional statements are not the only article is both indexed and published as the lead story under the heading of “News” in a section ordinarily devoted to hard-hitting investigative news."

Here is the complete paragraph from the opinion, once again, as it appears on Westlaw:

Isaacks and Whitten also point to the article’s use of fictionalized quotations attributed to relevant individuals who would likely make some kind of statement in this situation as significantly adding to the realism of the article. The Supreme Court has recognized that “quotations may be a devastating instrument for conveying false meaning.” Masson, 501 U.S. at 517, 111 S.Ct. at 2433. Here, quotes are attributed to the bailiff, the presiding judge, the district attorney, former Governor George W. Bush, and a representative of the ACLU. A reasonable reader could conclude that these were the appropriate people to comment on this issue and that their quoted comments were real. Moreover, the use of the photograph and the use of quotes for fictional statements are not the only article is both indexed and published as the lead story under the heading of “News” in a section ordinarily devoted to hard-hitting investigative news. Alongside the article there is a column noting that the article’s author had recently won a Katie Award for best general news story, thereby adding credence to her credentials as a news reporter. Additionally, the article interweaves references to an actual incident in which a minor from the same city was detained for a terroristic threat stemming from a homework assignment no less than a week prior to this article’s publication. Further, the Dallas Observer fails to provide any kind of disclaimer or note to the reader that the article was a parody or satire.

Now, maybe I’m misreading, because the Westlaw opinion has some hacked up language, but that’s what I read.

[Left_Hand_of_Dorkness]

Hmm. I can barely see how a reasonable person would think that the Bush quote (“Parents must understand that zero tolerance means just that[: w]e won’t tolerate anything” could be a real quote. But would a reasonable person really think that a judge would say, “it’s time for us to stop treating kids like children”? That the ACLU would say, “Jesus H. Christ, are you people nuts”?

Poppycock! These quotes are absurd on their face, outlandishly ridiculous quotes. NOTHING about them suggests credibility.

It seems to me that the more important standard is whether the author intends to fool people, and in this case, it’s clear that the author doesn’t: the author indisputably intends for people to take the piece satirically. Otherwise, they’d come up with less ridiculous quotes, wouldn’t mention an organization called GOOF, etc.

Daniel

[Dewey_Cheatem_Undhow]

Left Hand: the standard can’t be what the author intended, because then anyone could avoid libel suits by just saying “Hey, I was just kidding” The standard necessarily must be what a reasonable person would think.

You intuitively grasp this – your post is basically saying that no reasonable person could consider the article to be serious (and you’re persuasive in that regard). But couching the standard in terms of the author’s thoughts muddies the issue.

[Left_Hand_of_Dorkness]

Dewey, I sorta see what you’re saying, but doesn’t the law consider intent all the time? If I hit someone out of anger, don’t I get punished less than if I hit them with the intent to kill them?

In such a case, of course there’s a reasonable person standard, but I thought it was that a reasonable person would conclude that the perpetrator intended to do X. In this case, it seems like our “reasonable person” standard should be not what a reasonable person concludes after reading the article, but rather what a reasonable person concludes about the author’s intend on analyzing the full facts of the case – a subtle but important distinction.

Not, mind you, that I’m basing this in any actual knowledge of the law (which I’m sure comes as a total surprise ) – I’m just suggesting what I think WOULD be good law.

Daniel

[toadspittle]

Dewey, I sorta see what you’re saying, but doesn’t the law consider intent all the time? If I hit someone out of anger, don’t I get punished less than if I hit them with the intent to kill them?

Of course, if you DO kill the person, even if you didn’t intend to, then you get charged with manslaughter/murder, not just assault/battery. Consequences have … um … consequences.

[Cervaise]

*Originally posted by IzzyR *
But if a whole lot of people didn’t get the joke, then it is clearly established that a reasonable person might interpret it that way.

But doesn’t that say a lot more about the judge than it does about the article? If reasonable people can take the article at face value, and believe that the judge could legitimately carry out such a ludicrous action, then doesn’t it imply that reasonable people think the judge is a screaming loon?

On further reading, astro’s CNN link says exactly this. In order to argue their case, and assert that the average reader will accept without question the probability that the judge threw a tyke in jail for a Sendak writeup, plaintiffs will basically need to prove that said average readers find the judge capable of said outrageousness. In other words, if you already have a shitty public image, it’s hard to make it worse.

[Left_Hand_of_Dorkness]

Yes, toadspittle, I’m not denying that CONSEQUENCES are considered, merely that INTENT is also considered. Consider the guy who trips and falls out a window onto an innocent passerby; because he had no criminal intent (we conclude, based on admittedly fallible evidence), we do not charge him with the death of the passerby.

If someone has a criminal intent, my understanding is that consequences are determined when figuring out which crime to charge them with. Punch someone in the face, and you’re charged with battery; if they have a heart condition and die, you’re charged with manslaughter. But if you have no criminal intent, consequences don’t matter.

In this case, it seems that the intention of the author is important: if the author had no criminal (or tort in this case, I guess) intent, the author should be blameless, no matter what the consequences are.

Negligence is another matter, and I’m not sure how it enters into things. I don’t know if negligence has any place at all in discussing first amendment issues.

Daniel

[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).

Dewey, I did not mean for my quote from Turner to imply that the Texas Supreme Court would apply that standard of review for “actual malice” to this case, where the question seems to be whether a reasonable person could see the satire as an assertion of actual fact. I dropped it in just to show that they’re pretty serious about free speech and press claims. As for the jury/judge question, I’m not certain of the precise responsibility of each when it comes to this issue. I am, however, quite certain that the Observer story is so obviously satirical that, as a matter of law, no reasonable person could take it as an assertion of actual fact. The question should never have been submitted to the jury.

[Ike_Witt]

By any chance, has Laura Miller commented on this situation?

[Mtgman]

*Originally posted by Hamlet *
**Of course the fact the article published as the lead story under the heading of “News” in a section ordinarily devoted to hard-hitting investigative news, was of no consequence. In addition, the article included quotations from the judge, the prosecutor, a bailiff, and the ACLU, which, as the Supreme Court has pointed out “[quotations] may be a devastating instrument for conveying false meaning.” They also used a photograph, a nearby story included a reference to the author of the article as an award winning journalist, it referenced the earlier true incident, and had absolutely no disclaimer at all. All of which make it a debatable issue on whether it was obviously satire, which was all I was pointing out. **

Ok, one last time. If the Observer ever publishes “hard-hitting investigative news”, and it is true that they occasionally do, they have to put a disclaimer on the NEWS in the form of “No, we’re serious about this article, please take it seriously.” The default assumption from anyone familiar with the Observer is that it is a fluff paper with little to no “hard-hitting investigative news” content. As noted above they have one “serious” news piece per week. The “serious” news piece for that week was called Return to Sender and was about deportation of an immigrant due to what they considered INS ineptitude. Their other semi-serious piece for that week, their “feature” story, was called Day Trippin’ and was about day trading.

Bam, that’s it. That’s the sum total of their serious content for the week. Regular readers know this, and so do most others who are familiar with the paper. In the same vein that being in a recurring “satire” column would grant some defense to the article, in a publication where the vast majority is fluff, NOT being in one of the two “serious” article slots should mean something as well.

I have Lexis/Nexis access and if I knew how to use it I might be able to get some more specifics. A scan of the page would be faboo. I’ll poke it a bit.

Enjoy,
Steven

[Gaudere]

Hamlet

What the hell crawled up your behind and died? And did it choke off the oxygen to your brain while doing it?

[Moderator Hat ON]

Cool it, Hamlet.

[Moderator Hat OFF]

[Dewey_Cheatem_Undhow]

*Originally posted by Left Hand of Dorkness *
Dewey, I sorta see what you’re saying, but doesn’t the law consider intent all the time? If I hit someone out of anger, don’t I get punished less than if I hit them with the intent to kill them?

“Intent” doesn’t really factor into this equation. One is presumed to intend the natural and foresseable consequences of one’s actions. Publishing a fake piece that appears to a reasonable reader to be true damages the subject of that piece; that damage is a natural and foreeable consequence of publishing the piece.

Seriously, imagine if the standard rested on what the author subjectively thought about his piece. That would mean a newspaper could run a fake news story that, for all appearances, is totally believable and get off just by claiming it was a joke. “It’s just really dry humor, man; you must not have a good sense of humor if you don’t get it.”