                             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.




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         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

        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. . . .” T EX .
C ON ST . art. 1, § 8 (em phasis 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 rem edy by due course of law.”
T EX . C ON ST . art. 1, § 13 (em phasis added).

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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).




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       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



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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



                                              6
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

                                             7
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


       2
        See also Nguyen v. Dallas Morning News, L.P., no. 2-06-298-CV, 2008 W L 2511183, at *4 (Tex.
App.–Fort W orth June 19, 2008, no pet.) (m em . op.).

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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



                                               9
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




        3
          I disagree with the m ajority’s determ ination that Freedom waived its argum ent that it had established
that the advertisem ents contained no details about appellees’ personal lives. Freedom urged in its brief that
the inform ation about the appellees was obtained from an official governm ent report. Freedom also argued
that the docum ent was an official record in its analysis of the fair report privilege. And, it is undisputed that
there were no details contained in the advertisem ent regarding the appellees, other than the fact that each
had been accused of crim es involving children.

        4
          I express neither agreem ent nor disagreem ent with the m ajority’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
sum m ary judgm ent as a m atter of law on the truth defense. See T EX . R. A PP . P. 47.1.

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      For these reasons, I respectfully dissent.




                                                   ROSE VELA
                                                   Justice




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




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