Freedom Communications, Inc. D/B/A the Brownsville Herald and the Valley Morning Star v. Juan Antonio Coronado ( 2009 )

NUMBER 13-08-00628-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FREEDOM COMMUNICATIONS, INC.
D/B/A THE BROWNSVILLE HERALD
AND THE VALLEY MORNING STAR, Appellant,
v.
JUAN ANTONIO CORONADO, ET AL., Appellees.
On appeal from the 357th District Court of Cameron County, Texas.
OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Opinion by Justice Garza
In this interlocutory appeal, appellant, Freedom Communications, Inc. d/b/a the
Brownsville Herald and the Valley Morning Star (“Freedom”), challenges the trial court’s
denial of its motion for summary judgment. Freedom, a newspaper publisher, was sued
by appellees, Juan Antonio Coronado, Francisco Solis Ramirez, Roberto Rivera, III, and
Ruben Contreras, for defamation and invasion of privacy arising out of political
advertisements printed in Freedom’s newspapers in February and March of 2008. On
appeal, Freedom argues that the trial court erred by denying its motion for summary
judgment because: (1) the fair report privilege, as provided at common law and by statute,
bars the appellees’ suit; (2) the advertisements at issue are substantially true; and (3) the
appellees cannot establish the elements of invasion of privacy. We affirm.
I. BACKGROUND
This case concerns a full-page newspaper advertisement taken out by the campaign
of Peter Zavaletta, a candidate for District Attorney of Cameron County, Texas, in 2008.
Different versions of the advertisement appeared in two newspapers published by
Freedom—the Brownsville Herald and the Valley Morning Star—on the days leading up
to the Texas Democratic primary election on March 4, 2008.
The advertisement, first printed on February 26, 2008 in both the Herald and the
Morning Star, was prepared by an advertising agency hired by Zavaletta, and was intended
to criticize the record of the incumbent District Attorney, Armando Villalobos. The
advertisement stated in large type on the top of the page that “‘ARMANDO VILLALOBOS
IS AGAINST OUR CHILDREN’” (emphasis in original). The left half of the page contained
a chart entitled “Cases Involving Children (2007)” which consisted of five columns and 103
rows of data purportedly detailing the disposition of child-related cases by the Cameron
County District Attorney’s office in 2007. The chart included the following typical entries:
NAME OF CASE
CHARGE AGENCY DISPOSITION
ACCUSED NO.
... ... ... ... ...
Sexual Abuse of Francisco Solis Declined at
Intake Harlingen PD
Child Ramirez Intake
... ... ... ... ...
Physical Abuse of Declined at
Ruben Contreras Intake Harlingen PD
Child Intake
... ... ... ... ...
Sexual Abuse of Juan Antonio Declined at
Intake Brownsville PD
Child Coronado Intake
... ... ... ... ...
2
Sexual Abuse of Laguna Vista Declined at
Roberto Rivera, III Intake
Child PD Intake
... ... ... ... ...
The right half of the advertisement contained, in part, the following text:
The District Attorney must always protect those who are unable to
protect themselves, and always stand up for the weak, the defenseless, and
for those with no voice.
As these records from 2007 only establish, Armando Villalobos has
invariably stood against children who have been sexually abused, sexually
assaulted, or physically injured, and stood with those who would commit
such heinous crimes.
Armando Villalobos’ record proves he is morally unfit for public office.
....
As your District Attorney, my team and I will aggressively prosecute
these cases and insist that the convicted be incarcerated.
(Emphases in original.)
A second version of the advertisement ran in the Herald on February 29, 2008. This
version included only the initials of those individuals listed in the chart, such as the
appellees, whose cases were declined at intake by the District Attorney’s office. This
second version also included a table summarizing the information provided in the chart:
ARMANDO VILLALOBOS’ RECORD ON CHILDREN (2007)
DISPOSITION
Declined at Intake 77
Deferred Adjudication 17
Sent to Pretrial Diversion and Dismissed 2
Dismissed 4
Acquitted by Jury 1
Probation 1
Plea Bargained to Public Lewdness 1
3
Incarcerations 0[1]
TOTAL AMOUNT OF CASES 103
(Emphasis in original.) Below the summary table was a sentence further distilling the
information provided in the chart to its essence: “In 103 cases involving crimes against
children, Armando Villalobos couldn’t even send one defendant to prison!”
(Emphasis in original.) This version of the advertisement ran again in the newspapers on
March 2, 3, and 4.2
On March 18, 2008, Coronado and Ramirez filed suit against Freedom, Zavaletta,
and Yolanda De Leon, a board member of the Cameron County Children’s Advocacy
Center (“CCCAC”), asserting causes of action for invasion of privacy by disclosure, and
defamation. An amended petition was later filed on September 23, 2008, adding Rivera
and Contreras as plaintiffs and requesting exemplary damages.3 The petitions specifically
alleged that the advertisements contained false and defamatory statements of fact about
the appellees, that the defendants acted negligently and maliciously, and that the
appellees suffered injury as a result.
The petitions noted that the information contained in the “Cases Involving Children”
chart that appeared in the advertisements was excerpted from a “Case Disposition Report”
originally prepared by the District Attorney’s office. According to the plaintiffs, De Leon
obtained the report from the District Attorney’s office in her capacity as a CCCAC board
member, and she then provided the report to the Zavaletta campaign for use in the
1
The line m arked “Incarcerations” was printed in bold and in a larger typeface than the rem ainder of
the sum m ary table.
2
The version of the advertisem ent that ran on March 2 and 3 included the full nam es of all the
individuals listed in the chart, like the February 26 version, but unlike the February 29 and March 4 versions.
3
The Septem ber 23, 2008 am ended petition also added Edgar Israel Gonzalez and Juan Antonio
Hernandez as plaintiffs. Gonzalez and Hernandez were later non-suited. Zavaletta and De Leon, the other
defendants below, are not parties to this appeal.
4
advertisement.4 The plaintiffs contended in their petition that the information provided in
the report
is, pursuant to the laws of the State of Texas, strictly confidential, and is not
to be published for general or public information and every report (and the
information set forth in such report) remains confidential when it is
transmitted to the CCCAC pursuant to the laws of the State of Texas,
including Texas Family Code section 264.408.[5]
Freedom filed a motion for traditional summary judgment on April 11, 2008, arguing
that it is entitled to judgment as a matter of law on all of the appellees’ claims because,
among other reasons: (1) the advertisements are protected by the common law and
statutory fair report privilege; (2) the advertisements do not, as a matter of law, constitute
an actionable public disclosure of private facts concerning appellees; and (3) the
advertisements do not, as a matter of law, constitute an actionable defamation because
they are “true or substantially true.”6 Accompanying Freedom’s motion were affidavits by
Juan Avila, an employee of the Herald, and Maribel Villarreal, an employee of the Morning
Star. In their affidavits, both Avila and Villarreal stated that Zavaletta’s advertising agency
provided the Case Disposition Report to the respective newspapers in order to substantiate
the factual allegations made in the advertisements. Avila further stated that:
Neither I nor anyone employed by The Brownsville Herald had knowledge of
any inaccuracies in the political ads prior to the publication of the political
advertisements. Neither I nor anyone employed by The Brownsville Herald
had any reason to doubt the accuracy of any factual statements contained
in the political ads.
Villarreal made a similar statement in her affidavit with respect to herself and employees
of the Morning Star.
4
The appellees note that De Leon herself had lost to Villalobos in a prior election for Cam eron County
District Attorney.
5
Section 264.408 of the Texas Fam ily Code provides in part that any records used or developed by
the Departm ent of Fam ily and Protective Services are confidential and are not subject to public release, but
m ay be released to “law enforcem ent agencies . . . and other state agencies that provide services to children
and fam ilies.” T EX . F AM . C OD E A N N . § 264.408(a), (a)(1) (Vernon 2008).
6
Freedom later filed an am ended m otion for traditional sum m ary judgm ent on October 29, 2008,
m aking substantially the sam e argum ents.
5
Attached to the affidavits were copies of the Case Disposition Report, which bore
the name, letterhead, and seal of the District Attorney’s office. It is undisputed that the
information in the Case Disposition Report was used to compile the “Cases Involving
Children” chart that appeared in the advertisements. The Case Disposition Report, like the
chart in the advertisements, purportedly detailed the names, case numbers, charges, and
dispositions of cases involving children in Cameron County in 2007. However, the Case
Disposition Report included dozens more entries and provided more detailed information
regarding each case as compared to the chart in the advertisements. For example, unlike
the chart in the advertisements, the Case Disposition Report included columns entitled
“Victim Name,” “Jury/No Jury,” and “SANE Y/N.”7 Further, the report contained more
details regarding the reasons for the disposition of each particular case. For example,
Ramirez’s and Rivera’s entries in the report stated that their cases were “Declined at intake
due to insufficient evidence.” Similarly, Contreras’ entry stated “Declined insufficient
evidence.” Coronado’s entry in the report contained an even more detailed description of
the disposition of his case: “Declined on intake—while there is some evidence of
inappropriate activity, there is not sufficient evidence of any criminal activity to prove
beyond a reasonable doubt.”
The appellees filed a response to Freedom’s motion for summary judgment on
November 14, 2008, arguing in part that: (1) the statements in the advertisements are not
“true or substantially true” because they are “misleading” and “omitted material facts”; (2)
Freedom did not conclusively establish that its publication of the advertisements was
privileged; and (3) Freedom did not conclusively negate the elements of invasion of
privacy. Attached to the response were affidavits by the appellees, each stating as follows:
Contrary to the advertisements published by The Brownsville Herald and
Valley Morning Star that are the subject of this suit, I did not commit a
heinous crime, or other crime, against a child. I was not charged with the
7
“Jury/No Jury” referred to whether or not the particular suspect had a jury trial; “SANE Y/N” referred
to whether or not the victim had been exam ined by a sexual assault nurse exam iner.
6
crime set forth in the advertisements published by The Brownsville Herald
and Valley Morning Star that are the subject of this suit, or any crime against
a child. I was not a defendant in regard to a crime against a child.
The response also included an affidavit by Joe Krippel, a felony prosecutor with the District
Attorney’s office, stating that the “Case Disposition Report” used to create the chart in the
Zavaletta advertisement is a “confidential” report provided to CCCAC on a monthly basis
and is “not meant for public disclosure.”
On November 26, 2008, after a hearing, the trial court denied Freedom’s motion for
traditional summary judgment. This accelerated interlocutory appeal followed. See TEX .
CIV . PRAC . & REM . CODE ANN . § 51.014(a)(6) (Vernon 2008) (permitting appeal of an
interlocutory order that “denies a motion for summary judgment that is based in whole or
in part upon a claim against . . . a member of the electronic or print media . . . arising under
the free speech or free press clause of the First Amendment to the United States
Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73,” regarding
libel); see also TEX . R. APP. P. 28.1(a).
II. STANDARD OF REVIEW
We review a trial court’s denial of a traditional motion for summary judgment under
a de novo standard of review. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex.
2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137 (Tex.
2004)); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no pet.). To
obtain relief via a traditional motion for summary judgment, the movant must establish that
no material fact issue exists and that it is entitled to judgment as a matter of law. TEX . R.
CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Mowbray
v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet. denied). To meet this
burden, a defendant must either conclusively negate at least one of the essential elements
of a cause of action or conclusively establish each element of an affirmative defense.
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Tex. Monthly,
Inc. v. Transam. Natural Gas Corp., 7 S.W.3d 801, 805 (Tex. App.–Houston [1st Dist.]
7
1999, no pet.).
In deciding whether there is a disputed fact issue that precludes summary judgment,
evidence favorable to the non-movant will be taken as true. Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548-49 (Tex. 1985)). Evidence favorable to the movant, however, will not be considered
unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply
Co., 391 S.W.2d 41, 47 (Tex. 1965). Moreover, every reasonable inference must be
indulged in favor of the non-movant and any doubts resolved in its favor. Grinnell, 951
S.W.2d at 425 (citing Nixon, 690 S.W.2d at 549).
III. DISCUSSION
A. Fair Report Privilege
The fair report privilege is a common law defense to defamation rooted in First
Amendment jurisprudence. See U.S. CONST . amend. I; Cox Broad. Corp. v. Cohn, 420
U.S. 469, 490-91 (1975).8 The privilege protects the publication of defamatory matter
concerning another in a report of an official action or proceeding “if the report is accurate
and complete or a fair abridgement of the occurrence reported.” RESTATEMENT (SECOND )
OF TORTS § 611 (1977).9 “So long as the publication fairly and accurately reports the
contents of the law enforcement statement without embellishment, the publication is
8
The privilege will also serve as an affirm ative defense to an invasion of privacy claim . See
R ESTATEM EN T (S EC ON D ) OF T OR TS § 652G, cm t. a (1977) (“Under any circum stances that would give rise to
a conditional privilege for the publication of defam ation, there is likewise a conditional privilege for the invasion
of privacy.”).
9
The United States Suprem e Court has explained the policy behind the fair report privilege as follows:
[I]n a society in which each individual has but lim ited tim e and resources with which to
observe at first hand the operations of his governm ent, he relies necessarily upon the press
to bring to him in convenient form the facts of those operations. Great responsibility is
accordingly placed upon the news m edia to report fully and accurately the proceedings of
governm ent, and official records and docum ents open to the public are the basic data of
governm ental operations. W ithout the inform ation provided by the press m ost of us and
m any of our representatives would be unable to vote intelligently or to register opinions on
the adm inistration of governm ent generally.
Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92 (1975).
8
privileged, even if the underlying facts being reported on are untrue or defamatory.” Goss
v. Houston Cmty. Newspapers, 252 S.W.3d 652, 655 (Tex. App.–Houston [14th Dist.]
2008, no pet.) (citing Yohe v. Nugent, 321 F.3d 35, 43-44 (1st Cir. 2003); Mathis v. Phila.
Newspapers, Inc., 455 F. Supp. 406, 417 (E.D. Pa. 1978); Steer v. Lexleon, Inc., 472 A.2d
1021, 1026-27 (Md. Ct. Spec. App. 1984)). In other words, the “accuracy” of the
publication is determined not by comparing it to the actual facts, but to the law enforcement
statement upon which the publication is based. See Goss, 252 S.W.3d at 655; see also
Freedom Comm’ns, Inc. v. Sotelo, No. 11-05-00336-CV, 2006 Tex. App. LEXIS 5132, at
*9 (Tex. App.–Eastland June 5, 2006, no pet.) (mem. op.). Official statements from law
enforcement agencies will trigger application of the privilege. Goss, 252 S.W.3d at 655.
The privilege has also been codified in section 73.002 of the civil practice and
remedies code, which applies to any “fair, true, and impartial account of . . . an official
proceeding, other than a judicial proceeding, to administer the law” as well as any
“reasonable and fair comment on or criticism of an official act of a public official or other
matter of public concern published for general information.” TEX . CIV. PRAC . & REM . CODE
ANN . § 73.002(b)(1)(B), (b)(2) (Vernon 2005). A published account is “fair, true, and
impartial” under the statute if it is a substantially correct account of a government record.
See Tex. Monthly, 7 S.W.3d at 805 (citing Crites v. Mullins, 697 S.W.2d 715, 717 (Tex.
App.–Corpus Christi 1985, writ ref’d n.r.e.)). In determining whether the publication is
substantially correct, we consider whether the statement was more damaging to the
plaintiff’s reputation in the mind of the average reader than a correct statement would have
been. Id. (citing Crites, 697 S.W.2d at 717). If the effect on the mind of the recipient would
be the same, any variance between the actions charged and the actions proved should be
disregarded. Id. (citing Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 515 (Tex.
App.–Tyler 1987, writ dism’d w.o.j.); Crites, 697 S.W.2d at 717). That is, a publication that
exaggerates an official report is nevertheless substantially correct “if an ordinary reader
would not attach any more opprobrium to the plaintiff’s conduct merely because of the
9
exaggeration.” Id. at 805-806.
Where the facts are undisputed and the language used in the publication is not
ambiguous, the question of privilege is ordinarily one of law for the court. See Denton
Publ’g Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970); Christy v. Stauffer Publ’ns, Inc., 437
S.W.2d 814 (Tex. 1969); see also Sotelo, 2006 Tex. App. LEXIS 5132, at *8. However, the
language used in the advertisements at issue here was not unambiguous. We find that an
issue of material fact exists as to whether the privilege applies here.
Two primary considerations lead us to this conclusion. First, although the “Cases
Involving Children” chart that appeared in the advertisements faithfully reproduced parts of
the Case Disposition Report prepared by the District Attorney’s office, there were key
omissions made that obscured the full meaning of the report. Specifically, the chart omitted
the detailed information provided in the report regarding the specific reasons that the
appellees’ cases were declined by the District Attorney’s office, such as the lack of
evidence. Additionally, the chart suspiciously omitted some 34 entire entries that appeared
in the report, the majority of which corresponded to cases where the District Attorney’s
office had pursued and obtained convictions. Without this information, the reader of the
chart is justifiably left with the impression that the District Attorney’s office secured
absolutely no convictions for child-related offenses in 2007; the reality, however, was
different. Moreover, because the suspects who were actually convicted were omitted from
the chart, readers of the advertisement may have been left with the impression that most
of the individuals listed had actually committed the crimes they were accused of, which the
report did not explicitly state.10 In other words, the omissions may have made the chart
more damaging to the appellees’ reputations in the mind of the average reader than a full
10
In their response to Freedom ’s first issue, the appellees also note that the Case Disposition Report
contained “strictly confidential, non-public inform ation, which . . . rem ains confidential when it is transm itted
to the CCCAC” and are “not public records at all.” However, the fair report privilege statute does not require
that a governm ent report be “public” in order for the privilege to apply. See T EX . C IV . P RAC . & R EM . C OD E A N N .
§ 73.002 (Vernon 2005). W e need not determ ine whether the Case Disposition Report was in fact “strictly
confidential” because it has no bearing on the issue of whether the fair report privilege applies. See T EX . R.
A PP . P. 47.1.
10
and complete reproduction of the report would have been. See Tex. Monthly, 7 S.W.3d at
805 (citing Crites, 697 S.W.2d at 717).
Second, the language that appeared adjacent to the chart on the right half of the
advertisements was arguably misleading and unsupported by the information contained in
the Case Disposition Report. Particularly questionable is the paragraph that reads: “As
these records from 2007 only establish, Armando Villalobos has invariably stood against
children who have been sexually abused, sexually assaulted, or physically injured, and
stood with those who would commit such heinous crimes” (first and third emphases added;
second emphasis in original). An average, ordinary reader of the advertisement would
understand this paragraph to mean: (1) children have been sexually abused, sexually
assaulted, or physically injured in Cameron County in 2007; (2) the suspects listed in the
chart “would commit” the listed offenses against those children; and (3) the chart to the left
of the text “establish[es]” those facts. However, the Case Disposition Report prepared by
the District Attorney’s office does not explicitly support these facts. Nowhere does the Case
Disposition Report state that the listed suspects “would commit” the crimes of which they
were accused. Instead, the report merely recites the disposition of all child-related cases
in Cameron County, whether or not the cases turned out to be unsupported by evidence.
Indulging every reasonable inference in favor of the appellees, see Grinnell, 951 S.W.2d
at 425, we find that the advertisement “embellished” the Case Disposition Report in such
a way that it was “more damaging” to the appellees’ reputations than an unembellished
report would have been. See Goss, 252 S.W.3d at 655; Tex. Monthly, 7 S.W.3d at 805;
see also RESTATEMENT (SECOND ) OF TORTS § 611 cmt. f (“The reporter is not privileged
under this Section to make additions of his own that would convey a defamatory impression,
nor to impute corrupt motives to any one, nor to indict expressly or by innuendo the veracity
or integrity of any of the parties.”).
Other language that is arguably unsupported by the Case Disposition Report is the
following sentence, which appeared in the February 29, 2008 version and subsequent
11
versions of the advertisements: “In 103 cases involving crimes against children,
Armando Villalobos couldn't even send one defendant to prison!” (emphasis in
original). It is true that none of the suspects listed in the “Cases Involving Children” chart
were incarcerated; however, the chart did not list all of the child-related cases disposed of
by the District Attorney’s office in 2007. In fact, as previously noted, the Case Disposition
Report reflected that the District Attorney’s office had actually disposed of 137 child-related
cases in 2007, many of which eventually resulted in the suspect’s conviction and
incarceration. Additionally, the summary table included in some versions of the
advertisement stated “TOTAL AMOUNT OF CASES . . .103.” This statement is ambiguous
in that it is unclear whether the figure refers to the total number of cases listed in the
adjacent “Cases Involving Children” chart, or whether it refers to the total number of child-
related cases disposed of by the District Attorney’s office in 2007. Because of these
ambiguities, we cannot say that Freedom established as a matter of law that the
advertisement was a “substantially correct” account of the Case Disposition Report. See
Tex. Monthly, 7 S.W.3d at 805 (citing Crites, 697 S.W.2d at 717).
Taking all evidence in favor of the appellees as true, see Grinnell, 951 S.W.2d at
425, we conclude that an issue of material fact remains as to whether the Zavaletta
campaign advertisements were “fair, true, and impartial account[s]” of the Case Disposition
Report. See TEX . CIV. PRAC . & REM . CODE ANN . § 73.002(b). Accordingly, Freedom did not
meet its burden to establish its entitlement to judgment as a matter of law, and the trial court
did not err in denying Freedom’s motion for summary judgment on this basis.11 See TEX .
11
Freedom further argues by its first issue that it conclusively negated the contention m ade by the
appellees that it acted with m alice in publishing the Zavaletta cam paign advertisem ents.
Both the com m on law and statutory fair report privileges are qualified privileges in that they are lost
if the defendant’s publication is m ade with m alice. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W .2d 640,
646 (Tex. 1995). Therefore, to successfully invoke the privilege at the sum m ary judgm ent stage, the
defendant “m ust conclusively establish that the allegedly defam atory statem ent was m ade with an absence
of m alice.” Id.; see Martin v. Sw. Elec. Power Co., 860 S.W .2d 197, 199 (Tex. App.–Texarkana 1993, writ
denied); see also Freedom Comm’ns, Inc. v. Sotelo, No. 11-05-00336-CV, 2006 Tex. App. LEXIS 5132, at
*14 (Tex. App.–Eastland June 5, 2006, no pet.) (m em . op.).
W e need not address this issue here, however, because we have already determ ined that Freedom
12
Rawle CIV. P. 166a(c); Grant, 73 S.W.3d at 215; Mowbray, 76 S.W.3d at 690. Freedom’s first
issue is overruled.
B. Truth Defense
Freedom argues by its second issue that the Zavaletta campaign advertisements
“cannot be made the basis of a defamation suit” because the statements in those
advertisements were true or substantially true as a matter of law.
Truth of the published statement is a complete defense to a defamation action and
will support summary judgment.12 TEX . CIV. PRAC . & REM . CODE ANN . § 73.005 (Vernon
2005); Randall’s Food Mkts., 891 S.W.2d at 646; see McIlvain v. Jacobs, 794 S.W.2d 14,
15-16 (Tex. 1990). A communication will be considered true for purposes of the truth
defense if it is substantially true at the time the statement is made. See, e.g., City of
Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex. App.–Corpus Christi 1986, no writ). When
determining whether a statement is “substantially true,” we ask if it is no more damaging to
the plaintiff in the mind of the average reader than a true statement would have been. See
McIlvain, 794 S.W.2d at 15-16. Minor inaccuracies will not constitute falsity so long as “the
substance, the gist, the sting, of the libelous charge” is justified. Masson v. New Yorker
Magazine, 501 U.S. 496, 517 (1991). When a defamation action is brought by a private
plaintiff, as here, the defendant bears the burden of proving that the allegedly defamatory
statements were true. Randall’s Food Mkts., 891 S.W.2d at 646 (citing Town of South
Padre Island v. Jacobs, 736 S.W.2d 134, 140 (Tex. App.–Corpus Christi 1986, writ denied)).
As discussed above, Freedom has not conclusively established that the Zavaletta
campaign advertisement was a substantially correct account of the Case Disposition
Report. We find further that Freedom has failed to establish as a matter of law that the
has failed to conclusively establish its entitlem ent to the protection of the privilege such as would support
sum m ary judgm ent in its favor. See T EX . R. A PP . P. 47.1.
12
On the other hand, truth cannot serve as a defense to the appellees’ claim of invasion of privacy
by disclosure. See Doe v. Star-Telegram, 864 S.W .2d 790, 792 n.1 (Tex. App.–Fort W orth 1993), rev’d on
other grounds, 915 S.W .2d 471 (Tex. 1995).
13
advertisement is substantially true. One could reasonably infer from the advertisement that
the appellees committed crimes against children, and we are bound to indulge every
reasonable inference in favor of the appellees in determining whether an issue of material
fact exists. See Grinnell, 951 S.W.2d at 425.
It is also important to note that a publication can convey a false and defamatory
meaning by omitting or juxtaposing facts, even if all the publication’s individual statements
considered in isolation are literally true or non-defamatory. Turner v. KTRK Television, Inc.,
38 S.W.3d 103, 114 (Tex. 2000); Entravision Comm’ns Corp. v. Belalcazar, 99 S.W.3d 393,
398 (Tex. App.–Corpus Christi 2003, pet. denied); cf. Provencio v. Paradigm Media, Inc.,
44 S.W.3d 677, 681 (Tex. App.–El Paso 2001, no pet.) (stating that “the implications of a
true statement, however unfortunate, do not vitiate the defense of truth”). Here, the
juxtaposition of the language on the right side of the advertisement with the chart on the left
side gave a strong impression that those listed in the chart had in fact committed crimes
against children but were not prosecuted. Taking all evidence in favor of the appellees as
true, see Grinnell, 951 S.W.2d at 425, we must conclude that this juxtaposition conveyed
a false and defamatory meaning that was more damaging to the appellees than a true
statement would have been. See McIlvain, 794 S.W.2d at 15-16.
Because an issue of material fact exists as to whether the advertisements at issue
here are substantially true, Freedom has not established that it is entitled to judgment as
a matter of law on the basis of this affirmative defense. Therefore, Freedom’s second issue
is overruled.
C. Invasion of Privacy by Disclosure
By its third issue, Freedom contends that the trial court erred in denying its motion
for summary judgment with respect to the appellees’ invasion of privacy claim based on
public disclosure of private facts. In order to recover damages for this tort, the appellees
14
must prove that: (1) publicity was given to matters concerning the appellees’ private life13;
(2) the matter publicized is not of legitimate public concern; and (3) the publication of those
matters would be highly offensive to a reasonable person of ordinary sensibilities. Indus.
Found. of the South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976).
Freedom argues that it conclusively negated all three of the essential elements of the
appellees’ invasion of privacy claim. First, it contends that it conclusively established that
the information included in the advertisements was of “legitimate public concern” because
it discussed “alleged criminal activity” in Cameron County. “The determination whether a
given matter is one of legitimate public concern must be made in the factual context of each
particular case, considering the nature of the information and the public’s legitimate interest
in its disclosure.” Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474-75 (Tex. 1995).
Freedom notes that the Fifth Circuit has held that “there is a legitimate public interest in
facts tending to support an allegation of criminal activity, even if the prosecutor does not
intend to pursue a conviction.” Lowe v. Hearst Comm’ns, Inc., 487 F.3d 246, 250-52 (5th
Cir. 2007) (applying Texas law) (citing Cinel v. Connick, 15 F.3d 1338, 1345-46 (5th Cir.
1994)). However, the advertisements at issue here did not disclose any underlying facts
that would support an allegation of criminal activity against the appellees. Rather, the
advertisements stated only that such allegations were in fact made against the appellees
and were subsequently reported to the District Attorney’s office. While underlying facts
reflecting criminal activity can certainly be of legitimate public interest, Freedom points to
no authority, and we find none, holding that the public has a legitimate interest in the mere
fact that an individual has been accused of a crime.14 Absent such authority, we cannot say
13
The disclosure of facts that are a m atter of public record will not give rise to a public disclosure
invasion of privacy claim . See Cohn, 420 U.S. at 494-95 (noting that “the interests in privacy fade when the
inform ation involved already appears on the public record”).
14
In arguing that the subject m atter of the advertisem ents was “of legitim ate public concern,” the
dissent notes that “[p]rotection of children from abuse is of the utm ost im portance in Texas” (citations om itted).
By suggesting that the Court’s decision today is som ehow at odds with the goal of “[p]rotect[ing] children from
abuse,” the dissent has ironically— but unsurprisingly— em ployed the sam e type of m oralistic intim idation that
Zavaletta used to tar his opponent as com plicit in child abuse.
15
that the information contained in the advertisement was of “legitimate public concern” as a
matter of law. See Indus. Found. of the South, 540 S.W.2d at 682.
Freedom also asserts that it conclusively established that the advertisements (1)
“contain no details about appellees’ ‘personal lives’” and (2) are not “highly offensive to a
reasonable person.” However, Freedom provides this Court with no argument, authorities,
or record citations to support these assertions. Accordingly, we consider them waived. See
TEX . R. APP. P. 38.1(i).
We conclude that Freedom did not meet its burden to establish that it is entitled to
judgment as a matter of law on the appellees’ invasion of privacy claim. Accordingly, the
trial court did not err in denying Freedom’s motion for summary judgment on those grounds.
See TEX . R. CIV. P. 166a(c). We overrule Freedom’s third issue.
IV. CONCLUSION
The trial court’s denial of Freedom’s motion for summary judgment is affirmed.
DORI CONTRERAS GARZA,
Justice
Opinion delivered and filed this
the 14th day of August, 2009.
Of course, this Court agrees with the general proposition that the protection of children from abuse
is a suprem e public policy objective of this state. However, the dissent does not explain how the publication
of m ere accusations of child abuse without any supporting evidence, as is the case here, serves to advance
this cause. The dissent also fails to recognize that by classifying a m ere accusation of child abuse as an item
“of legitim ate public concern,” it ignores the ideal which it espoused previously in the opinion— that is, that “an
accused is innocent until proven guilty.”
16