Defamation Law Series: Texas Court Holds that “Rhetorical Flourishes” In Article Do Not Support Defamation Claim

Kelley Drye & Warren LLP

The Texas Fifth Court of Appeals in Dallas recently dismissed defamation claims against a Dallas magazine, finding that although a headline and article could be interpreted as criticism of a former symphony orchestra volunteer, the statements functioned as non-actionable opinions.

In September 2013, D Magazine published an article titled: “The Talented Mr. Reyes: How a man of meager means and a mysterious past duped Dallas society.” The article chronicled the tale of Jose Reyes, who worked for Bank of America and volunteered at the Dallas Symphony Orchestra (DSO).  Reyes’ volunteer position ended after allegations that he “crashed” society parties without an invitation and overstepped his boundaries in communicating with the press.  Although Reyes denied these allegations, the DSO terminated his volunteer post in July 2013 and issued a press release stating that he was no longer affiliated with the organization.  The press release prompted D Magazine to follow up with an article.  Following the article’s publication, Reyes was fired from his job at Bank of America.

Reyes sued the magazine for defamation and the DSO on claims of conspiracy and tortious interference with this employment relationship.  Both defendants filed motions to dismiss the claims; the trial court partially granted but also partially denied the motions. On appeal, the Fifth Court examined identified fifteen statements from the article that Reyes contended were defamatory.  The statements included:

  • The article’s headline, which referenced Reyes’ “meager” means, “mysterious past and to his “duping” of Dallas society;
  • A statement addressing complaints that he “crashed parties, blustered his way into photos, and misrepresented his role with charities”;
  • Several statements characterizing his behavior with the DSO as exaggerating his importance to the organization; for example, the article stated that “Reyes bought the last-expensive ticket and then stood at the front door greeting guests, as if to ‘appear that he was a huge sponsor’”; and
  • A discussion of the DSO’s 2013 Gala Launch Party, in which the article stated that “No one claimed to have invited him, and one key [ ] sponsor was incensed by his presence.”

To be actionable for defamation, a statement must assert an “objectively verifiable” fact as opposed to a constitutionally-protected opinion.  See Main v. Royall, 348 S.W. 381, 389 (Tex. App. – Dallas 2011).  Subjective opinions are not capable of possessing a defamatory meaning because such descriptions amount to personal judgments that “rest[] solely in the eye of the beholder.”  Avila v. Larrea, 394 S.W. 3d 646, 659 (Tex. App. – Dallas 2012).

In D Magazine v. Reyes, the Fifth Court determined that none of the 15 statements identified by Reyes could support a defamation claim.  While Reyes contended that some of the article’s descriptions (such as “party-crasher”) suggested something objectionable or undesirable about him, the court concluded that the statements merely served as opinions that Reyes did not “fit” within Dallas society and therefore were not actionable.

Judge Michael O’Neill, who wrote the opinion, reasoned: “The language of ‘crashing’ parties and ‘blustering’ into photos certainly includes some rhetorical flourish.  But the significant underlying presence here, and through much of the article, is the Reyes was not welcome.  That is an opinion, not a verifiable fact.”

Additionally, Reyes pleaded that the article taken as a whole was defamatory, even if none of the 15 specific statements met the standard.  The court denied this supplemental claim, concluding that because it previously had addressed the allegations individually and determined that they were not defamatory, “stating them in concert does not change their meaning.”

Pertaining to the claims against DSO, the court ruled that it did not have jurisdiction and declined to hear them.

[View source.]

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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