Escolar Documentos
Profissional Documentos
Cultura Documentos
AT DALLAS
Appellalz ts,
v.
H. WALKER ROYALL,
Appellee.
HAYNES
AND BOONE,LLP
Michael Mazzone
State Bar No. 13313000
Jeffery T. Nobles
State Bar No. 15053050
Polly Graham
State Bar No. 24065318
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Telecopier: (713) 547-2600
COUNSELFOR AMICUSCURIAE
ASSOCIATION
OF AMERICANPUBLISHERS
IDENTITY OF PARTIES AND COUNSEL
I. Appellants:
Carla T. Main
Encounter for Culture and Education, Inc.
Matthew R. Miller
Wesley Hottot
Institute for Justice Texas Chapter
8 16 Congress Avenue, Suite 960
Austin, Texas 78701
Dana Berliner
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, Virginia 22203
John J. Little
Megan Dredla
LITTLEPEDERSEN FANIGIAUSERLLP
901 Main Street, Suite 41 10
Dallas, Texas 75202
111. Appellee:
H. Wallter Royal1
Robert Gilbreath
HAWKINS, PARNELL & THACICSTON,
LLP
45 14 Cole Avenue, Suite 500
Dallas, Texas 75205
Patrick Zummo
3900 Essex Lane, Suite 800
Houston, Texas 77027
V. Amicus Curiae:
Michael Mazzone
Jeffery T. Nobles
Polly Graham
HAYNES AND BOONE,LLP
1221 McICinney Street, Suite 2100
Houston, Texas 77010-2007
TABLE OF CONTENTS
111
.....,.
STATEMENT OF INTEREST OF AMICUS CURIAE ................... . . . . . . . . . . .1
. . .......
SUMMARY OF ARGUMENT .........,... .... ..... . . . . . . .. . . . . . . . . . . . . . 1
ARGUMENT ...................................................................................................................... 3
C. The Texas Supreme Court has adopted the Waldbaum/Trotter test ...........24
CONCLUSION .................................................................................................................
27
APPENDIX ..........................................................................................................Tabs A - B
TABLE OF AUTHOFUTIES
Carr v. Bmsher,
776 S.W.2d 567 (Tex. 1989) ...............................................................................................
6
Casso v. Bmrzd,
776 S.W.2d 551 (Tex. 1989)............................................................................................ 5
In re Cusumano,
162 F.3d 708 (1st Cir. 1998) .............................................................................................9
Grant v. Wood,
916 S.W.2d 42 (Tex. App.-Houston [lst Dist.] 1995, orig. proceeding) .........................5
Gutlzery v. Ta~dor,
112 S.W.3d 715 (Tex. App.-Houston [14th Dist.] 2003, no pet.) ..................................13
Hutclzinson v. Proxmire,
443 U.S. 111 (1979) .............................................................................................. 17, 23, 24
Kaufman v. Islamic Society,
29 1 S.W.3d 130 (Tex. App.-Fort Worth 2009, pet. denied) ................................ 4, 12, 13
In re Madden,
151 F.3d 125 (3d Cir. 1998)................
......,,....,. . . . . . . . . . . . . . . . . . . . . . . .9
New Yorlc Times v. Sullivan,
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
376 U.S. 254 (1964) ......................................
Shoerz v. Shoerz,
5 F.3d 1289 (9th Cir. 1993)................. .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 10
Swnte v. Schijfers,
975 S.W.2d 70 (Tex. App.-San Antonio 1998, pet. denied) ........................
...
..,,., 26
Tex. Dep 't of Transp, v. Needham,
82 S.W.3d 314 (Tex. 2002) ...............................................................................................
13
Trump v. 0 'Brien,
403 N.J. Super. 281 (2008) .....................
.............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Waldbaum v. Fairchild Pub1 'n, Inc.,
627 F.2d 1287 (1980) ...................................................................................... 20, 21, 23, 25
AND RULES
STATUTES
Ron Kessler and Kirte Kinser, How the Statute was Enacted:
The Legislative History, 1999 LIBELDEFENSERESOURCE CENTER
BULLETIN, Issue 2 at 9 (1999) .......................................................................................... 6
- vii -
ISSUES PRESENTED
members of the "print media" who may take an interlocutory appeal from an order
- viii -
STATEMENT OF INTEREST OF AMICUS CURIAE
of the U.S. book publishing industry. AAP's approximately 300 members include most
of the major commercial book publishers in the United States, as well as smaller and non-
profit publishers, university presses, and scholarly societies. AAP members publish
hardcover and paperback boolts in every field, educational materials for the elementary,
software and electronic products and services. The Association represents an industry
whose very existence depends upon the free exercise of rights guaranteed by the First
Amendment.
Haynes and Boone is not being paid a fee for preparing this brief. See TEX. R.
APP.P. 1l(c). Neither the AAP nor Haynes and Boone have any economic interest in the
SUMMARY OF ARGUMENT
This interlocutory appeal involves two issues that are particularly significant to the
order denying a summary judgment motion filed by the author and publisher of a book.
He argues that the authors and publishers of boolts do not have standing to file an
interlocutory appeal. But Royall's contention that a book is not "print media" is contrary
to the language and purpose of the statute in question, TEX. CIV. PRAC.& REM. CODE
and delay associated with litigation and discovery associated with meritless claims. This
brief addresses the practical ilnplications of Royall's argument for inembers of the print
media who write and publish boolts, whose First Amendment defenses would be unfairly
Royall also argues that he is a private figure and that the First Amendment
defenses available in cases involving speech about a public figure are unavailable here.
This issue is also significant to the book publishing industry. Royall involved himself in
a newsworthy issue of great public concern when he agreed, for his own commercial
purposes, to undertake the development of private property that the City of Freeport
sought to take under its powers of eminent domain. This story and his involvement were
the subject of many contemporaneous newspaper articles. The book that is the subject of
this litigation, Bulldozed, was written to explain this story in the broader national context
of other eminent domain controversies and lawsuits, notably including the Supreme
Court's controversial decision in Kelo v. City of New London, 545 U.S. 469 (2005).
Boolts convey vast amounts of information in great depth, and the First Amendment
protections for speech, ideas, and opinions assure the authors and publishers of boolts that
they will not, in most cases, be held liable for conveying this information. Roya117s
argument that he is not a public figure would have implications for press freedoms that
I. Boolts are "print media" subject to First Amendment protection under Texas
law.
In his brief, Royal1 asks this Court to hold that the authors and publishers of books
are not members of the "print media" who are permitted to seek immediate appellate
review of their First Amendment defenses under section 51.014(a)(6) of the Civil
Practice & Remedies Code ("the Statute"). The Court should reject Royall's erroneous
and dangerously narrow reading of the Statute. The Statute covers "the electronic or
print media." By its terms it does not limit "print media" to newspapers or any other
form of media that contains only the latest news. Royall's contention that the statutory
term "print media" should be construed to exclude boolts is inconsistent with the
intent from the statute's plain language. Courts may consider several factors to determine
the Legislature's intent, including the object sought to be obtained, the circuinstances of
the statute's enactment, the legislative history, the coininon law or former statutory
provisions, including laws on the same or similar subjects, and the consequences of a
particular construction. Helena Chern. Co. v. Willzins, 47 S.W.3d 486,493 (Tex. 2001).
A boolt is a print medium, and boolts are "print media," plainly covered by the
Statute. The Texas Supreme Court has long applied First Amendment protections to
boolts as well as newspapers and magazines. See Doubleday & Co., Inc, v. Rogers, 674
S.W.2d 75 1, 756 (Tex. 1984) (applying the First Amendment's "actual malice" standard
to boolts). The Statute's application to publishers of boolts has not been questioned by
other Texas appellate courts. See, e.g., Harvest House Publishers v. Local Church, 190
S.W.3d 204, 209 (Tex. App.-Houston [lst ~ i s t : ]2006, pet. denied) (interlocutory
The principal case cited by Royall, Kaufman v. Islamic Society, 291 S.W.3d 130
(Tex. App.-Fort Worth 2009, pet. denied), illustrates that the plain language of the
Statute is not to be interpreted narrowly, in a way that would exclude books from the
definition of print media. There, the court of appeals held that an internet publication
should be covered by the Statute, because of its similarity to "words published by more
traditional electronic or print media." Id. at 140. The Kaufman court compared internet
stater~zentorz a paper page in a boolc lyirzg on a shelf which is accessed by the reader
when the book is opened." Id. (citations omitted and emphasis added). The Kaufman
court recognized that books are print media, and its decision does not support Royall's
arguments.
In constsuing the Statute, this Court may also consider the object it seeks to obtain
and the circumstances of its enactment. Helena Chenz. Co., 47 S.W.3d at 493. The
objective of the Statute is to provide a procedural framework that promotes the freedom
of the press, by allowing members of the press to obtain immediate appellate review
when trial courts deny summary judgment motions based on first Amendment defenses.
1 The Statute protects members of the media from the delay and
expense of trying meritless claims.
remedy. To the contrary, more than twenty years ago, the Texas Supreme Court
recognized that courts must give "careful judicial attention to summary judgment motions
in the context of the first amendment." Casso v. Brand, 776 S.W.2d 551, 557-58 (Tex.
1989). The Casso court affirmed that "summary judgment practice is particularly well-
suited for the determination of libel actions, the fear of which can inhibit comment on
Although the Casso court encouraged trial courts to grant summary judgment,
Texas law did not provide a remedy in cases where the trial court denied motions for
summary judgment or simply declined to rule on them. Therefore, the Texas Legislature
adopted the Statute in 1993 to deal with the crisis that defamation lawsuits had created
for members of the print and electronic media. The rationale for the statute was to save
the time and expense of a trial on the merits when a member of the media may be entitled
Two Texas attorneys who were instrumental in the passage of the Statute have
Ron Kessler and Kirte Icinser, How the Statute was Enacted: The Legislative Histouy,
1999 LIBELDEFENSERESOURCE
CENTERBULLETIN,
Issue 2 at 9 (1999) (attached at tab
A). The statute has succeeded in relieving the problems that led to its passage. Over the
last seventeen years, the First Amendment defenses of Texas publishers and broadcasters
have been vindicated as Texas appellate courts have frequently reversed orders denying
available to all members of the press, including members of the book industry. Royall's
argument that book authors and publishers do not have standing to appeal under the
The core values of the First Amendment reflect the fundamental importance of the
free flow of ideas and opinions on matters of public interest and concern. Carr v.
Brasher, 776 S.W.2d 567, 570 (Tex. 1989). These principles apply equally to every sort
of publication, with no exception for boolts. "The liberty of the press is not confined to
newspapers and periodicals. . . . The press in its historic connotation comprehends every
sort of publication which affords a vehicle of information and opinion." Love11 v. GrifJin,
303 U.S. 444,452 (1938) (upholding press and speech freedoms for pamphleteering).
Book authors and publishers, like newspaper reporters and publishers, face
significant rislts that the financial pressures and risks of litigation and discovery will
force them to settle before their First Amendment defenses can be adjudicated by Texas
appellate courts. The unique social value of boolts, and the financial risks involved in the
book business, help explain why the Statute allows book authors and publishers to pursue
interlocutory appeals.
By virtue of their length, boolts typically contain more factual information and
analysis than is usually conveyed in other print media, which allows for greater depth and
broader context than readers find in the shorter formats of newspaper and magazine
articles. More people, events, issues, and relationships are covered, with explanations
and interpretations that inform readers and encourage them to form their own opinions
and conclusions. The flow of so much information creates a greater risk that individuals
or entities that might not be mentioned in a shorter article will take offense and file a
defamation suit. See Harvest House Publishers, 190 S.W.3d at 209 (plaintiffs were
Furthermore, the shelf life of books is longer than that of newspapers and
magazines, which are often discarded when the next issues are published. The longer life
of boolts deepens the public conversation and understanding about facts and issues
because boolts may endure in printed form for years or generations. This durability,
however, also means that boolts are more susceptible to being misinterpreted over time
and to offending individuals who might not have cared about a single article in a
newspaper or magazine.
In addition, the economics of book authorship and publishing are different from
other forms of print media. Newspapers and magazines, when they are successful, have a
regular and predictable audience of readers for each issue. This predictability allows
some reporters to work as salaried employees and others to work for agreed
compensation as freelancers. Books are different. Many authors, especially those who
write about public issues that may be of interest to a limited audience, have no assurance
their boolts will be profitable and write them for reasons that may not be as directly
undertaking that requires a substantial investment of time. Similarly, book publishers are
not guaranteed sales. These realities of book publishing entail greater risks and
expenditures than newspaper and periodical publishing. However, because of the depth
of analysis they can offer, for many readers books provide substantive understanding that
litigation than other members of the print media, fewer boolts would be written or
published, at a great social cost. There is no principled basis for ensuring this anomalous
result by excluding book publishers from the protected class of "print media" covered by
the Statute.
Royall's assertion that the defendants in this case are not members of the print
media because they "were not disseminating any 'news"' (Royal1 Br. at 9) conflicts with
historic First Amendment principles. As the Ninth Circuit held, in a widely cited
regardless of the medium used to report the news to the public. Investigative book
authors, like more conventional reporters, have historically played a vital role in bringing
By their nature, books do not contain current news, but courts have uniformly held
that the information conveyed by books is subject to First Amendment protections. Id.;
In re Cusurnano, 162 F.3d 708, 714 (1st Cir. 1998) (recognizing that a non-journalist
"information"); Price v. Viking Penguin, Inc., 881 F.2d 1426, 1431 (8th Cir. 1989)
(applying New Yorlc Tir~zesv. Sullivan, 376 U.S. 254 (1964), to defamation claims
brought against author of book detailing the 1973 events at Wounded Knee); see also
Trump v. O'Brien, 403 N.J. Super. 281, 303-04 (2008) (explaining that the terms "news"
and "news media" are not narrowly interpreted under New Jersey law, for "society
demands the open and full flow of information and ideas whatever they may be and from
wherever they may come."). As the Third Circuit has stated, "it makes no difference
whether the intended manner of dissemination was by newspaper, magazine, book, public
opinion." Irz re Madderz, 151 F.3d 125, 128 (3d Cir. 1998) (citations omitted).
Bulldozed covers newsworthy events that were widely reported by newspapers
when they occurred. As a work of investigative reporting, it provides greater context and
deeper analysis concerning events that have continuing relevance to the Freeport, Texas,
community and to the national debate over the proper use of government's power of
Royall argues incorrectly that the Statute's legislative history mentions only "a
newspaper, radio station or television station," but his authority for this position consists
of a highly selective quotation, (Royall Br, at 9) (quoting Rogers v. Cassidy, 946 S.W.2d
439, 443 (Tex. App.-Corpus Christi 1997, no pet,)). The Corpus Christi case quoted in
Royall's brief decided, correctly, that the Statute does not authorize defamation plaintiffs
to take interlocutory appeals from the denial of their summary judgment motions. Id.
That case arose from a newspaper publication, not a book, and nothing in that decision
supports Royall's argument that boolts are not "print media" for purposes of the Statute.
of its coverage. The original sponsor of the bill, Senator Turner, identified the purpose of
the bill as to "ensure no chilling effect upon the exercise of the freedom of press and
speech." Debate on Tex. S.B. 76 on the Floor of the Senate, 73rd Leg. (Feb. 24, 1993)
(floor tape available from Senate Staff Services). The debate on the bill largely centered
even if that person was not a member of the media. Senator Turner explained the
amendment, stating that it "extends a right of appeal from summary judgment to courts of
appeal to any person whose communication appears in, or is published by, electronic or
print media." Debate on Tex. S.B. 76 on the Floor of the Senate, 73rd Leg. (Feb. 25,
1993) (floor tape available from Senate Staff Services) (emphasis added).
Nothing in the legislative history excludes boolts from the Statute's protection for
members of the print media. The House Bill Analysis cited by the Rogers court and by
Royal1 summarizes arguments made for and against the bill. Under the "Supporters Say"
section, the Bill Analysis says that "SB 76 would allow a newspaper, radio station or
television station that was sued for libel to malte an immediate appeal of a judge's refusal
to grant summary judgment. . . ." House Research Organization Bill Analysis for S.B. 76
at 42 (May 22, 1993) (attached at tab B). The language of this bill analysis, which is the
entire basis of Royall's statutory argument, does not exclude other types of print media
from being covered by the plain language of the bill. While this single sentence of the
bill analysis mentions only newspapers and not magazines and books, the remainder of
the House bill analysis is consistent with the actual language in the bill that became the
Statute.
The very next paragraph of the bill analysis states that the bill will protect "[tlhe
free-speech and free-press lights of print and electronic media." Id. The same section
states: "A free, open and robust debate on public issues can only occur [i]f the media is
protected from unreasonable intimidation through the threat of expensive libel suits." Id.
Similarly, the Senate Research Center Bill Analysis for S.B. 76 (August 26, 1993)
describes the "Purpose" of the bill as authorizing interlocutory appeals "in cases
publication." (emphasis added). These bill analyses do not support Royall's attempt to
interpret the Statute to remove books from the category of written publications.
D. A similar statute, the Texas shield law, makes clear that a book
publisher is a member of the news media.
& Remedies Code that specifically defines the news media to include book publishers.
The new Texas shield law was enacted in 2009 to protect journalists from revealing
confidential sources. The shield law's stated purpose "is to increase the free flow of
information and preserve a free and active press and, at the same time, protect the right of
the public to effective law enforcement and the fair administration of justice." TEX.CIV.
The shield law includes a list of statutory definitions that are relevant to the proper
interpretation of the Statute. See Kaufmnn, 291 S.W.3d at 142 (citing Texas shield law to
the media through his internet publications."). The shield law defines a "journalist" in
the broadest terms, as a person who "gathers, compiles, prepares, collects, photographs,
that is disseminated by a news medium.. . ." TEX. CIV. PRAC.& REM. CODEANN.
means, including (A) print . . . ." Id. at § 22.021(3) (emphasis added). Obviously, a book
The Legislature's definition of "news medium" in the new shield law defeats
Royall's argument that the Statute should be construed differently, as both laws deal with
similar language and subjects. When construing a statutory word or phrase, Texas courts
consider the meaning of the same or similar language used elsewhere in the act or in
another act of similar nature, Kaufman, 291 S.W.3d at 142; I, & M-Surco Mfg., Inc. v.
Wirzn Title Co., 580 S.W.2d 920, 926 (Tex. Civ. App.-Tyler 1979, writ dism'd);
Guthery v. Taylor, 112 S.W.3d 715, 721 (Tex. App.-Houston [14th Dist.] 2003, no
pet.). Courts are not to give an undefined statutory term a meaning out of harmony or
inconsistent with other provisions. Tex. Dep 't of Transp. v. Needham, 82 S.W.3d 3 14,
3 18 (Tex. 2002). Under these principles of statutory construction, there can be no serious
11. Royal1 is a limited-purpose public figure for purposes of his defamation suit.
Defamation cases give rise to two competing values: "the need for a vigorous and
uninhibited press and the legitimate interest in redressing wrongful injury." Gertz v.
Robert Welch, Inc., 418 U.S. 323, 341 (1974). The United States Supreme Court
balanced these interests by recognizing two categories of plaintiffs: public and private
figures. Id. at 343-44. To prevail, public figures must demonstrate by clear and
convincing evidence that a defendant acted with actual malice. Id. at 342. This
heightened protection allows the freedoms of speech and of the press "that breathing
expectations and, hence, predictable results. Id, at 343. By arguing that the Court must
evaluate whether Royall was a public figure as of the time he agreed to help Freeport
with its marina project, Royall advocates a position that would destroy this consistency
and embroil Texas courts in a subjective inquiry into whether a plaintiff voluntarily
entered a public controversy years before it even began. This stance marlts a clear
departure from the roots of the public-figure doctrine. It also inhibits media coverage of
plaintiff is a public figure without a detailed - and perhaps fruitless - inquiry into the
origins of the plaintiffs involvement in the controversy. This uncertainty undercuts the
purpose public figure "voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues." Id. at
35 1. Under Texas law, an individual may become a public figure by choosing "to engage
backwards nearly five years from the time Bulldozed was published to determine
whether, by accepting the marina project in 2002, Royall engaged in a course of conduct
bound to invite attention and comment. (Royal1 Br. at 17.) However, there is no need for
test is an open question in Texas. McLemore, 978 S.W.2d at 572. The better view, truer
to First Amendment principles, is that "voluntariness" is not required. The facts of this
case illustrate the significant adverse consequences if the Court were to adopt a rule that
required the media to conduct a searching inquiry into events occurring years before
publication.
The distinction between public and private figures was established by the United
States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The Court
recognized the underlying tension in all media defamation cases between the need for a
vigorous and uninhibited press and the state interest in compensating individuals harmed
balancing of these interests, concluding that it would lead to "unpredictable results and
uncertain expectations." Id, at 343-44. Instead, the Court created two categories of
plaintiffs - public and private figures - to approximate the relative weight of these
In creating these categories, the Court focused on the defamation plaintiff. Public
figures, as opposed to private figures, generally: (1) enjoy greater access to the media
enabling them to counteract false statements, and (2) invite attention and comment. Id, at
344-45. For these reasons, the Court concluded that private figures usually are more
susceptible to injury and more deserving of recovery. Id at 345. Accordingly, the state
has a stronger interest in compensating private figures, as opposed to public figures, who
suffer harm caused by defamatory falsehood. The stronger state interest justifies
However, as the Supreme Court noted, "it is often true that not all of the
considerations which justify adoption of a given rule will obtain in each particular case
decided under its authority." Id. at 344. The Court anticipated that the generalizations
that justified the creation of different liability rules for public and private figures - access
to the media and action inviting comment - would not apply in every case. To the
contrary, the Court foresaw the possibility of an involuntary public figure. Id. at 345 ("it
may be possible for someone to become a public figure through no purposeful action of
his own").
The Supreme Court acknowledged that public figure status is determined from the
perspective of the media defendant: "Even if the foregoing generalities do not obtain in
every instance, the comnzunicatioizs media are entitled to act on the assumption that ...
public figures have voluntarily exposed themselves to increased risk of injury from
defamatory falsehood." Id. at 345 (emphasis added). Thus, the Court implicitly
recognized that media defendants are not required to delve into an individual's extended
throughout the Court's jurisprudence. See, e.g., Hutclzirzson v. Proxmire, 443 U.S. 111,
135-36 (1979); Wolstoiz v. Reader's Digest Ass 'n, 443 U.S. 157, 166-69 (1979). Rather,
the Court created two paths to public-figure status. An individual becomes a public
figure if he either (1) occupies a central role in a public controversy or (2) voluntarily
injects himself into a public controversy. See, e.g., Gertz, 41 8 U.S. at 35 1 ("an individual
voluntarily injects himself or is drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues") (emphasis added). Either criterion
is sufficient, although in practice many plaintiffs satisfy both. Neither path necessitates a
searching inquiry into events occurring years before the media reports on a public
controversy.
Ass 'n, 443 U.S. 157 (1979), to argue that an individual must voluntarily seek media
the plaintiff failed to respond to a subpoena to appear before a grand jury conducting a
major investigation into the activities of Soviet intelligence agents in the United States.
Id. at 161-62. The Court concluded that it was "clear that petitioner played only a minor
role in whatever public controversy there may have been concerning the investigation of
Soviet espionage." Id. at 167. The Court then noted that the plaintiff did not voluntarily
inject himself into the debate by using the contempt citation as a fulcrum to create public
discussion. Id, at 168. In other words, the plaintiff did not achieve public-figure status
either by virtue of (I) occupying a central role in the controversy or (2) voluntarily
In contrast, the Supreme Court's decision in Greenbelt Coop. Publ'g Ass 'n, Inc, v.
Bresler, 398 U.S. 6 (1970), illustrates that an individual may become a limited-purpose
the Court concluded that a local real estate developer and builder was a public figure
because he was "deeply involved in the future development of the city. " Id, at 8. The
Court stated: "[The developer] had entered into agreements with the city for zoning
variances in the past, and was again seeking such favors to permit the construction of
housing units of a type not contemplated in the original city plan. At the same time the
city was trying to obtain a tract of land owned by [the plaintiffl for the purpose of
building a school." Id, at 8-9. Without pausing to consider whether the plaintiff sought
press attention or whether the plaintiff should have foreseen that filing an application for
a zoning variance would later place him at the center of a public controversy, the Court
concluded: "[The plaintiffs] status thus clearly fell within even the most restrictive
Gertz. It demonstrates that the inquiry into public figure status is determined from the
perspective of the coinmunications media and that it is not necessary "for all of the
considerations which justify adoption of a given rule [to] obtain in each particular case
central role in a newsworthy real estate development in the City of Freeport. Royall was
the developer of a major public-private project and the signatory of every major
agreement related to the project. When Bulldozed was published in 2007, Royall -
controversy sui~oundingthe Freeport marina project. There is no need to delve years into
the past to determine if Royall could have foreseen the controversy that would later arise.
Royall argues that Main and Encounter were required to submit summary
judgment evidence "showing that Royall thrust himself to the forefront of the dispute
concerning the marina project to influence the resolution of the issues involved" or that
exposure and injury to reputation." Thus, he seems to argue that Main, whose book came
out in 2007, should have determined whether Royall intended to generate a public
This would be an extraordinary burden for the law to assign to a book author or
any other member of the media. Members of the media must be entitled to rely on the
To hold othenvise would create uncertainty that would severely hamper First
Amendment protections. As the following section explains, the better view of First
identify limited-purpose public figures, leading the Fifth Circuit to observe over a decade
later that "defining a public figure has been likened to trying to nail a jellyfish to the
wall." Trotter v. Jaclc Anderson Enter., Inc., 818 F.2d 43 1, 433 (5th Cir. 1987). To give
shape to the inquiry, the Fifth Circuit adopted a three-factor test to guide the
public both in the sense that people are discussing it and people other than the immediate
participants in the controversy are likely to feel the impact of its resolution; (2) the
plaintiff must have more than a trivial or tangential role in the controversy; and (3) the
Id, This three factor test was later adopted by the Texas courts. See, e.g., McLemore,
978 S.W.2d at 571-72. As noted by the Texas Supreme Court, this test "does not
controversy and those who are involuntarily drawn into a controversy." Id. This was not
accidental.
The Fifth Circuit test originated in the District of Columbia Circuit. See
Waldbazim v. Fairchild Pub1'n, Inc., 627 F.2d 1287 (1980). In developing this test, the
Clear guidelines are important, first, for the press. As noted above, the
entire scheme of "strategic protection" for certain defamatory statements
rests not on the inherent value of those statements but instead on the need to
avoid chilling the dissemination of information and ideas that are
constitutionally protected for their own sake. Because the outcome of
future litigation is never certain, members of the press might choose to err
on the side of suppression when trying to predict how a court would
analyze a news story's first amendment status. Questionable areas thus
receive prophylactic protection to ensure that the press will not refrain from
publishing material that has value under the first amendment due to its own
content.
Id, at 1293 (internal citation omitted). For these same reasons, "a court analyzing
whether a given plaintiff is a public figure must look at the facts, taken as a whole,
through the eyes of a reasonable person." Id. The D.C. Circuit recognized that such an
"objective approach should enable both the press and the individual in question to assess
the individual's status, in advance, against the same yardstick." Id. Applying these
principles, the court concluded that to be a public figure: "The plaintiff either must have
been purposely trying to influence the outcome or could realistically have been expected,
because of his position in the controversy, to have an impact on its resolution." Id. at
public figure. See Da~neronv. Washingtoiz Magazine, IT?,^., 779 F.2d 736, 740-43 (D.C.
Cis. 1985). In Dameron, the plaintiff was the sole air traffic controller on duty at Dulles
airport the day that a plane crashed into a mountain on its approach to the airport. Id, at
738. The court concluded: "There is no question that Dameron played a central, albeit
involuntary, role in the controversy." Id. at 741. "He became embroiled, through no
desire of his own, in the ensuing controversy over the causes of the accident. He thereby
became well laown to the public in this one very limited connection." Id. at 742. In
Dameron, as here, a searching inquiry into whether the plaintiff could have foreseen the
subsequent controversy at the time he assumed the role of air traffic controller would
Less than two years later, the Fifth Circuit expressly adopted the Waldbaum three-
part test. See Trotter v. Jaclz Anderson Enter., Inc., 818 F.2d 431 (5th Cir. 1987). In
City. 8 18 F.2d at 432, A political columnist published two articles about a prolonged
and violent labor conflict at the Coca-Cola plant. Id. One of the articles reported that
there was "an uninercifully ruthless campaign of intimidation and terror orchestrated by
the plant management and its American owner, John Clinton Trotter." Id. at 433. Trotter
sued for libel. The district court granted the defendant's motion for summary judgment,
concluding that Trotter was a public figure. Id. The Fifth Circuit affirmed, stating: "By
virtue of his position at [the Coca-Cola plant] Trotter was a central figure in important
policy matters at [the plant], including the labor union controversy." Id. at 435. The
court did not analyze whether Trotter could have foreseen, at the time he accepted a
position as president of the plant, that it might later place him in the center of a widely
publicized labor controversy. Nor was the Fifth Circuit persuaded by Trotter's
contention that he never sought public attention. Instead, it held: "While an individual
his access to the media, an individual cannot erase his public-figure status by limiting
Marina, Royall became a central figure in a highly controversial eminent domain project.
He could not erase his public-figure status by refusing to talk to the media or by
maintaining a low public profile. From the perspective of a reasonable person evaluating
the circumstances at the time of publication, he "could realistically have been expected,
Waldbaum, 627 F.2d at 1297. To require a more searching inquiry would hamper First
Amendment protections.
Citing the Fourth Circuit's opinion in Carr v. Forbes, Inc., 259 F.3d 273 (4th Cis.
2001),' Royall asserts that public figures are not created merely by contracting with the
government or accepting public money. (Appellee's Br. at 15.) This is true. For
example, in Hutchirzson v. Proxnzire, 443 U.S. 111 (1979) the United States Supreme
Court rejected the use of subject-matter classifications to determine the extent of First
for defamation arising out of the Senator's grant of the "Golden Fleece" award to federal
agencies sponsoring the scientist's research. Id. at 114. The Court concluded that the
scientist was a private figure because there was no "public controversy" surrounding his
research at the time the Senator bestowed the "Golden Fleece" award. Id. at 135. The
Court noted that a national debate regarding general public expenditures could not satisfy
' Forbes itself provides little guidance. The Fourth Circuit employs a five-factor test to determine
whether a plaintiff is a limited-purpose public figure. 259 F.3d at 280. This test differs from the three-
factor test adopted by the Fifth Circuit and the Texas Supreme Court. See Trotter, 818 F.2d at 431;
McLenzore, 978 S.W.2d at 57 1-72.
the requirement for a "public controversy" othenvise "everyone who received or
benefited from the myriad public grants for research could be classified as a public
figure." Id.
Here, by contrast, Royall is not a public figure merely because he contracted with
the government and accepted public money. If the City of Freeport had not used its
power of eminent domain to pressure people to sell and then later filed eminent domain
proceedings that subsequently sparked years of litigation, political action, and public
debate, Royall might have remained a relatively unlcnown private individual. However,
events took a different course, and the marina project, unlike the scientist's research in
Whether voluntarily or not, Royall occupied a position at the heart of this major
public controversy. It would have appeared to any reasonable person in 2007 that Royall
was in a position to have an impact on the marina project. Neither this Court nor the
media are required to engage in a laborious inquiry into the origins of Royall's
S.W.2d at 572, the courts have not been silent on this issue. Royall cites the Texas
public figure must voluntarily engage in activities that necessarily involved the risk of
increased exposure and injury to reputation. (Appellee's Br. at 14.) But McLemore does
not stand for such a broad proposition. To the contrary, the Court stated: "Because ...
McLemore clearly voluntarily injected himself into the controversy at issue, we need not
public-figure test." Id. In McLemore, the Court held that a journalist covering a
controversial and well-publicized ATF raid "assumed a risk that his involvement in the
event would be subject to public debate" because he chose "to engage in activities that
necessarily involved increased public exposure and media scrutiny." Id. at 573. Yet by
Viewed as a whole, McLernore also suggests that the Texas Supreme Court would
follow the Fifth Circuit and the District of Columbia Circuit. The opinion draws heavily
on the decisions in Trotter and Waldbaum. Id, at 571-73. In fact, the Court adopted and
applied the three-factor test laid out in those opinions. Both Trotter and Waldbaum
represent well-reasoned opinions, faithful to both the Supreme Court's call for
consistency and predictability in the law of defamation and to its vision of an involuntary
public figure. See Trotter, 818 F.2d at 435-36; Waldbaum, 627 F.2d at 1298.
Accordingly, this Court should follow these authorities, reject Royall's premise that
conclude that the media is entitled to rely on the circumstances as they appear at the time
of publication.
This Court would not be the first Texas appellate court to reach this conclusion. In
1998, the San Antonio Court of Appeals recognized an involuntary public figure. See
Swate v. Schiffers, 975 S.W.2d 70 (Tex. App.-San Antonio 1998, pet. denied). In
Swate, a doctor sued media defendants alleging that a newspaper article falsely stated that
he engaged in professional and criminal misconduct. Id. at 75. The media defendants
argued that Swate was a limited-purpose public figure. I d Swate filed an affidavit
stating that he had "not been an advocate or attempted to influence the resolution of any
public controversies." Id. at 75-76. Rather, Swate argued that he had "been drawn into
court and state action." Id. at 76. The San Antonio court rejected this position,
concluding: "Although Swate may not have voluntarily injected himself into controversy,
he has certainly been drawn into controversy, so much so that the trial court properly
concluded as a matter of law that Swate is a public figure for the purposes of this
lawsuit." Id.
Thus, although this Court would be among the first of the Texas intermediate
authority supporting the extension of the doctrine laid out in McLenzore to involuntary
public figures.
In 2009, the Houston First Court of Appeals rejected an argument that a plaintiff can become an
involuntary public figure simply based on the relationship of his conduct to a public official. See
Klentzn~un11. Curter Publ'n, Inc., No. 01-07-00520-CV, 2009 Tex. App. LEXIS 9917, at "48 (Tex.
App.-Houston [lst Dist.] Dec. 31, 2009, no pet.). In Klenzman, the media defendant published an
article including references to the son of the chief deputy sheriff for Fort Bend County. Id, at "3. The
article described the ticketing of the son for a minor-in-possession of alcohol charge and alleged that the
sheriff held "roadside suppression hearings" with deputies involved in the incident. Id, at "4. Thus, the
plaintiff did not satisfy either route to public figure status - namely, occupying a central position in the
controversy or voluntarily seeking to illject himself into the controversy. The plaintiffs relationship to a
public figure provides no basis for altering this analysis. However, this opinion sheds little light on
whether a plaintiff can become a public figure based on the central role he occupies in a controversy.
In sum, this Court should reject Royall's argument that "public figure" status must
be determined at the origin of Royall's involvement with the Freeport marina project and
its underlying premise that a public figure must voluntarily assume a central role in a
controversy. To ensure the freedoms of speech and press that "breathing space" essential
to their exercise, the media must be entitled to rely on the objective circumstances
publication. This approach remains true to the rationale set forth by the United States
Supreme Court in Gertz and the subsequent evolution of the public figure doctrine in the
CONCLUSION
involuntary public figures in Texas. These arguments are inconsistent with the
procedural protections provided by the Statute and the substantive protections granted by
HAYNES
AND BOONE,LLP
COUNSEL
FOR AMICUS
CURIAE
CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure, I certify that a true
and correct copy of this Brief of Amicus Curiae Association of American Publishers was
sent to the following counsel via certified mail on July 16,2010:
Matthew R. Miller
Wesley Hottot
INSTITUTEFOR JUSTICE- TEXASCHAPTER
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Austin, Texas 78701
Dana Berliner
INSTITUTEFOR JUSTICE
901 N. Glebe Road, Suite 900
Arlington, Virginia 22203
John J. Little
Megan Dredla
LITTLEPEDERSEN FANICHAUSERLLP
901 Main Street, Suite 41 10
Dallas, Texas 75202
Robest Gilbreath
HAWKINS, PARNELL & THACKSTON,
LLP
45 14 Cole Avenue, Suite 500
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Patlick Zummo
3900 Essex Lane, Suite 800
Houston, Texas 77027
Polly ~ra$am