Sylvester Turner, Petitioner

KTRK Television, Inc. and Wayne Dolcefino, Respondents

Justice Hecht, joined by Justice Owen, concurring in part and dissenting in part, and concurring in the judgment.

The Court holds in Part II of its opinion that a jury may find that a television news report critical of a public figure was false because it omitted facts that could have led a reasonable viewer to form a less adverse impression of the public figure. Such a lenient standard for measuring evidence of falsity -- whether a reasonable person could have thought a news report any less damaging to a public figure if other facts had been included -- is inconsistent with the rule that a statement is not defamatory if it is substantially true, and significantly threatens open and vigorous discourse about matters of public interest. As the Court's analysis in this case demonstrates, almost any fact favorable to the subject of a news report, but omitted from its broadcast, could cause a reasonable person to think differently, and perhaps better, about the subject; thus, any such omission, under the Court's standard, would support a finding that the broadcast was false. In my view, an omission or juxtaposition of facts from a broadcast about a public figure cannot support a finding that the broadcast was false absent clear and convincing evidence ⁽¹⁾

that but for the omission or juxtaposition a reasonable person would have had a better opinion of the public figure.

I do not disagree with the Court that a report may be false in import even if every statement made is itself true, and that such a report should be actionable. Omissions, half-truths, distortions, and innuendo can make a report as false as outright lies. True statements may be made in a context that does not create a truthful impression. For example, if KTRK had reported that Judge Hutchison was involved in a possible insurance scam without adding that his only involvement was in presiding over a case in which there was evidence of an insurance scam, the report, while true, would create the completely false impression that the judge's involvement was improper. An ordinary listener cannot be expected to parse "involved" finely enough to conclude that the judge was merely doing his job. The media can well appreciate how words can be woven to mislead and injure without making any false statement, and the prospect of liability for such conduct poses no threat to legitimate discourse.

Here, the broadcast reported that Turner was "deeply involved in the Sylvester Foster case and the attempt to get life insurance companies to pay off 6.5 million dollars in the wake of the disappearance." But the report did not stop there; its other details explained exactly how Turner was "involved" -- that Turner was acting as a lawyer in drafting the will for Foster and in representing Thomas in the probate proceeding. The description of Turner's activities is substantially true; any errors in describing the precise time period involved in preparing the will, the amount of the insurance coverage, and the capacity in which Turner's client appeared in the probate proceeding, are immaterial. Mere speculation about what Turner knew, and when he knew it, is not actionable, and neither is any implied criticism about Turner's choice of clients.

Legitimate discourse is significantly impaired if the test for determining whether a report has created a false impression by the omission of juxtaposition of facts is merely that a reasonable person could have formed a less negative impression of a public figure had the report been different. The omission of almost any fact favorable to the public figure passes this test, as the Court's analysis proves. Twice the Court says that an accurate broadcast by KTRK and Dolcefino would have raised "serious", "troubling" questions about Turner's association with Foster and Thomas and would not have been actionable. ⁽²⁾ But the Court concludes that the broadcast falsely suggested that Turner not only had questionable associations but that he was personally involved in a scam.

According to the Court, "the broadcast's most misleading omission concerned Turner's actions as lawyer for Foster's estate." ⁽³⁾ The following four omissions, the Court says, could have caused a reasonable viewer to think that Turner was more personally involved:

by stating that Turner had moved to have Thomas appointed administrator of Foster's estate, without explaining that Thomas had been named independent executor in Foster's will and Turner's actions were no different than any attorney hired to probate a will;

by failing to state that Foster's father was the primary beneficiary under Foster's will, leaving the impression that Turner or Thomas might have benefitted personally from the probate of the will;

by stating that Turner was removed as the attorney for the estate for a conflict of interest without explaining that the conflict was not unethical conduct but was simply that Turner would be a fact witness in the case and could not therefore serve as legal counsel also; and

by stating that Turner's application to be paid his legal fees was rejected without explaining why, even though the record itself contains no clear explanation.

Somewhat inconsistently, the Court concludes in Part III of its opinion that Dolcefino cannot be faulted for omitting these facts because as a non-lawyer, he may not have understood their significance in the probate proceeding. If Dolcefino, a veteran reporter who investigated the proceeding before broadcasting his report, did not understand the significance of the facts the Court now thinks should have been included, it is not immediately clear why an ordinary viewer would have had any better understanding. But inconsistency aside, the analysis shows how relaxed the Court's standard for falsity is when facts are omitted from a report. Could a reasonable viewer have been less inclined to think that Turner stood to gain personally from his actions if the omitted facts had been included in Dolcefino's report? Sure. Would a reasonable person have been less inclined to think Turner would benefit personally? Maybe, but the Court does not even ask this question. The determinative question should be: if a reasonable viewer was misled by the omission of information into thinking that Turner was trying to benefit personally from an insurance scam, is it clear that this reasonable viewer would think better of Turner if the additional information persuaded him that Turner was only unknowingly helping a friend perpetrate a scam? In the Court's view, for the jury to have found that the report was false, all that is necessary is that it was possible for a reasonable person to have thought less of Turner than he might have if he had known the omitted facts.

The only other omission the Court finds misleading is not really an omission but rather the confusion in the report about whether Turner drew up Foster's will three days or three to four weeks before Foster died. The fact that Turner worked on Foster's will for weeks instead of days was enough, the Court says, for a reasonable viewer to have thought better of him. Somewhat inconsistently, the Court concludes that an average viewer would not have cared whether the scam involved $6.5 million or only $875,000. Misstating the amount involved by a factor of seven could not have been misleading; misstating the time period Turner worked on the will by the same factor was misleading. My point is simply that if the standard for determining falsity is nothing more than what a reasonable viewer could have thought, almost any omission can pass.

A statement need not be absolutely true to avoid liability for defamation; substantial truth is enough. ⁽⁴⁾ Under Texas law, "[t]he test used in deciding whether [a statement] is substantially true involves consideration of whether the alleged defamatory statement was more damaging to [the plaintiff's] reputation, in the mind of the average listener, than a truthful statement would have been." ⁽⁵⁾ The Court lowers the bar for determining whether the omission or juxtaposition of facts makes a report less than substantially true (what the Court calls "substantially false"). The relevant inquiry, according to the Court, is not whether the report was more damaging than a more complete statement would have been, but whether any omitted fact could have influenced the viewer's thinking. Under this rule, a report that contains nothing but true facts but omits some facts is much less likely to be substantially true than a single incorrect statement. Since virtually any news report on a complex subject involves some editorial determination of what to include and what to exclude, the threat that the report may be found to have been false is increased by the test the Court uses in this case.

The Court's test for falsity, combined with the high test for actual malice, makes its conclusions strikingly incongruous. According to the Court, Turner acted as legal counsel for a long-time friend, Thomas, and for Thomas's friend, inadvertently furthering an insurance scam that Turner himself knew nothing about. By omitting facts about technical aspects of the probate proceeding from their report, KTRK and Dolcefino made it possible for a reasonable viewer to think that Turner knew of the scam and stood to benefit himself. But, the Court concludes, this veteran reporter was not a lawyer and did not appreciate the significance of what he was doing; he simply bungled the story by leaving out key facts. And had those facts been part of the report, it is possible that an average viewer -- also a non-lawyer with no appreciation of the significance of the added information -- might not have been as critical of Turner's conduct. This is a crooked furrow to plough.

Public figures criticized in the public press frequently complain that the media has not told the whole story and that had it done so, they would have appeared in a more favorable light. In the Court's view, free discourse is adequately protected from such complaints as long as the media can plausibly claim negligence and thereby defeat proof of actual malice. This is a tortuous approach to guarantying a fundamental freedom. I would simply require that a claim that a report is false because of the omission or juxtaposition of facts be proved by clear and convincing evidence.

I would hold that the proof of falsity in this case, as well as the proof of actual malice, is insufficient. Accordingly, I concur only in Parts I and III of the Court's opinion and in the judgment.

Nathan L. Hecht

Justice

Opinion delivered: December 21, 2000

1. See Harte Hanks Communications v. Connaughton, 491 U.S. 657, 661 n.2 (1989) (noting, but expressing no opinion, on the debate as to whether falsity mut be shown by clear and convincing evidence), and the cases cited therein.

2. Ante at ___, ___.

3. Ante at ___.

4. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990).

5. Id. at 16 (emphasis added).