Steve Fogle Speaks: Neely II vs. McIlvain

by Jackson Walker
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Since 1990, media law practitioners have cited the Texas Supreme Court's ruling in McIlvain v. Jacobs for the proposition that a media defendant's reporting of third–party allegations is substantially true if it accurately reports the allegations–even if the allegations themselves are false. That was called into question when the Texas Supreme Court issued its original 2013 opinion in Neely v. Wilson, but a revised opinion issued January 30, 2014 attempts to clarify the Court's position.

In the revised Neely opinion, the Texas Supreme Court unequivocally states that it did not create a privilege for reporting third–party allegations in McIlvain but also confirms that the Neely facts didn't require it to determine whether such a rule might be appropriate. At the same time this clarification retracts the impact of the original opinion, it underscores that privileges still exist which allow a defendant to report third–party allegations without a comprehensive fear of being punished if the allegations prove to be false. It's also important to note that the Court did not overrule the many cases that follow McIlvain, which can still be argued for the proposition that accurate reporting of third–party allegations are still protected by the very definition of defamation. If the offending statement is that a third–party has made an allegation against the plaintiff, regardless of whether the underlying facts of the statement are true, it is accurate to say that such a statement has been made. The next question might be whether Neely, in its revised form, requires any change in publication standards.

The bottom line is while most thought McIlvain provided an additional protection for reporting even false statements so long as they were made by a third–party and accurately reported, that is still an open question under Texas law.

The short answer appears to be no despite "losing" the protection widely accepted under McIlvain to report third–party allegations. The Neely court reaffirmed the doctrine of substantial truth as a defense (in cases where the plaintiff bears the burden to prove the falsehood) as well as the privilege that careful, fair reporting of official proceedings provides under the fair reporting umbrella.

While the Neely court mentions that McIlvain did not create a rule that reporting third–party allegations was substantially true, it referred to such a rule as an accuracy standard, not a truth standard. The court reserved a determination of whether an accuracy standard is warranted for another time, another case and another analysis. As pointed out in Paul Watler's article after the original Neely opinion, that does not change the Texas precedent establishing the substantial truth doctrine.

Additionally, in Texas, a defendant has the following privileges to an allegation of re–publishing a defamatory statement:

Section 73.002 of the TEX. CIV. PRAC. & REM. CODE affords allows a privilege if the broadcast is a "fair, true, and impartial account of" judicial or other proceedings to administer the law. The Neely court specifically states that this privilege examines whether the reporter's account of the proceedings (not the underlying allegations made in those proceedings) was fair, true, and impartial. According to Neely, this privilege also only extends to statements that are: (1) substantially true and impartial reports of the proceedings; and (2) identifiable by the ordinary reader as statements that were made in the proceedings. Denton Publ'g Co. v. Boyd, 460 S.W. 2d at 884 (Tex. 1971). The official/judicial proceedings privilege, also known as the "fair report" privilege shielded a portion of the broadcast involved in Neely. The key to the fair report privilege is to accurately and fairly report both sides of an issue as reflected in the official proceedings and to convey to the viewer that the statement is attributable to those proceedings.

  • The common law privilege for journalists who accurately report what is contained in court documents, which has also been codified by the Texas Legislature under TEX. CIV. PRAC. & REM. CODE § 73.002(b)(1).

The Neely court stated that comments based on substantially true facts are privileged if fair: whereas comments that assert or affirm false statements of fact are not privileged. Bell Publ'g Co. v. Garrett Eng'g Co., 170 S.W.2d 197, 204 (Tex. 1943). The court reminded us that "false statements of fact concerning a public officer, even if made in a discussion of matters of public concern, is not privileged as fair comment." Barbouti v. Hearst Corp., 927 S.W.2d 37, 52 (Tex. App.–Houston [1st] 1996, writ. denied). The Neely court concluded that a comment based on a substantially true statement of fact can qualify as a fair comment, but if the comment is based upon substantially false statement of fact that the defendant asserts or conveys is true, then the comment is not protected by fair comment. The key on this fair comment privilege is to accurately and fairly report both sides of an issue.

  • The fair comment privilege (shielding periodical publications from republication liability for reasonable and fair comment on or criticism of official acts of public officials or other public concerns). § 73.002(b)(2).

A Texas statute also provides a "due care provision" for broadcasters which shields them from liability unless the plaintiff proves the broadcaster failed to exercise due care to prevent the publication of a defamatory statement. CPRC § 73.004. Broadcasters are generally not liable for defamatory statements made by third–parties in the broadcast. That is, if a third–party makes a defamatory statement in an interview, this due care provision would provide a potential defense to liability.

The bottom line is while most thought McIlvain provided an additional protection for reporting even false statements so long as they were made by a third–party and accurately reported, that is still an open question under Texas law. However, that alone does not abrogate the requirement that a defamatory statement be false in order to be actionable and that other defense and privileges remain intact as the revised Neely opinion confirms.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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