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. ( 2013 )

IN THE SUPREME COURT OF TEXAS
444444444444
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
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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CHIEF JUSTICE JEFFERSON , joined by JUSTICE GREEN and JUSTICE LEHRMANN , dissenting.
The Court holds that the broadcast presented a false impression, an untenable “gist,” that the
doctor was disciplined for operating on patients while taking dangerous drugs. But that gist is
reasonably derived from the medical board’s findings, the doctor’s testimony, and witness
observations. If the news report is damning, it is because it conveys substantial truth. The doctor
performed brain surgeries during a time he was ingesting seven narcotics, eight other medications,
and alcohol. He suffered hand tremors during the period he operated on patients’ brains. The
medical board investigator concluded that the doctor was subject to discipline based on his
“[i]nability to practice medicine with reasonable skill and safety because of illness or substance
abuse.” The board not only suspended his medical license, but also ordered a psychiatric evaluation
focused on addictive disorders. It required the doctor to undergo a physical examination to confirm
whether he was, or was not, physically capable of operating safely.
The doctor denies he was an addict or that his drug use impaired his surgical skills. That is
enough, the Court says, to raise a genuine issue on the broadcast’s substantial truth. But that
evidence is immaterial to the gist the Court has identified: that the Board disciplined the doctor for
taking dangerous drugs during a time he performed sensitive surgeries. Because “the underlying
facts as to the gist of [that] charge are undisputed, . . . we can disregard any variance with respect
to items of secondary importance and determine substantial truth as a matter of law.” McIlvain v.
Jacobs, 794 S.W.2d 14, 16 (Tex. 1990).
We must decide whether the broadcast was more damaging to the doctor’s reputation, in the
mind of an average viewer, than a truthful statement would have been. Id. Here, the literal truth is
as caustic as the gist, and the gist reasonably depicts literal truth. Whether it rejected the doctor’s
gist contention, or found that the broadcast was substantially true, the trial court properly granted
summary judgment. The court of appeals properly affirmed that judgment. I would also affirm. The
Court’s conclusion to the contrary sanctions constitutionally protected speech. For these and other
reasons, I respectfully dissent.
I. The broadcast was substantially true.
“The common law of libel . . . . overlooks minor inaccuracies and concentrates upon
substantial truth.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991) (internal
citations omitted). Small discrepancies “do not amount to falsity so long as ‘the substance, the gist,
the sting, of the libelous charge be justified.’” Id. at 517; see also Turner v. KTRK Television, Inc.,
2
38 S.W.3d 103, 115 (Tex. 2000) (holding that substantial truth doctrine “precludes liability for a
publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details”). “Put
another way, the statement is not considered false unless it ‘would have a different effect on the mind
of the reader from that which the pleaded truth would have produced.’” Masson, 501 U.S. at 517
(quoting R. SACK, LIBEL, SLANDER, AND RELATED PROBLEMS 138 (1980)).
We must view the communication as a whole in light of the surrounding circumstances based
upon how a person of ordinary intelligence would perceive it. Turner, 38 S.W.3d at 114. We
determine falsity based on “the meaning a reasonable person would attribute to a publication, and
not to a technical analysis of each statement.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154
(Tex. 2004) (emphasis added). Rather than consider the broadcast as a whole, the Court parses it
into several different gists, and then addresses only two of them, ironically presenting a certain
juxtaposition that the Court itself decries.
The Court states that the broadcast incorrectly characterized Neely’s sanction as based on the
Board’s conclusion that Neely operated on patients while using dangerous drugs. ___ S.W.3d at
___. Because the Board’s action was based only on self-prescribing, the Court holds that this gist
was not substantially true.
We require substantial, not perfect, truth. With respect to substantiality, Neely admits he was
using every one of the fifteen drugs identified in the Board order, plus a few more1:
Q. And—and these are actually drugs that you were, I assume, taking. Correct?
A. Yes, sir.
1
Neely also admits taking Paxil, Flovent, and Singulair.
3
Q. I mean, you weren’t prescribing them to yourself to throw away, correct?
A. No.2
Seven of these drugs are narcotics. Paregoric, a narcotic also known as camphorated tincture
of opium,3 contains morphine and is a controlled substance. The average adult dose is 5-10 milliliters
one to four times per day; Neely concedes he was taking up to 70 milliliters daily. During 1999-2000
(the time of the Jetton and Wu surgeries), he took it regularly, at bedtime and again upon waking.
He believes the effects wore off after two or three hours, and he believes he could perform surgery
within three or four hours of taking morphine.
Neely tore his rotator cuff in 1999, and he admits during that time to taking “quite a bit” of
Vicodin, also a narcotic and a controlled substance. He prescribed himself Darvocet, a pain
medication, narcotic, and controlled substance; Darvon, Propoxyphene, and Norco, also narcotic pain
relievers; Lomotil, another narcotic; Phenergan, an anti-nausea drug that can cause considerable
drowsiness; Ventolin, a bronchodilator; Medrol and Azmacort, steroid treatments he used for asthma;
Prilosec for acid indigestion; and Flonase. He was also taking Paxil, which his doctor had prescribed
for acute depression.
Neely’s self-refills were not isolated occurrences. Between August and October 1999—the
time he was treating Paul Jetton—Neely self-refilled his Paregoric prescription twelve times.
2
Unless otherwise indicated, all of this information comes from the Board’s investigation, the Board’s order,
or Neely’s testimony. The Board’s order is attached as an Appendix to this opinion.
3
See, e.g., Henley v. State, 387 S.W .2d 877, 878 (Tex. Crim. App. 1965) (holding that paregoric “is, in fact,
a narcotic drug known under the official drug name of ‘camphorated tinture [sic] of opium’ and that it contains morphine,
which comes from opium”).
4
During the same time, Neely drank alcohol every night that he was not on call. He admits to
two drinks per night during 1999-2001, although he would sometimes have four or five at a time and
would occasionally “overindulge.” Neely admits that almost all of the drugs he was using, including
alcohol, can cause withdrawal symptoms, although he denies any such symptoms, except with regard
to Medrol. Neely also acknowledges that the drugs he was using can cause dizziness, visual
disturbances, mental cloudiness, euphoria, sedation, and nervousness. Neely admits he was
hypomanic, which he defines as “hyperactive,” while on steroids, as he was in 1999. When the
broadcast aired, Neely had been involved in seven malpractice cases, at least two of which alleged
that he was addicted to prescription drugs and that he abused alcohol.
The Court emphasizes that the Board found that most of Neely’s drugs were “legitimately and
appropriately prescribed.” ___ S.W.3d at ___. In fact, the Board found that Neely’s treating
physician appropriately prescribed the medications initially, but it did not conclude that Neely’s
extensive (and unmonitored) refills were part of a legitimate treatment plan:
Respondent’s treating physician legitimately and appropriately prescribed a number
of medications to treat these conditions. However, between 1999 and 2002,
Respondent began to refill the medications himself in lieu of scheduled visits.
Agreed Order, Finding of Fact 6 (emphasis added). The Board’s investigator concluded that Neely
should be disciplined for “[i]nability to practice medicine with reasonable skill and safety because
of illness or substance abuse.” The Board ordered Neely not to prescribe or “administer . . .
controlled substances or dangerous drugs with addictive potential or potential for abuse” to himself.
(Emphasis added.) The Board required Neely to undergo an examination by a psychiatrist who was
board-certified in forensic or addiction psychiatry. That directive cannot seriously be thought to relate
5
to mental health issues unconnected to drug use. See TEX . OCC. CODE § 164.056(d) (“The board may
not require a physician . . . to submit to an examination by a physician having a specialty specified
by the board unless medically indicated.”). It can only relate to a determination that the doctor was
actually taking these drugs and could be addicted to them. It is not hard to understand the Board’s
concerns: patient safety may be negatively impacted by a doctor performing surgeries while under
the influence of, or experiencing withdrawal from, narcotics. The Board’s requirement that Neely
undergo a physical examination could only relate to the Board’s fear that Neely had a condition that
may adversely affect his ability to safely practice medicine.
The Court concludes that the Board’s reference to Neely’s “inability to practice medicine with
reasonable skill and safety to patients, due to mental or physical condition” related only to Neely’s
hand tremors, and not his drug use. ___ S.W.3d at ___ (“The Board Order ultimately did not
discipline Neely under section 164.051(a)(4) for substance abuse but only for a ‘mental or physical
condition,’ which was his hand tremor.”). But there is nothing in the Board’s order reflecting such
a determination. To the contrary, the Order states that “the Board is requesting independent physical
and psychiatric evaluations to determine [Neely’s] capacity to practice medicine in general, and
specifically, to perform surgery.” (Emphasis added.) Although the physical examination would
address the Board’s concerns about the hand tremors, the psychiatric evaluation, by a board-certified
addiction specialist, could only have been intended to address the Board’s concerns about Neely’s
possible substance abuse. We are supposed to view the communication as a whole in light of the
surrounding circumstances based upon how a person of ordinary intelligence would perceive it.
6
Turner, 38 S.W.3d at 114. No reasonable person would interpret the Board’s order the way the Court
has.
After Neely and the Board signed the Agreed Order, the Board posted the following on its
website:
ON 12-12-03 THE BOARD AND DR. NEELY ENTERED INTO AN AGREED
ORDER SUSPENDING THE PHYSICIAN’S LICENSE; STAYING THE
SUSPENSION, AND PLACING THE PHYSICIAN ON PROBATION FOR THREE
YEARS. THIS ACTION WAS BASED ON ALLEGATIONS THAT DR. NEELY
HAD SELF-PRESCRIBED MEDICATIONS WITH THE POTENTIAL TO
INTERFERE WITH HIS ABILITY TO PERFORM SURGERY. THE TERMS OF
THE ORDER FORBID DR. NEELY FROM SELF-PRESCRIBING MEDICATIONS,
AND REQUIRE CONTINUING PHYSICAL AND PSYCHIATRIC
EVALUATIONS TO VERIFY HIS FITNESS TO PERFORM SURGERY.
Shortly thereafter, and a month before the KEYE-TV broadcast, the Austin American Statesman
reported on the Board’s actions, noting that Neely was one of six physicians disciplined for
“violations involving either drug or alcohol abuse.”4 See Mary Ann Roser, 6 physicians disciplined
for substance abuse, AUSTIN AMERICAN STATESMAN , Dec. 20, 2003.
The court of appeals accurately assessed the substantial truth of the “taking dangerous drugs”
gist:
Neely’s use of self-prescribed medications was plainly a focus of the Board’s order.
The order prohibited Neely from prescribing, dispensing, or administering “controlled
substances or dangerous drugs with addictive potential or potential for abuse” to
himself. Furthermore, the order was consistent with a concern of the Board that Neely
might have become addicted to medications he was self-administering. The order
required him to be evaluated by a Board-appointed psychiatrist who was board-
certified in forensic or addictive psychology. These evaluations had not yet been
performed, or the underlying issues resolved, at the time of the broadcast. In short,
4
The Board suspension also led Blue Cross Blue Shield to deny Neely’s request to participate in their PPO,
POF, and HMO networks.
7
even if it was not literally true that Neely had been “disciplined for . . . taking
dangerous drugs” in terms of the precise legal bases of the Board’s order, that
assertion would at least be substantially true because it would be no more damaging
to Neely’s reputation in the eyes of the ordinary viewer than a literally true recitation
of the Board’s order would have been.
331 S.W.3d at 924.
The Court reaches the opposite conclusion, isolating three portions of the broadcast: anchor
Fred Cantu’s introductory statement that Neely was disciplined for taking dangerous drugs and
controlled substances, Paul Jetton’s statement that one cannot take the medications Neely was taking
and drive a vehicle, and Wilson’s questioning of the Texas Medical Board representative regarding
whether the order would prevent Neely from using dangerous drugs and controlled substances and
thereby “do the same thing he was doing before.” ___ S.W.3d ___.
But the Court’s focus on a small portion of Cantu’s introductory statement5 is
misplaced—even Neely admits that it was substantially true:
Q. We’ll call this paragraph one. You can read it to yourself.
A. Yes.
Q. Is there anything in there that—that’s false about you in there?
A. That’s—that’s fairly true.
The Court then turns to Paul Jetton’s statement and concludes that “Paul’s statement that one
cannot take the medications Neely was ‘taking’ and drive a vehicle” contributed to the false gist. ___
S.W.3d at ___. But this conflicts with the Court’s later holding that some of Sheila Jetton’s
5
Fred Cantu: If you needed surgery would you want to know if your surgeon had been disciplined for
prescribing himself and taking dangerous drugs, had a history of hand tremors and had been
sued several times for malpractice in the last few years?
8
statements were protected by the judicial proceedings privilege. Specifically, the Court identifies a
second gist involving Sheila Jetton’s statements that Neely performed unnecessary surgery. The
Court decides that those statements were protected because “an ordinary viewer could conclude that
Sheila’s allegation regarding unnecessary surgery was made in the Jetton lawsuit.” ___ S.W.3d at
___. I do not understand why this holding would not also apply to Paul Jetton’s statements about
Neely’s drug use, which formed the basis of the same lawsuit. His petition, filed nine months before
the broadcast, alleged:
At all time [sic] material hereto, Byron Neely, M.D. was impaired from making good
medical decisions and from performing neurosurgery because he was dependent on
steroids and opiates and that he abused alcohol. Byron Neely, M.D. knew that he was
not competent to perform neurosurgery because he had tremors in his hands as a result
of the drugs that he was taking. By providing medical treatment to Paul Jetton and
surgery on Paul Jetton in an impaired state, Byron Neely, M.D. acted negligently and
such negligence was a proximate cause of the complained of damages. Such
impairment adversely affected Byron Neely, M.D.’s communication skills and
attentiveness to Paul Jetton’s infected shunt.
(Emphasis added.)
But even if Paul’s statement were not privileged, Neely acknowledges its factual truth: you
should not drive a car after you’ve taken Vicodin, Darvocet, Paregoric, Phenergan, or Norco. Neely
agrees that these drugs impact physical and mental abilities, and that a surgeon should not perform
surgery after taking these drugs. He also confirms that he was taking all of them, although he denies
that he operated while impaired.
Finally, Neely admits that Jetton’s statement was his opinion, and nothing more:
Q. Now, this is Mr. Jetton’s statement, right?
A. That is correct.
9
Q. And these are his views or opinions about some of the drugs that you were
self-prescribing, right?
...
A. That’s his opinion.
See, e.g., Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 14 (1970) (holding that article
reporting that people had characterized a real estate developer’s position as “blackmail” was protected
expression; “even the most careless reader must have perceived that the word was no more than
rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating
position extremely unreasonable”); see also ROBERT D. SACK, SACK ON DEFAMATION : LIBEL,
SLANDER, AND RELATED PROBLEMS § 4:2.4[A] (4th ed. 2012)(noting that the Supreme Court has held
that speech is not defamatory even if “literally containing assertions of fact [but] is intended to
express only points of view”).
The Court concludes that Wilson’s questioning of the Board representative also contributed
to the false perception that Neely was disciplined for operating on patients while using dangerous
drugs. The disputed excerpt provides:
Wilson: The [Board] did discipline Dr. Neely. This past December,
they suspended his license but gave it right back by staying the
suspension. Now he’s on probation for three years. The only
requirements are that he see a psychiatrist and not write
prescriptions for himself or his family. A decision the Board
defends.
Board representative: We have compliance officers and the compliance officers will
definitely follow to make sure that he’s doing the things that
his order requires him to do.
10
Wilson: But how would they know if he’s using? He can get somebody
else to prescribe him. I mean, he could say, “I’ve followed the
order.”
Board representative: Right.
Wilson I didn’t prescribe myself.
Board representative: Right, Right.
Wilson: How do we, how do we know that he’s, that we’re not putting
somebody right back out there to do the same thing he was
doing before?
Board representative: That’s a very good question, and why this order doesn’t
include drug testing, I, I honestly don’t know the answer to
that.
Wilson is not suggesting that the Board disciplined Neely for taking dangerous drugs, but
rather that the Board did not do enough—that in the face of knowledge that a surgeon had hand
tremors and had repeatedly self-prescribed numerous narcotics and controlled substances, the Board
let Neely operate without requiring him to undergo drug testing. When asked whether Wilson’s final
question was true, Neely’s response was not that her inquiries created the false impression that the
Board had sanctioned him for using drugs, but that the Board would be able to obtain his medical and
drug records to determine whether his confessed usage had ceased.
Q. And then Nanci Wilson’s asking about: “How would they know if he was
using? He can get somebody else to prescribe for him. He could say I
followed the order, and I didn’t prescribe myself. How do you know that we
are not putting somebody right back out there to do the same thing that he was
doing before?” Do you see that?
A. I see that, yes.
Q. Is there anything false in there about you, in there?
11
...
A. You know, how would he know? They have the—the—they have the medical
records and the drug records from, henceforth.
Q. And so you think that they would know from the drug records?
A. Absolutely.
Finally, the Court concludes that it need not address the third gist it identifies: that Neely was
operating on patients while experiencing hand tremors. ___ S.W.3d at ___. But we must evaluate
the substantial truth of the broadcast as a whole,6 and the hand tremors are an inseparable part. That
portion of the broadcast is also undeniably true.
Neely has tremors, although he denies that they impact his surgical skills. He has variously
ascribed the tremors to (1) tapering off of Medrol (which occurred when he treated Jetton and Wu,
and he admitted some of those tremors were “major”); (2) the Ventolin he was taking; (3) nervousness
while meeting with a Board investigator; and (4) being “badgered” by the attorney deposing him. The
Board’s investigator witnessed the tremors, as did Sheila Jetton when Neely was injecting anesthetic
into her husband’s head.7 The Board’s order concluded that Neely had a history of tremors, and
Neely’s personal physician noted it in his medical records. The Board was concerned enough about
the tremors that it ordered Neely to undergo a complete examination by a physician “to determine
[Neely’s] capacity to practice medicine in general, and specifically, to perform surgery.”
6
See City of Keller v. Wilson, 168 S.W .3d 802, 811 (Tex. 2005) (“[P]ublications alleged to be defamatory must
be viewed as a whole— including accompanying statements, headlines, pictures, and the general tenor and reputation of
the source itself. A court reviewing legal sufficiency cannot disregard parts of a publication, considering only false
statements to support a plaintiff’s verdict or only true ones to support a defense verdict.”).
7
The Jettons fired Neely the next day.
12
The tremors, whether related to Neely’s drug use or not, raise separate questions about Neely’s
fitness to perform surgeries. They formed part of the basis for the Board complaint and subsequent
order, as well as the Jettons’ lawsuit. We cannot consider the broadcast as a whole without including
this portion of it.
The Court concludes that Neely has raised a fact issue on falsity because he denies operating
while impaired and because the physician he hired after the Board instituted proceedings against him
found that Neely did not have a substance abuse disorder. But Neely’s controverting evidence goes
to whether he was impaired or an addict, not to whether the Board disciplined him for taking
dangerous drugs during a time he was performing brain surgeries.
A case from the United States Court of Appeals for the Seventh Circuit is instructive. See
Global Relief Found., Inc. v. New York Times Co., 390 F.3d 973 (7th Cir. 2004). Global Relief
Foundation, Inc., an Illinois charity, sued several media defendants, alleging that news reports after
the September 11, 2001 terror attacks falsely suggested that Global Relief had funded terrorism. Id.
at 974-75. Global Relief complained that donations to the organization evaporated following these
reports. Id. at 980-81. The media defendants moved for summary judgment, arguing that their
reports were substantially true recitations of the government’s suspicions about and actions against
Global Relief. Id.
Global Relief opposed the motion and provided two affidavits, one from its executive director
and another from its lead lawyer. Id. at 982-83. The executive director’s affidavit denied that Global
Relief engaged in violence or supported violence, terrorism, or military operations; he also denied that
Global Relief ever provided weapons or military items to anyone or that it had provided humanitarian
13
aid to the families of suicide bombers. Id. at 983. Global Relief argued that this affidavit raised a fact
issue, making summary judgment improper. Id.
Even in light of this evidence, the Seventh Circuit held that summary judgment was
appropriate because the news reports were substantially true. Id. at 990. Although the executive
director’s affidavit “demonstrates a genuine issue on whether [Global Relief] has ever funded terrorist
activity[, t]hat genuine issue . . . may not be material or relevant if the true gist or sting of the
publications was not that [Global Relief] funded terrorism but that the government was investigating
[Global Relief] for ties to terrorism and was considering blocking the group’s assets.” Id. at 983. The
court ultimately concluded that Global Relief’s evidence did not raise a fact issue on the substantial
truth of the story’s gist, which was the latter, and it affirmed summary judgment in the defendants’
favor. Id. at 990. The court rejected Global Relief’s “argument that these media defendants must be
able to prove the truth of the government’s charges before reporting on the investigation itself.” Id.
at 987. The court concluded that “[t]he fact of the investigation was true whether or not it was
publicly known. That is all the defendants need to show for the defense of substantial truth. This
they have done.” Id. at 989.
The same applies to Neely’s controverting evidence. Taking all of it as true, it demonstrates
only a genuine issue on whether he was in fact impaired. That is immaterial to the story’s gist: that
the Board disciplined Neely for operating on patients while taking dangerous drugs. That gist was
substantially true as a matter of law.
We come, then, to the literal truth. Even without reference to “gist,” we know that the Board
disciplined Neely for prescribing dangerous drugs to himself, drugs he admits taking. We know that
14
the Board ordered that Neely be supervised as a result. We know that Neely had hand tremors during
a period of time in which he performed sensitive surgeries. The Board ordered psychiatric and
physical evaluations that could only be tied to a concern for the safety of patients under Neely’s care.
We know that several of those patients experienced bad outcomes after Neely operated on them. We
know that he had been involved in seven malpractice cases, at least two of which alleged that he was
dependent on alcohol and drugs. These facts are not gist, only truth. Because the broadcast did not
create a different effect on the average viewer’s mind than the truth would have, I would hold that it
is substantially true. Masson, 501 U.S. at 516; Turner, 38 S.W.3d at 114-15. I would go further. The
“gist” that bothers the Court is actually an inference reasonably drawn from uncontested facts. The
broadcast neither presents an inaccurate gist nor distorts the substantial truth.
II. Because the broadcast was substantially true, we need not revisit McIlvain.
The Court suggests that McIlvain stands only for the proposition that a broadcast’s report of
allegations are protected if those allegations are later proved to be true. ___ S.W.3d at ___. The
Court rejects several Texas appellate courts’ and the United States Court of Appeals for the Fifth
Circuit’s interpretation of McIlvain—that when a report is merely that allegations were made and
were under investigation, proof that allegations were in fact made and under investigation establishes
the report’s substantial truth.8 I disagree with the Court’s restrictive view of McIlvain. But even if
that case’s precise limits are unclear, the speech here would be protected under the general rules
8
See, e.g., Green v. CBS Inc., 286 F.3d 281, 284 (5th Cir. 2002); Cox Tex. Newspapers, L.P. v. Penick, 219
S.W .3d 425, 443 (Tex. App.— Austin 2007, pet. denied); Grotti v. Belo Corp., 188 S.W .3d 768, 771 (Tex. App.— Fort
W orth 2006, pet. denied); Associated Press v. Boyd, No. 05-04-01172-CV, 2005 W L 1140369, at *3 (Tex. App.— Dallas
May 16, 2005, no pet.); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W .3d 609, 611-12 (Tex. App.— San Antonio
2002, no pet.); KTRK Television v. Felder, 950 S.W .2d 100, 105 (Tex. App.— Houston [14th Dist.] 1997, no writ).
15
protecting reports of investigations, such as Texas’ fair report privilege. See TEX . CIV . PRAC. & REM .
CODE § 73.002(b)(1).9 As a leading treatise notes,
News reports that an investigation is underway by the police, by prosecutors,
by other law enforcement agencies, or by other officials are common. Publication of
the details of such inquiries is similarly common. Arguably such a report is, in
substance, an implied allegation of the wrongdoing being leveled against the subject
of the investigation. Readers or hearers may certainly interpret it as such; if there
were no such allegation, presumably there would be no such investigation. The issue
then arises as to whether the republisher of the charges is responsible for the truth
thereof, that is, if the person is not guilty of the charges being investigated, does he or
she have a defamation action against the republisher? . . .
The law treats these accounts as reports of events, not as republications of
allegations of wrongdoing, so that as a general matter, if there is in fact an
investigation, the report of its existence is “true.” Investigations are often important
governmental occurrences. Permitting lawsuits for accurate reports of such events
would threaten to black out significant news. “Doubtlessly, it is painful to be cast
before the public as the target of an investigation where later events point to baseless
or vexatious charges. The greater wrong, however, would be to shroud in secrecy, for
want of publication, the government’s scrutiny of its citizens.”
ROBERT D. SACK, SACK ON DEFAMATION : LIBEL, SLANDER, AND RELATED PROBLEMS § 7.3.5[C] (4th
ed. 2012) (emphasis added) (quoting Sibley v. Holyoke Transcript-Telegram Publ’g Co., 461 N.E.2d
823, 826 (Mass. 1984)). The report here presented a “fair abridgement” of the Medical Board
proceedings and the Jetton and Wu lawsuits, and I would conclude that it was privileged. See
RESTATEMENT (SECOND ) OF TORTS § 611 (1977). Apart from the constitutional considerations raised
by restricting such speech, these are matters of public concern. See N.Y. Times Co. v. Sullivan, 376
U.S. 254, 270 (1964) (noting our “profound national commitment to the principle that debate on
9
See also R ESTATEM EN T (S ECO N D ) O F T O RTS § 611 (1977) (noting that “[t]he publication of defamatory matter
concerning another in a report of an official action or proceeding . . . is privileged if the report is accurate and complete
or a fair abridgement of the occurrence reported”).
16
public issues should be uninhibited, robust, and wide-open”). Imposing liability for reporting on such
issues will shield the truth, not expose it. As the Felder court noted:
[T]he media would be subject to potential liability everytime [sic] it reported an
investigation of alleged misconduct or wrongdoing by a private person, public official,
or public figure. Such allegations would never be reported by the media for fear an
investigation or other proceeding might later prove the allegations untrue, thereby
subjecting the media to suit for defamation. Furthermore, when would an allegation
be proven true or untrue for purposes of defamation? After an investigation? After
a court trial? After an appeal? Undoubtedly, the volume of litigation and concomitant
chilling effect on the media under such circumstances would be incalculable. First
Amendment considerations aside, common sense does not dictate any conclusion
other than the one we reach today.
KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. App.—Houston [14th Dist.] 1997, no writ).
III. Conclusion
The broadcast is damning because it raises questions about Neely’s fitness as a surgeon. But
it is also substantially true. The Court’s holding abridges the freedom to report on a matter of public
concern. In that respect, it collides violently with the First Amendment. See Haynes v. Alfred A.
Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) (“The rule making substantial truth a complete defense and
the constitutional limitations on defamation suits coincide.”). I would answer anchor Fred Cantu’s
initial question in the broadcast “Yes.” See supra, note 5. I respectfully dissent.
____________________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: June 28, 2013
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APPENDIX