            




                       IN THE SUPREME COURT OF TEXAS
                                                    ══════════
                                                       No. 16-0098
                                                    ══════════

               THE DALLAS MORNING NEWS, INC. AND STEVE BLOW, PETITIONERS,

                                                              v.


                           JOHN TATUM AND MARY ANN TATUM, RESPONDENTS

                     ══════════════════════════════════════════
                                  ON PETITION FOR REVIEW FROM THE
                           COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
                     ══════════════════════════════════════════

           JUSTICE BOYD, joined by JUSTICE LEHRMANN and JUSTICE BLACKLOCK, concurring.

           I imagine it’s no surprise by now that many courts and commentators have complained that

defamation law is a “quagmire,”1 lacks “clarity and certainty,”2 is “overly confusing”3 and

“convoluted,”4 leaves courts “hopelessly and irretrievably confused,”5 and “has spawned a morass

of case law in which consistency and harmony have long ago disappeared.”6 I’m afraid Part III.A.



                                               
           1
               Curtis Pub. Co. v. Butts, 388 U.S. 130, 171 (1967) (Black, J., concurring).
           2
         Arlen W. Langvardt, Media Defendants, Public Concerns, and Public Plaintiffs: Toward Fashioning Order
from Confusion in Defamation Law, 49 U. PITT. L. REV. 91, 94 (1987).
           3
         Rodney A. Smolla, Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U. PA. L.
REV. 1, 63 (1983); see also Lisa K. West, Milkovich v. Lorain Journal Co.—Demise of the Opinion Privilege in
Defamation, 36 VILL. L. REV. 647, 687 n.22 (1991) (addressing the “confusing state” of defamation law).
           4
               Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 514 (S.C. 1998) (Toal, J., concurring).
           5
               Id.
           6
          Mittelman v. Witous, 552 N.E.2d 973, 978 (Ill. 1989), abrogated by Kuwik v. Starmark Star Mktg. & Admin.,
Inc., 619 N.E.2d 129 (Ill. 1993).


            
        
        


of the Court’s opinion in this case—in which the Court addresses whether Steve Blow’s column

was reasonably capable of a defamatory meaning—tends to prove their point. Of course, the Court

is writing on a cluttered slate. But I fear its effort to advance the law by introducing new

terminology and addressing concepts unnecessary to this decision only makes things worse.

       The Court begins its twenty-five-page analysis by introducing the new labels “textual

defamation” and “extrinsic defamation” for what courts have always called “defamation per se”

and “defamation per quod.” This case involves textual defamation, the Court explains, which

includes both explicit defamation—which is textual and does not involve extrinsic evidence—and

implicit defamation (which the Court now calls defamation by implication)—which exists when a

publication’s text creates a false and defamatory impression (making it the converse of the

substantial-truth doctrine), but is not to be confused with defamation by innuendo, which is

actually a type of extrinsic defamation. Textual defamation by implication involves the

publication’s gist, which may arise implicitly because of the article’s as-a-whole gist (in which

case the substantial-truth doctrine may apply), but only if it is reasonably capable of a defamatory

meaning, which does not mean it is or is not ambiguous, but does mean it is capable of at least one

defamatory meaning, and whether it is ambiguous depends on how many meanings it is reasonably

capable of, but that does not mean all reasonable readers would perceive all possible implications

because that standard when applied in gist cases renders the objectively reasonable reader

redundant. Or defamation by implication may arise from a partial or discrete implication, which

really means the gist of a part of the article (but the Court doesn’t call that a gist), to which

implication the substantial-truth doctrine does not apply. But it does not mean that a reasonable

reader could perceive a defamatory meaning, and instead means that the implication the plaintiff


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alleges arises from an objectively reasonable reading, although the implication may or may not be

ambiguous. But regardless of whether the defamation by implication arises from the as-a-whole

gist or a discrete implication, the decision whether it is reasonably capable of a defamatory

meaning must not exert too great a chilling effect on First Amendment activities—a particular

concern in implication cases. So the plaintiff has an especially rigorous burden in such cases, which

does not impose a heightened standard of meaning and does not make the implication

presumptively an opinion, but does require the plaintiff to provide additional affirmative evidence

from the text itself that suggests the defendant objectively intended or endorsed the defamatory

inference, a likely scenario if the gist is capable of a defamatory meaning but not necessarily likely

if the discrete implication is capable of a defamatory meaning, so the court must conduct an

especially vigorous review to confirm the defendant’s intent to convey the meaning the plaintiff

alleges.

           Got it?

           A few years ago, a group of organizations that tend to care a lot about defamation law

appeared as amici curiae in a case and urged us to “scrap the traditional distinction between per se

and per quod defamation,” complaining of the “labels’ needless opacity.”7 We declined the

opportunity, but we did note one First Amendment scholar’s assertion that the “ostensibly simple

classification system . . . has gone through so many bizarre twists and turns over the last two

centuries that the entire area is now a baffling maze of terms with double meanings, variations




                                               
           7
               Waste Mgmt. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 146 (Tex. 2014).

                                                             3
            
            


upon variations, and multiple lines of precedent.”8 I’m beginning to think the amici and the scholar

have a point. They’re certainly not alone in their view that “nothing short of a fresh start can bring

any sanity, and predictability, to this very important area of the law.”9

           I’m not yet ready to scrap our convoluted principles. I can accept the idea that defamation

law must be fairly complicated due to its “frequent collision . . . with the overriding constitutional

principles of free speech and free press.”10 Despite its “technical complexity,” defamation law has

“shown remarkable stamina in the teeth of centuries of acid criticism,” which “may reflect one

useful strategy for a legal system forced against its ultimate better judgment to deal with dignitary

harms.”11 But we should always do our best to reduce the confusion, or, at least, avoid adding to

it.

           The question in this case is pretty simple: For summary-judgment purposes, was Blow’s

column reasonably capable of a defamatory meaning? We need not—and the Court does not—

announce any new substantive legal principles to decide that issue. Applying (but renaming) our

existing principles, the Court concludes the column was reasonably capable of conveying the

meaning that the Tatums published a deceptive obituary, which is defamatory, but not that their

son had a mental illness or that the Tatums exacerbated the problem of suicide. I agree, but I cannot



                                               
           8
               Id. (quoting 2 RODNEY SMOLLA, LAW OF DEFAMATION § 7:1 (2d ed. 2010)).
           9
          Holtzscheiter, 506 S.E.2d at 514 (Toal, J., concurring); see also Ty Camp, Dazed and Confused: The State
of Defamation Law in Texas, 57 BAYLOR L. REV. 303, 304 (2005) (attempting to “clear up the [defamation] statute
and the case law and provide attorneys with a rule that is clear and easy to apply”).
           10
           11 Lawrence R. Ahern, III, et al., West’s Legal Forms, Debtor & Creditor Non-Bankruptcy § 10:52 (4th
ed. 2017) (commentary).
           11
           Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP.
PROBS. 326, 341 (1966).

                                                         4
        
        


join the Court’s analysis. The answer certainly requires some consideration of the column’s

implications and gists, and perhaps those are necessarily complicated matters; but if nothing else,

we need not rewrite and relabel our existing considerations.

        I agree that the Tatums provided some evidence that Blow’s column was reasonably

capable of conveying the defamatory meaning that the Tatums published a deceptive obituary. I

also agree, however, that if the column expressed that assertion, it expressed it as Blow’s opinion,

not as a fact. Because the column only expressed a potentially defamatory opinion, the Tatums

cannot recover for defamation, and we need not also consider whether Blow’s opinion was correct

or substantially true. For these reasons, I join the Court’s judgment and all but parts III.A and III.C

of its opinion.




                                                       _____________________
                                                       Jeffrey S. Boyd
                                                       Justice

Opinion delivered: May 11, 2018




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