


 
 




NUMBER 13-08-628-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
 
FREEDOM COMMUNICATIONS, INC. D/B/A			 Appellant,
THE BROWNSVILLE HERALD AND THE VALLEY
MORNING STAR,				   

v. 

JUAN ANTONIO CORONADO, ET AL,				  	Appellees.
 

On appeal from the 357th District Court 
of Cameron County, Texas.

 

DISSENTING OPINION


Before Chief Justice Valdez and Justices Garza and Vela

Dissenting Opinion by Justice Vela

	I dissent from the majority's opinion because I believe that Freedom established its
right to summary judgment as a matter of law.  First, I would hold that Freedom
conclusively established that the statements made in the advertisements concerning the
appellees were substantially true.  Second,  I believe that Freedom established as a matter
of law that appellees may not recover on their invasion of privacy cause of action.   
	This libel action arose from the publication of political advertisements created by an
advertising agency for a candidate hoping to unseat the incumbent district attorney of
Cameron County, Texas.  The advertisements and their later variations were published by
Freedom Communications, Inc. ("Freedom") in two of its newspapers with circulation in the
Rio Grande Valley.  The scenario is somewhat unique because the defamation action was
brought, not by the district attorney who was the focus of the political advertisements, but
by four individual defendants named in some of the advertisements, who had each been
accused of either physical or sexual abuse against children.  The appellees were among
more than one hundred individuals mentioned in the advertisements who had all been
accused of crimes involving children.    
	 In analyzing political advertisements, it is well settled that the core values of the
First Amendment reflect a recognition of the "importance of the free flow of ideas and
opinions or matters of public interest and concern."  Carr v. Brasher, 776 S.W.2d 567, 570
(Tex. 1989) (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988)).  The right to
freedom of the press is in the First Amendment because this liberty is essential to the
nature of a free society.  Forbidding this liberty would place a chilling effect on political
speech and would destroy the foundation of our free society.




	Our state constitution expressly authorizes the bringing of reputational torts.  See
Tex. Const. art. I, §§ 8, 13. (1)  With respect to the granting of summary judgment in cases
involving reputational torts, the supreme court noted in Casso v. Brand, "'that summary
judgment practice is particularly well-suited for the determination of libel actions, the fear
of which can inhibit comment on matters of public concern.'"  776 S.W.2d 551, 558 (Tex.
1989) (quoting Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 157 (1986)).  The
United States Supreme Court, in recognition of the special public interest in elected
officials, stated that "the constitutional guarantee [of a free press] has its fullest and most
urgent application precisely to the conduct of campaigns for political office."  Monitor Patriot
Co. v. Roy, 401 U.S. 265, 272 (1971).  
	Preservation of free expression is urgent in the political arena because an important
purpose of the First Amendment is to ensure vigorous discussion of governmental issues. 
See Buckley v. Valeo, 424 U.S. 1, 14 (1976).  It follows then that these protections should
apply particularly in the arena of a paid political advertisement.  In New York Times v.
Sullivan, which concerned libel asserted by a public figure, one of the questions addressed
was whether a constitutionally protected advertisement forfeited some of the First
Amendment protection by the falsity of some of the factual statements in the advertisement
and its alleged defamation of the police commissioner.  376 U.S. 254, 271 (1964).  The
United States Supreme Court determined that the advertisement was protected.  Notably,
in Sullivan, the advertisement was checked by no one at the newspaper before it was
published; the advertising manager relied upon the reputation of the sponsors of the
advertisement.  Id. at 277-78.  The advertisements in question here, like the ad in Sullivan,
were not generated by the newspaper itself.  However, unlike the advertisements in
Sullivan, the advertisements here were reviewed by Freedom staff for accuracy.  While the
primary purpose of the advertisements in this case was for candidate Zavaletta to publicly
express his personal opinions regarding the incumbent district attorney, the advertisements
also named the private individuals who filed this lawsuit.  I would analyze the issues by
balancing the importance of public debate with the requirement that the advertisements be
truthful.         	
 I. Defamation Claim
	Freedom moved for summary judgment on the basis that appellees' libel claims
were not actionable because no defamatory statement was made concerning them. 
Freedom urged that the statements made in the advertisement concerning appellees were
substantially true.  I believe Freedom met its summary judgment burden in this regard. 
Because the appellees are private individuals, they must prove that Freedom:  (1)
published a statement; (2) that was defamatory about the plaintiff; and (3) while acting with
negligence with regard to the truth of the statement.  WFAA-TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998).  Freedom, as the  defendant moving for summary judgment,
must either conclusively negate at least one of the essential elements of a cause of action
or conclusively establish each element of an affirmative defense.  See Randall's Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

	A statement is not defamatory if it is true or substantially true.  McIlvain v. Jacobs,
794 S.W.2d 14, 15 (Tex. 1990).  An analysis of whether a publication is substantially true
turns on whether the statement is more damaging to the plaintiff's reputation than a truthful
statement would have been.  Id. at 16.  An evaluation involves looking at the "gist" of the
advertisement.  Id.  An allegedly defamatory publication should be construed as a whole
in light of the surrounding circumstances based on how a person of ordinary intelligence
would perceive it.  Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000).  The
clear "gist" of the advertisements here allowed candidate Zavaletta to express his personal
opinion that the incumbent district attorney was not doing his job.  But, the statements
made in the advertisements with regard to the appellees were not expressions of 
Zavaletta' s opinion.  They were statements of fact gathered from an official document. 
With respect to the appellees, the advertisements were true.  They stated that appellees
were accused of crimes concerning children.  They were.  The advertisements also stated
that appellees' cases were declined at intake.  They were. 
	Appellees' argued that the statements naming them were not complete because the
advertisements did not state that appellees' cases were declined at intake because of
either insufficient evidence in three of their cases or, with respect to the fourth appellee,
there was some  evidence of inappropriate activity, which the district attorney's office found
insufficient to prove beyond a reasonable doubt.  The inclusion of these facts may have
resulted in a more complete political advertisement with respect to appellees' status, but
the gist of the advertisement had much more to do with the perceived conduct of the
incumbent district attorney rather than the one hundred individuals listed in the
advertisement.  See Green v. CBS, Inc., 286 F. 3d 281, 285 (5th Cir. 2002).  
	The majority suggests that one could reasonably infer from the advertisements that
appellees committed crimes against children.  Perhaps it is true that such an inference
could be made.  But, in our society such an inference should not be made as an accused
is innocent until proven guilty.  And, the actual statements made about the appellees in the
advertisements were truthful.  The advertisements did not say that appellees committed
crimes against children.  I do not believe that the possibility that a negative inference could
be gleaned from otherwise truthful statements about these specific appellees destroys
either its substantial truth or the protection afforded Freedom by the First Amendment. 
This Court has previously said that a  negative inference will not support appellees'
defamation claim.  Larson v. Family Violence and Sexual Assault Prevention Ctr., 64
S.W.3d 506, 515 (Tex. App.-Corpus Christi 2001, pet. denied).  In Larson, the appellant
contended that the appellee had suggested to the media that appellant was the cause for
the media to report inferences that she was the sole reason for agency financial shortfalls.
Id.  This Court recognized that liability will not lie "for presenting a true account of events,
regardless of what someone may infer from the account."  Id.
	Clearly, the political advertisements at issue here were not even specifically directed
towards appellees as required by the case law for liability to attach.  Cox Tex. Newspapers,
L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.-Austin 2007, pet. denied) (citing
Rosenblatt v. Baer, 383 U.S. 75, 81 (1966)).  In other words, "[i]n order to entitle one to
maintain an action for an alleged defamatory statement, it must appear he is the person
with reference to whom the statement was made."  Newspapers, Inc. v. Matthews, 161
Tex. 284, 339 S.W.2d 890, 893 (1960).  The circumstances surrounding the political
advertisements show that they are directed at the incumbent district attorney.  Specifically,
the advertisements refer to his past performance relating to the prosecution of crimes
against children.  The advertisements almost exclusively regarded the incumbent district
attorney, and only mentioned appellees and many others to the extent that they were
accused.  The advertisements did not mention that appellees were either charged with or
should have been charged with any crimes, and the advertisements did not say that
appellees had any culpability in such crimes. 
	Freedom also moved for summary judgment on the basis that those portions of the
political advertisements that did not reference appellees constituted statements of opinion
rather than statements of objectively verifiable facts.  Statements of opinion are not
actionable under Texas law.  Carr, 776 S.W.2d at 570.  Whether a statement is an opinion
or an actionable assertion of fact is a question of law for the court.  Id.  A statement is not
actionable under the First Amendment in a case against a media defendant unless it is
provable as false.  Milkovich v. Lorain Journal Co., 497 U.S., 19-20 (1990).  And, a
statement of "pure opinion" is not provable as false.  Yiamouyiannis v. Thompson, 764
S.W.2d 338, 341 (Tex. App.-San Antonio 1988, writ denied) (stating that "pure opinion"
is "not capable of proof one way or the other").  The political advertisements in this case
are not news stories; rather, they are one political candidate's opinion about an important
local political figure.  The advertisements presented candidate Zavaletta's opinion that the
incumbent district attorney was not doing his job with respect to the prosecution of crimes
against children.  Because the summary judgment evidence established that the
advertisements are either true with respect to the appellees or substantially true assertions
of fact or opinions of Zavaletta, I would conclude summary judgment is  proper on this
basis.  I would hold that the trial court erred by denying summary judgment on appellees's
defamation claim.
II. Invasion of Privacy
	Freedom moved for summary judgment on the basis that the political
advertisements did not amount to an actionable public disclosure of private facts as a
matter of law because the facts published:  (1) do not concern any private facts concerning
appellees; (2) are a substantially accurate description of public documents; (3) are
newsworthy and of legitimate public concern; and (4) were not highly objectionable to a
person of ordinary sensibilities.  In Texas, an invasion-of-privacy claim has three elements: 
(1) publicity was given to matters concerning the plaintiff's private life; (2) publication of
such facts would be highly offensive to a reasonable person of ordinary sensibilities; and
(3) matters publicized are not of legitimate public concern.  Hogan v. Hearst Corp., 945
S.W.2d 246, 250 (Tex. App.-San Antonio 1997, no writ).  Under Texas law pertaining to
the tort of invasion of privacy for the public disclosure of embarrassing private facts, one's
privacy is not invaded if the matter publicized is of legitimate public concern.  Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 472, 474-75 (Tex. 1995); Indus. Found. of the
South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976).  We decide "as a
matter of law whether a . . . matter is of legitimate public concern."  Lowe v. Hearst
Commc'ns, Inc., 487 F.3d 246, 250 (5th Cir. 2007) (citing Cinel v. Connick, 15 F.3d 1338,
1345-46 (5th Cir. 1994)). (2)  We construe this "newsworthiness" test broadly and may include
news in the sense of current events, commentary on public affairs, and other information
"'embrac[ing] all issues about which information is needed or appropriate so that individuals
may cope with the exigencies of their period.'"  Id. at 250 (quoting Campbell v. Seabury
Press, 614 F.2d 395, 397 (5th Cir. 1980)).
	Although "there is a presumption under Texas law that the public has no legitimate
interest in private embarrassing facts" with respect to private persons, whether any matter
falls within the purview of legitimate public concern depends upon the "factual context of
each particular case, . . . the nature of the information[,] and the public's legitimate interest
in its disclosure."  Doe, 915 S.W.2d at 474.  In balancing a person's right to privacy in
regard to information of legitimate public concern, the Texas Supreme Court has stated
that:  "[I]t would be impossible to require [the media] to anticipate and take action to avoid
every conceivable circumstance where a party might be subjected to the stress of some
unpleasant or undesired notoriety without an unacceptable chilling effect on the media
itself."  Id.
	Freedom printed political advertisements which mentioned persons accused of
offenses against children and the challenger's opinion regarding the incumbent district
attorney's handling of these types of cases.  Criminal allegations related to misconduct
against children are of legitimate public concern, so publication of these allegations against
appellees does not violate their right to privacy.  See Lowe, 487 F.3d at 250-52 (stating
"there is legitimate public interest in facts tending to support an allegation of criminal
activity, even if the prosecutor does not intend to pursue a conviction"); Doe, 915 S.W.2d
at 472, 474-75 (affirming summary judgment for newspaper in invasion-of-privacy case
when article disclosed facts that were of legitimate public concern).  Protection of children
from abuse is of the utmost importance in Texas.  See In re A.V., 113 S.W.3d 355, 361
(Tex. 2003) (recognizing the State's duty to protect the safety and welfare of children);
Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 291-92 (Tex. 1996) (recognizing
the legislature's strong policy and public's interest in protecting children from abuse);
Villarreal v. Harte-Hanks Commc'ns, Inc., 787 S.W.2d 131, 134 (Tex. App.-Corpus Christi
1990, writ denied) (noting that "child abuse is recognized as a burning issue").  Therefore,
the fact that appellees were accused of committing crimes against children is of legitimate
public concern and disclosing this information in the political advertisements did not violate
their First Amendment right to privacy.  I would hold that the trial court erred in denying
Freedom's summary judgment motion on the ground that appellees had no claim for
invasion of privacy as a matter of law. (3)
	I would reverse the trial court's judgment and render judgment that appellees take
nothing by their suit against Freedom. (4)



	For these reasons, I respectfully dissent.
 

  
 
 								ROSE VELA
								Justice


Dissenting Opinion delivered and 
filed this 13th day of August, 2009.








1. Article 1, section 8 of the Texas Constitution provides that "[e]very person shall be at liberty to speak,
write, or publish his opinions on any subject, being responsible for the abuse of that privilege. . . ."  Tex.
Const. art. 1, § 8 (emphasis added).  Section 13 provides that "[a]ll courts shall be open, and every person
for an injury done him, in his lands, goods, person, or reputation shall have remedy by due course of law." 
Tex. Const. art. 1, § 13 (emphasis added).
2. See also Nguyen v. Dallas Morning News, L.P., no. 2-06-298-CV, 2008 WL 2511183, at *4 (Tex.
App.-Fort Worth June 19, 2008, no pet.) (mem. op.).
3. I disagree with the majority's determination that Freedom waived its argument that it had established
that the advertisements contained no details about appellees' personal lives.  Freedom urged in its brief that
the information about the appellees was obtained from an official government report.  Freedom also argued
that the document was an official record in its analysis of the fair report privilege.  And, it is undisputed that
there were no details contained in the advertisement regarding the appellees, other than the fact that each
had been accused of crimes involving children.
4.  I express neither agreement nor disagreement with the majority's analysis of the fair report privilege. 
I do not think it is necessary to the final disposition of this appeal because Freedom established its right to
summary judgment as a matter of law on the truth defense. See Tex. R. App. P. 47.1.
