Byron D. Neely, Individually, and Byron D. Neely, M.D., P.A. v. Nanci Wilson, CBS Stations Group of Texas, L.P., D/B/A Keye-Tv and Viacom, Inc.

IN THE SUPREME COURT OF TEXAS
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NO. 11-0228
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BYRON D. NEELY, INDIVIDUALLY, AND BYRON D. NEELY, M.D., P.A.,
PETITIONERS,
v.
NANCI WILSON, CBS STATIONS GROUP OF TEXAS, L.P., D/B/A KEYE-TV, AND
VIACOM, INC., RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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JUSTICE LEHRMANN, dissenting to the denial of the motion for rehearing.
“Our liberty depends on the freedom of the press, and that cannot be limited without being
lost.” Letter from Thomas Jefferson to James Currie (Jan. 28, 1786), in 9 THE PAPERS OF THOMAS
JEFFERSON: 1 NOV. 1785–22 JUNE 1786, at 239 (Julian P. Boyd ed., 1954). As the Court recognizes,
this case concerns bedrock constitutional guarantees that protect the right to free speech and a free
press. __ S.W.3d at __. The U.S. Supreme Court has said that the First Amendment “rests on the
assumption that the widest possible dissemination of information from diverse and antagonistic
sources is essential to the welfare of the public, that a free press is a condition of a free society.”
Associated Press v. United States, 326 U.S. 1, 20 (1945). In turn, media reporting of investigations
regarding matters of public concern is vital to a vigilant and active press. However, it is inherent
in the nature of investigative reporting that some allegations will be reported that are later
discovered to be untrue. Shielding media defendants from defamation liability for accurately
reporting such allegations is a critical and well-settled practice, yet the Court’s opinion declines to
recognize as a definitive statement of Texas law that “media reporting of third-party allegations
under investigation is substantially true if the media accurately reports the allegations and the
existence of any investigation.” __ S.W.3d at __. Because I would grant rehearing in this case to
clarify that this statement correctly describes Texas law, I respectfully express my dissent.
In a brief filed by numerous amici in support of Respondents’ Motion for Rehearing, amici
assert that the Court’s opinion, albeit in dicta, mischaracterizes our holding in McIlvain v. Jacobs,
794 S.W.2d 14 (Tex. 1990). The Court’s opinion describes our approach in McIlvain as
“measur[ing] the truth of [reported] allegations . . . against the government investigation that found
them to be true.” __ S.W.3d at __. This language, coupled with the statement that “one is liable for
republishing the defamatory statement of another,” id. at __, may cause some to understand our
holding in McIlvain too narrowly. In McIlvain, we considered a broadcast reporting that certain city
employees were under investigation for alleged misconduct. 794 S.W.2d at 15. The broadcast also
relayed specific allegations regarding the underlying misconduct. Id. We verified the substantial
truth of the broadcast in several ways. First, we considered affidavits from the city’s legal
department “confirm[ing] the existence of the investigation.” Id. at 16. Second, we relied on
documented sworn statements from a city employee describing the alleged misconduct. Id. Finally,
on those portions of the broadcast that presented the most direct accusations of misconduct, we
measured the accusations against the findings of the investigation to establish their substantial truth.
See id.
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I would read McIlvain, as have the Fifth Circuit and several Texas courts of appeals, to
support the proposition that when the gist of a media defendant’s report is that allegations were
made and those allegations are being investigated, proof that the allegations were in fact made and
are in fact being investigated is sufficient to establish substantial truth. E.g., Green v. CBS, Inc., 286
F.3d 281, 283–84 (5th Cir. 2002); Grotti v. Belo Corp., 188 S.W.3d 768, 775 (Tex. App.—Fort
Worth 2006, pet. denied); KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. App.—Houston
[14th Dist.] 1997, no writ). The Court disagrees with this interpretation of McIlvain and notes only
that “we do not foreclose the possibility that the gist of some broadcasts may merely be allegation
reporting, such that one measure for the truth of the broadcast could be whether it accurately relayed
the allegations of a third party.” __ S.W.3d at __. I would go further and would affirmatively
recognize the third-party allegation rule espoused by the Fifth Circuit and the Texas courts of
appeals after McIlvain as an accurate statement of Texas law.1
As amici argue, media defendants should not hesitate to report on allegations that are under
investigation for fear that those allegations may later be proven false. Because the Court’s opinion
may lead to uncertainty in this critical area of the law, and as a result may have a chilling effect on
the press, I would grant rehearing. Accordingly, I respectfully dissent to the denial of Respondents’
Motion for Rehearing.
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The Court’s opinion notes that such a rule would not enable KEYE to prevail in light of the Court’s
determination that the gist of the broadcast at issue went beyond allegation reporting. __ S.W.3d at __. For the reasons
expressed in the dissenting opinion in this case, I continue to disagree with the Court’s characterization of the gist of the
broadcast and its determination that a fact issue exists as to the substantial truth of the broadcast. However, that is not
the basis of my dissent today. In any event, since the Court could reconsider the characterization of the gist of the
broadcast on rehearing, it is possible that the merits of the third-party allegation rule would be reached if the motion for
rehearing were granted.
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_________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: January 31, 2014
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