By Anna Nguyen, Silha Research Assistant
A Texas appeals court has ruled again that the First Amendment does not protect a weekly newspaper's satirical piece. The 2nd Court of Appeals in Fort Worth, Texas on Nov. 21, 2002 rejected the Dallas Observer's request to throw out a libel lawsuit filed by two Denton County officials in New Times, Inc v. Isaacks, 91 S.W. 3d 844 (Tex. Ct. App. 2002).
This is the second appeal the Dallas Observer has lost. The appeals court issued a similar ruling in May 2002 and then reconsidered the issue upon the Observer's motion for rehearing. The same three-judge panel heard both appeals.
Citing New York Times v. Sullivan, 376 U.S. 254 (1964), the court determined that the newspaper failed to establish a lack of actual malice despite its claim that its article was protected as satire.
The piece was a parody of an actual arrest of a Ponder, Texas student on Oct. 28, 1999. In that case, Judge Darlene Whitten detained Christopher Beamon, who was 13 at the time, after he wrote a Halloween story about a shooting death of a teacher and two classmates. The incident had occurred six months after two high school students had killed 12 students and a teacher before taking their own lives in Columbine High School in Colorado.
Beamon was released from a juvenile facility after five days. The incident drew national attention at the time.
On Nov. 11, 1999, the newspaper published an article, headlined "Stop the Madness," about the arrest of six-year-old girl who was jailed and put in shackles. The story was placed in the news section of the print and Web site editions, reporting "[in] the second homework-related arrest in many weeks, a Denton County juvenile court judge [Whitten] jailed a Ponder student on suspicions of making a terroristic threat. . . ." Staff writer Rose Farley wrote that Cindy Bradley, a 6-year-old, was arrested during "story-time" because of a book report she had written about the children's classic Where the Wild Things Are by Maurice Sendak. Farley wrote that Whitten detained Bradley for ten days in the juvenile facility while prosecutors decided whether or not to file charges. The article purported to quote Whitten, speaking to Bradley from the bench, "Any implications of violence in a school situation, even if it was just contained in a first-grader's book report, is reason enough for panic and overreaction. It's time for you to grow up, young lady, and it's time for us to stop treating kids like children." The article also reported that Denton County District Attorney Bruce Isaacks said, "We've considered having her certified to stand trial as an adult, but even in Texas there are some limits."
The article recounted that courthouse security officers ordered shackles for Bradley after they reviewed her school record, which included "reprimands for spraying a boy with pineapple juice and sitting on her feet." A photograph of the daughter of a staff writer accompanied the story. The story concluded with the incident involving Christopher Beamon, the only part of story that was not fabricated.
After the publication of the piece, complaints about Whitten and Isaacks were received and posted on the paper's Web site, accusing the officials of incompetence and calling for a dismissal from their offices. Whitten and Isaacks were also contacted by readers and news media about the story.
After Whitten and Isaacks demanded a retraction from the Dallas Observer, Patrick Williams, managing editor of news, responded in the "Buzz" column of the next weekly edition that the article was a satire, and described readers who believed the report as "cerebrally challenged" and "clueless."
The November opinion by Judge Anne Gardner concluded the newspaper had not sufficiently indicated that the article was meant to be satire. The court cited the placement of the article under the label "news," together with the picture of the girl which added realism to the story. The situation described, Gardner wrote "was not of impossible nature," referring to the Beamon incident the week before.
Gardner also referred to the affidavits from Farley, Williams and Lyons, who was the editor-in-chief at the time. All three denied any intention to knowingly make false statements of fact or act in with reckless disregard when they created on the satire. The newspaper wanted to show the absurdity with which Beamon was treated by taking it to the extreme and by ridiculing the actions of panicked adults, according to the affidavits.
But Gardner wrote, "Much of what is presented in the above-discussed affidavits about the affiants' beliefs concerning how the article would be perceived is conclusory and is therefore not competent summary judgment evidence." The court cited statements from the appellants in their deposition testimony, including Farley's admission that the article was intended to hold Isaacks and Whitten up for public ridicule, that she did not interview Isaacks and Whitten, and that the quotes attributed to them were fabricated. Farley denied the story was false, but admitted it was fictional. The court concluded the Dallas Observer knew or strongly suspected that the article was false and defamatory.
James Hemphill, an Austin attorney representing the newspaper, said his clients have asked the Texas Supreme Court to review the case, but there is no timetable for when the court has to decide whether or not to take the case. "It could be next week, it could be several months," he wrote in an e-mail in response to questions.