Don’t take those Newsroom Legal Tools for Granted

posted on 1.12.2018

The recent legal threat by President Donald Trump to halt the publication of the Michael Wolff book Fire and Fury, and his insistence last week that a review of the country's libel laws is coming, should remind all broadcasters that we must be vigilant to protect hard-fought legal tools, which TAB has helped enact,  that protect newsrooms from frivolous lawsuits.

“We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Trump said.  “And if somebody says something that’s totally false and knowingly false, that the person that has been abused, defamed, libeled, will have meaningful recourse.”  Trump went on to refer to libel laws as a "sham and a disgrace and do not represent American values and American fairness." 

It’s a sentiment shared by some political leaders in D.C. and here in Texas.  Vigilance is the price of keeping hard-won newsroom libel protections.  Broadcasters simply can’t stay on the sidelines when newsroom legal tools come under attack.  One need look no further than the erosion of the Texas Public Information Act by the courts and repeated attempts by the Legislature to weaken the law to get a clear picture of the need to be proactive.

In the past 25 years, TAB has helped enact several libel defense tools which have proven enormously helpful to newsrooms and which have saved Texas stations millions in legal fees.
They include:

• Texas media interlocutory appeal (1993)
• Citizen Participation Act, the state’s anti-SLAPP litigation law (2011)
• Defamation Mitigation Act (2013)
• Clarification to the law concerning reporting third party allegations (2015)

The Texas media interlocutory appeal and the Citizen Participation Act have proven to be the “go to” tools when a Texas newsroom is hit with a libel claim.  Both provisions have been used to stop libel suits in their tracks.  In particular, the Citizen Participation Act has been very helpful in quashing frivolous lawsuits against media entities.

The Texas anti-SLAPP statute is considered one of the nation’s best because it puts the initial burden of proof on the other party, not the newsroom.  The person bringing the lawsuit essentially must prove their claim to a judge before the case is ever allowed to go to trial.  Texas stations have saved hundreds of thousands of dollars by a case not advancing to the discovery and trial phases of suit. 

The Texas law also has a provision which potentially allows media defendants to recoup their legal fees if a judge rules in their favor.  That provision alone has sent a strong message to the legal community that the playing field has changed – one can’t file frivolous suits without consequence.  There have been several attempts to weaken the law since 2011, all of which have been beaten back by TAB and others, or resolved through skillful negotiation by the original statute’s author, TAB Newsroom Legislative Committee member Laura Prather of TAB associate member Haynes Boone LLP.  Similarly, the venerable media interlocutory appeal protection crafted by attorney Paul Watler, now with TAB general counsel Jackson Walker, has also come under fire over the years.

In 1999, it would have been nixed by an errant floor amendment with “unintended consequences” had not been for the watchful efforts of TAB and others.  At one point during TAB’s charge to pass the Free Flow of Information Act, the state’s reporter shield law, the Executive Branch floated the idea of striking the media interlocutory appeal as “payment” for allowing the shield law to pass.

Thankfully, the shield law bill author in 2007, state Rep. Corbin Van Arsdale, R-Tomball, heard TAB’s concerns and told the governor’s office that it was a non-starter.  The interlocutory appeal statute allows media defendants to appeal to a higher court for a decision before a trial begins in a case in which the lower court has allowed a suit to proceed.  In most cases, the appeals court has overturned the lower court’s decision, saving Texas stations hundreds of thousands over the years by not having to go to trial.

In 2015, TAB partnered with the Texas Press Association to pass a bill addressing the disastrous 2013 Texas Supreme Court ruling, Neely v. Wilson.  The decision set aside nearly 25 years of case law and impeded the ability of journalists to conduct investigative reports based on third party allegations – even those made by a regulatory body – without fear of libel suits. 

The legislative fix, however, and the 2013 Defamation Mitigation Act, a uniform corrections and retractions statute, are also targets for those who seek to prevent the media from defending itself in a libel case.  If broadcasters allow the other side to prevail at the Legislature, it will have a chilling effect on reporting.  No democracy is served by that, nor should Texans allow that to happen. 

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.

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