Truth is not the Perfect Defense to a Defamation Claim
The Texas Supreme Court continues to review the entire “gist” of a publication in analyzing defamation cases.
In Texas, a common misconception is that a statement cannot be defamatory if the statement is factually true. In a defamation suit, while the statements at issue may be true when read in isolation, the publication may nevertheless convey a substantially false and defamatory impression by omitting material facts or suggestively juxtaposing true facts. However, Texas’ “substantial truth doctrine” precludes liability for a publication that correctly conveys a story’s “gist” or “sting” although erring in the details. Perhaps this is why many believe a factually accurate statement cannot be defamatory.
Alternatively, Texas courts will likely find defamation when a publication conveys story details correctly but fails to put the factual assertions in the proper context thereby getting the story’s “gist” wrong. To determine the “gist,” Texas courts analyze how an ordinary person of ordinary intelligence would perceive the statements in light of the surrounding circumstances. More than just the truth or falsity is considered. Ultimately, if certain facts are omitted or juxtaposed against one another in a way that creates an untrue “gist,” defamation may be found even when the statements are factually accurate.
Recently, the Texas Supreme Court found just that in D Magazine v. Janay Bender Rosenthal holding that a series of factually true statements in an article constituted actionable defamation. In this case, D Magazine published an article called “The Park Cities Welfare Queen” that described Janay Bender Rosenthal as a “University Park mom” who “figured out how to get food stamps while living in the lap of luxury.” When D Magazine refused to retract the article, Rosenthal sued for defamation. In response, D Magazine brought a motion to dismiss Rosenthal’s lawsuit pursuant to the Texas Citizens Participation Act (more here). To avoid dismissal, Rosenthal was required to show that the gist of the article was defamatory.
D Magazine contended that the article’s gist centered upon the Texas Health and Human Services Commission’s decision to allow a person living in an expensive home in a wealthy school district to obtain food stamps despite a criminal history of theft. Rosenthal disputed this characterization arguing that the article’s gist was that Rosenthal obtained food stamps by fraud. Both the trial court and the appellate court sided with Rosenthal. The Texas Supreme Court affirmed.
In its determination, the Texas Supreme Court principally keyed-in on the following assertions:
- The article was published under the heading “CRIME;”
- The article was accompanied by Rosenthal’s mug shot from a prior unrelated charge;
- The article, titled “Welfare Queen,” described Rosenthal as a “University Park mom” who had “figured out how to get food stamps while living in the lap of luxury,” and invited D Magazine readers to see how Rosenthal “pulls it off” despite the assumption that one living in the affluent Park Cities would “never qualify;”
- The article suggested that “public records indicate that [Rosenthal] must have been less than forthcoming” in applying for food stamp benefits;
- The article also outlined Rosenthal’s living situation with her fiancé in a wealthy part of Dallas in a home projected to cost over $1.15 million; and that
- The article noted that Rosenthal had “numerous theft-related arrests and convictions” and concluded that “even if Rosenthal did report her run-ins with the law, the state still might award benefits” because the Texas Health and Human Services Commission “only check[s] for felony drug convictions.”
The article never expressly accused Rosenthal of lying or fraudulently obtaining food stamp benefits.
In an attempt to establish that the gist of the article was not defamatory, D Magazine argued that each statement in the article to be literally, or at least substantially, true and that the article was really focused on the Texas Health and Human Services Commission’s decision to allow a person with a criminal history to obtain food stamps. The Texas Supreme Court didn’t buy it.
In rejecting D Magazine’s arguments, the Texas Supreme Court noted that an article’s gist is truly based on “a reasonable person’s perception of the entirety of [the article] and not merely on individual statements.” As to the D Magazine article, largely due to the arrangement of the undisputed facts included in the article, the Texas Supreme Court held that a reasonable person could construe the article to accuse Rosenthal of fraudulently obtaining food stamp benefits. While the article did discuss the Texas Health and Human Services Commission’s decision to award food stamp benefits to someone with a criminal history, the Texas Supreme Court held that this was not the article’s focus.
The learning from D Magazine v. Rosenthal is not new. While statements can be factually true, if interlaced with other facts—or if other ameliorating facts are omitted—a set of factually true statements can be defamatory.
Though truth may not be properly determined by majority vote, whether a statement—and yes, even a truthful statement—is defamatory certainly is.