
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-239 CV

____________________


PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, Appellant


V.


KLEIN & ASSOCIATES POLITICAL RELATIONS, A DIVISION OF

KLEIN INVESTMENTS, KLEIN INVESTMENTS, AND PHILLIP R. KLEIN, 

Appellees





On Appeal from the 172nd District Court
Jefferson County, Texas

Trial Cause No. E-163290-A




OPINION
	The question presented is whether a governmental unit may sue for defamation. 
The answer is no.  
The Case

	The SouthEast Texas Political Review, a website owned by Klein & Associates,
published a story by Philip Klein.  In the Review, Klein stated that a "huge fight" had
occurred at a prom sponsored by Thomas Jefferson High School, a school within the Port
Arthur Independent School District ("PAISD").  The school district sued Philip R. Klein
and Klein and Associates Political Relations, a Division of Klein Investments, Inc.,
(collectively the "Klein defendants") (1) for defamation. 
	Initially, the trial court granted summary judgment for the Klein defendants on five
grounds, one of which was that PAISD's claims were prohibited by the First Amendment. 
PAISD filed a motion for new trial.  The trial court granted the motion for new trial and 
issued an amended order granting summary judgment for the Klein defendants solely on
the First Amendment issue and denying all other grounds.  On appeal, PAISD asks this
court to reverse the summary judgment, remand the case for trial, and order the Klein
defendants to reveal their sources of information quoted in the article.  
Standard of Review 	The issue of whether a governmental unit may sue for defamation is a question of
law; appellate courts review questions of law de novo.  See generally New York Times Co.
v. Sullivan, 376 U.S. 254, 291, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see also El Paso
Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999) (questions of
law reviewed de novo).   
Analysis

	The law at issue here is settled.  This is not a suit brought by a public official;
rather it is a suit filed by a unit of the State.  See Tex. Civ. Prac. & Rem. Code Ann. §
101.001(3)(B) (Vernon Supp. 2002); Tex. Elec. Code Ann. § 1.005(13) (Vernon Supp.
2002); Tex. Lab. Code Ann. § 504.001 (3) (Vernon 1996).  In distinguishing a suit
brought by a governmental unit from a suit filed by a government official, the United
States Supreme Court has stated as follows: "For good reason, 'no court of last resort in
this country has ever held, or even suggested, that prosecutions for libel on government
have any place in the American system of jurisprudence.'"  Sullivan, 376 U.S. at 291, 845
S.Ct. at 732, 11 L.Ed.2d at 713 (quoting City of Chicago v. Tribune Co., 139 N.E. 86,
88 (Ill. 1923)).  In commenting on Sullivan in a later case, the Supreme Court viewed with
disapproval "the spectre of prosecutions for libel on government, which the Constitution
does not tolerate in any form." Rosenblatt v. Baer, 383 U.S. 75, 81, 86 S.Ct. 669, 673,
15 L.Ed.2d 597, 603 (1966).  In Rosenblatt, the Court held that a claim that a newspaper
column cast indiscriminate suspicion on the members of a government-employed
management group was "tantamount to a demand for recovery based on libel of
government, and therefore [was] constitutionally insufficient." Id. at 83, 86 S.Ct. at 674,
15 L.Ed.2d at 604.  The few other courts which have considered whether government can
sue for libel have concluded that a governmental entity cannot maintain such an action. (2)
	Appellant contends the language in Sullivan was dicta and therefore not binding
legal precedent.  We disagree.  The nation's highest court quoted with unmistakable
approval the applicable constitutional principle as an integral part of its analysis of the
second issue before the Court -- the constitutional insufficiency of the evidence.  The Court
described its two holdings as follows:
	We hold that the rule of law applied by the Alabama courts is constitutionally
deficient for failure to provide the safeguards for freedom of speech and of
the press that are required by the First and Fourteenth Amendments in a libel
action brought by a public official against critics of his official conduct.  We
further hold that under the proper safeguards the evidence presented in this
case is constitutionally insufficient to support the judgment for respondent. 
 

Sullivan, 376 U.S. at 264-65, 84 S.Ct. at 717-718, 11 L.Ed.2d at 697 (footnote omitted). 
In Sullivan, the bedrock principle on which the analysis of the second issue is constructed
is that libel suits by the government against its citizens are disallowed.  Id. at 291, 84 S.Ct.
at 732, 11 L.Ed.2d at 713.  Based on that foundational rule of law, the Supreme Court
held that a public official, who filed suit against a newspaper for criticism of his official
conduct, could not transform what was solely criticism of the government itself into
personal criticism of his official conduct.  Id. at 291-92, 84 S.Ct. at 732-733, 11 L.Ed.2d
at 713-714.  The Court stated, "We hold that such a proposition may not constitutionally
be utilized to establish that an otherwise impersonal attack on governmental operations was
a libel of an official responsible for those operations."  Id. at 292, 84 S.Ct. at 732, 11
L.Ed.2d at 713.  A government official may sue for libel; as the Supreme Court held in
Sullivan and Rosenblatt, a public official may recover damages for a "defamatory
falsehood" made with actual malice, if the attack is specifically directed at the official.  See
Sullivan, 376 U.S. at 279, 84 S.Ct. at 726, 11 L.Ed.2d at 706; see also Rosenblatt, 383
U.S. at 81, 86 S.Ct. at 673, 15 L.Ed.2d at 603.  But here, there is no public official
plaintiff; and the government itself cannot sue for libel.    
	This court agrees that prosecutions for libel on government have no place in the
jurisprudence of the United States of America.  If the government is permitted to use
public resources to bring defamation claims against its critics, criticism of government will
be silenced through, at the very least, fear of monetary loss.  PAISD's argument, taken
to its logical conclusion, "strikes at the very center of the constitutionally protected area
of free expression." See Sullivan, 376 U.S. at 292, 845 S.Ct. at 732, 11 L.Ed.2d at 713. 

 PAISD presents a number of arguments in support of its contention that a school
district should be able to sue for defamation.  The district "believe[s]" Klein made "false
and defamatory" statements and maintains the statements have adversely affected its
reputation.  PAISD argues reputation is important to a school district because of the
increasing competition among public, private, charter, and home schools for students.  The
district also maintains that since Klein does not reside within the district's boundaries, or
"geographical jurisdiction," he somehow lacks (or an exception should be made to that
effect) the right to criticize or comment on matters concerning the district.  PAISD also
directs us to recent cases that it contends have "permitted lawsuits by school districts to
proceed when the school districts sued private citizens for making false statements about
the districts."  See Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 238 (Tex. App.--Dallas 2000, pet. denied), cert. denied, ___U.S.___, 122 S.Ct. 342, 151 L.Ed.2d 258
(2001); Linzy v. Cedar Hill Indep. Sch. Dist., No. CIV.A.3:00CV1864-AH, 2001 WL
912649 (N.D. Tex. Aug. 8, 2001).  
	We reject these arguments.  Neither of the two cases that PAISD cites holds that the
government may sue for defamation.  We also reject PAISD's suggestion that an individual
relinquishes First Amendment protections simply because the individual lives outside the
boundaries or "geographical jurisdiction" of the governmental unit being criticized.  And
the importance of maintaining a government's good reputation does not justify permitting
the government to attack its critics by defamation suits.  No basis exists for a contrary
ruling on this settled issue; the government may not silence its critics by defamation suits. 
The trial court properly granted summary judgment on First Amendment grounds.
	PAISD's first point of error has no merit and is overruled.  PAISD's second point
of error, demanding access to Klein's sources, is contingent on our sustaining the first
point of error; the second point of error is overruled as moot as a result of this court's
agreement with the summary judgment.  
	Appellees ask that the appeal be labeled frivolous and that "just damages" be
assessed against the school district pursuant to Tex. R. App. P. 45.  Although we are
troubled by the monetary cost of defending against this appeal, and although we find the
language in Sullivan controlling, we nevertheless believe this specific appeal was a "good-faith challenge to the trial court's judgment."  See In re Long, 946 S.W.2d 97, 99 (Tex.
App.--Texarkana 1997, no writ).  Appellees' request is denied.
	The judgment of the trial court is AFFIRMED.
							_________________________________
								   DAVID B. GAULTNEY
									      Justice
Opinion Submitted December 13, 2001
Opinion Delivered February 14, 2002
Publish

Before Walker, C.J., Burgess and Gaultney, J.J.
CONCURRING OPINION

	In this specific case, I concur in the result only.  I write to note that the majority
may have painted with too broad a brush when they pose the question "whether a
governmental unit may sue for defamation" and answer unequivocally "no". 
	I believe there may be a circumstance where the alleged defamation of a
governmental unit may be actionable, particularly where the governmental unit is solely
performing a proprietary function.  Consequently, I would restrict this holding to these
specific parties and facts. (3)





                                                                                    DON BURGESS

                                                                                          Justice                       

Concurrence Delivered
February 14, 2002
Publish        
CONCURRING OPINION
	I strongly agree in holding that the First Amendment bars defamation suits by
government entities.  "This action is out of tune with the American spirit, and has no place
in American jurisprudence."  City of Chicago v. Tribune Co., 139 N.E. 86, 91 (Ill. 1923). 
However, I write separately contending that this appeal is frivolous and sanctions should
be leveled. 
	Texas Rule of Appellate Procedure 45 authorizes us, after giving notice and
opportunity for response, to award "just damages" for the filing of a frivolous appeal. 
Tex. R. App. P. 45.  I cannot find and do not believe that there is here a "good faith
challenge" to existing law.  Furthermore, two of our sister courts have held that Tex. R.
App. P. 45, unlike its predecessor Tex. R. App. P. 84, does not require proof of subjective
bad faith on the part of an appellant; instead, an appeal can be  frivolous because it is filed
with no reasonable hope of reversal.  Mid-Continent Cas. Co. v. Safe Tire Disposal Corp.,
2 S.W.3d 393, 397 (Tex. App.--San Antonio 1999, no pet.)("Under the current rule, 'just
damages' are permitted if an appeal is objectively frivolous and injures the appellee. . . . 
Bad faith is thus no longer dispositive or necessarily even material."); Smith v. Brown, 51
S.W.3d 376, 381 (Tex. App.--Houston [1st Dist.] 2001, pet. denied)("We hold that bad
faith is not required under Rule 45 and disavow language to the contrary . . .") (4)  Other
courts have implicitly agreed by holding that sanctions are justified if an appeal was filed
without reasonable hope of reversal or in bad faith.  Njuku v. Middleton, 20 S.W.3d 176,
178 (Tex. App.--Dallas 2000, pet. denied); Diana Rivera & Assocs. v. Calvillo, 986
S.W.2d 795, 799 (Tex. App.--Corpus Christi 1999, pet. denied).
	Appellants' counsel did a skillful job of defending an indefensible position.
However, as the majority states, "No basis exists for a contrary ruling on this settled
issue[.]"  Under Rule 45, as under Rule 84, I look at an allegedly frivolous appeal through
the eyes of an advocate and discern whether the appellant had reasonable grounds to
believe that the case would be reversed.  Smith, 51 S.W.3d 381; Jim Arnold Corp. v.
Bishop, 928 S.W.2d 761, 772 (Tex. App.--Beaumont 1996, no pet.).  By this standard,
this appeal is objectively frivolous; no reasonable attorney could fail to conclude this court
would uphold the trial court's summary judgment.  And it has unquestionably harmed the
appellees to the degree that they have incurred legal fees to defend against it.  All spurious
appeals are offensive; this one is worse than most because of the chilling effect that the
threat of such litigation has upon the exercise of First Amendment rights.  I would give
notice to appellants to show cause why they should not be subject to a sanction at least
equal to appellee's attorney's fees on appeal.  See Mid-Continent, 2 S.W.3d 397; Calvillo,
986 S.W.2d 799.  Since I stand alone, I shall go hence without day.


							_______________________________
								RONALD L. WALKER
									Chief Justice

Concurrence Delivered
February 14, 2002
Publish 
1. PAISD did not sue Southeast Texas Political Review as a separate entity, but the
summary judgment and appellate briefs name the website separately.  We make no
distinction in this opinion between the website and the Klein defendants.
2. See, e.g., Edgartown Police Patrolmen's Ass'n v. Johnson, 522 F.Supp. 1149 (D.
Mass. 1981); City of Philadelphia v. Washington Post Co., 482 F.Supp. 897 (E.D. Pa.
1979); City of Chicago v. Tribune Co., 139 N.E. 86 (Ill. 1923).  See also J. A. Bryant,
Jr., Annotation, Right of Governmental Entity to Maintain Action for Defamation, 45
A.L.R.3d 1315 (1972). 
3. E.g. "Our consideration is limited to the present circumstances, for the problem of
equal protection in election processes generally presents many complexities".  Bush v. 
Gore, 531 U.S. 98, 109, 121 S.Ct. 525,148 L.Ed.2d 388 (2000).
4.   Smith is noteworthy because it is an en banc decision which explicitly disavows
"bad  faith" language  in  several  of  the 1st Court's recent panel opinions.  Id. at 381;
note following sentence affirming the trial court's judgment.  Id. at 382. 
