Freedom Communications, Inc., David Jay Lee, and Midessa Television v. Jose Spencer Sotelo

Opinion filed June 15, 2006 Opinion filed June 15, 2006 In The Eleventh Court of Appeals ____________ No. 11-05-00336-CV __________ FREEDOM COMMUNICATIONS, INC. D/B/A ODESSA AMERICAN, DAVID JAY LEE, AND MIDESSA TELEVISION D/B/A KWES-TV 9, Appellants V. JOSE SPENCER SOTELO, Appellee On Appeal from the 70th District Court Ector County, Texas Trial Court Cause No. A-119,370 M E M O R A N D U M   O P I N I O N This is an interlocutory appeal from the denial of motions for summary judgment. Jose Spencer Sotelo sued Freedom Communications, Inc. d/b/a Odessa American, David Jay Lee, and Midessa Television d/b/a KWES-TV 9 (the media defendants) for libel. The media defendants moved for summary judgment, among other things, on the basis of the fair report privilege under the First and Fourteenth Amendments of the United States Constitution, the Texas Constitution, and statutory privileges under the Texas Civil Practice and Remedies Code. The trial court denied the summary judgment motions, and the media defendants bring this accelerated appeal. Because we hold the media defendants in this case have privilege, we reverse and render judgment in favor of the media defendants. This interlocutory appeal arises out of a newspaper article and news broadcasts which incorrectly labeled Sotelo as a sex offender. Both the newspaper article and news broadcasts were based on a news release issued by the Odessa Police Department (OPD). On April 29, 2005, OPD made available to journalists a news release that detailed a sex offender compliance inspection that OPD had conducted the day before. The purpose of the sex offender compliance inspection, as explained in the news release, was to determine whether sex offenders in the City of Odessa and Ector County had complied with their obligation to register with local authorities. The news release included the names of two individuals who were arrested as part of the compliance inspection. Sotelo was listed as one of the two individuals. Printed next to Sotelo=s name were references to two warrants for his arrest, although there were no warrants against him for sex offenses. The warrants against Sotelo were for (1) Theft-Class A and (2) False ID to Peace Officer-Class B. The news release, entitled ASex Offender Compliance Inspection,@ provided: On April 28, 2005, members of the ARegistration, Enforcement and Apprehension Program@ (R.E.A.P.), began a compliance inspection of registered sex offender[s] in Odessa and Ector County. During the evening hours of the 28th, forty-five personnel from numerous law enforcement agencies conducted compliance inspections at the residences and places of employment of registered sex offenders. These compliance inspections are conducted to maintain accurate records of residential, employment, and vehicle information of offenders within our community. On April 28, 2005, 155 sex offenders were contacted and inspections were conducted on information they are required to submit to their local law enforcement agency as required by their sentences. Two (2) are in custody at either the Ector County Law Enforcement Center or Ector County Youth Center. There are 23 who have not been contacted. Of these twenty-three (23) there are three (3) active investigations that have been initiated to determine if the subjects have absconded. (A number of these offenders are employed during nighttime hours at oilfield leases, drilling rigs, etc.) Arrested: Joel Jackson, B/M, DOB-12-10-68 Fail to Comply as Sex Offender Felony 3, Assault-Class C Family Violence Jose Spencer Sotelo, H/M, DOB 9-2-66 Warrants: Theft-Class A, False ID to Peace Officer-Class B NOTICE: If you are a registered sex offender and law enforcement personnel did not contact you during the evening of April 28, 2005, it is imperative that you contact your registering agency by 1500 hours on April 29, 2005 (emphasis added). In both the newspaper article and news broadcasts, Sotelo=s picture was shown in conjunction with the sex-offender-compliance-inspection story. The article, published on April 30, 2005, in the Odessa American, reported all the information provided by the OPD news release.[1] The title of the article printed in large bold letters was AOfficers work to keep tabs on sex offenders.@ Mug shot photographs of Sotelo and another man were printed under the main title. Under each of the two photographs was the title ASEX OFFENDER.@ The photographs were provided by Gary Duelser of the Ector County Sheriff=s Department to the Odessa American via e-mail to David Jay Lee. In the e-mail, Duesler stated: A[A]ttached are two mug shots to match Odessa Police Dept=s press release re: Sex [O]ffenders Compliance.@ The news broadcasts aired on KWES nightly news on April 29, 2005, at 10:00 p.m. and on April 30, 2005, at 6:00 p.m. The two broadcasts were identical to each other and reported the information in the news release. The Odessa Chief of Police sent the news release by facsimile to KWES Producer Enza Locascio. Jay Hendricks, the news director, approved the story. The video portion of the broadcasts featured Sotelo=s and another man=s mug shot photographs during the following oral commentary: Odessa police along with several law enforcement agencies took part in a sex offender compliance inspection. These two men . . . Joel Jackson and Jose Sotelo . . . arrested during that inspection. These are done to keep accurate records about offenders who live in our community. Jackson was arrested for failing to comply as a sex offender. Sotelo . . . for other outstanding warrants. After the news broadcasts were aired and the newspaper article was published, Sotelo brought a libel suit against the media defendants.[2] All of the media defendants below filed motions for summary judgment that the trial court denied in two separate orders. Pursuant to Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(6) (Vernon Supp. 2005), the media defendants bring this accelerated, interlocutory appeal from the denial of their motions for summary judgment. The denial of a summary judgment may be appealed when a court: [D]enies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73 [Tex. Civ. Prac. & Rem. Code Ann. ch. 73 (Vernon 2005)]. Section 51.014(a)(6). We apply the same standard of review for the denial of a summary judgment as for the granting of a summary judgment. Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.CHouston [14th Dist.] 1994, writ denied). In a traditional summary judgment motion brought under Tex. R. Civ. P. 166a(c), the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail as a defendant, the movant must either negate at least one element or prevail on a defense for each of the plaintiff=s causes of action. Am. Tobacco Co. v. Grinnel, 951 S.W.2d 420, 425 (Tex. 1997). To meet this burden, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). We review the trial court=s summary judgment de novo. Provident Life, 128 S.W.3d at 215. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant=s favor. Id. A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged element. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). On appeal, the media defendants assert that the trial court erred in denying the motion for summary judgment because, as a matter of law, the statements (1) were not false; (2) were not defamatory; (3) were not made with malice, or in the alternative, were not negligently published; (4) were substantially accurate and were protected by the fair report privilege under the First Amendment; (5) were protected by the statutory privileges set forth in Section 73.002(b) of the Texas Civil Practice and Remedies Code; and (6) were protected by the incremental harm doctrine. Where the facts are undisputed and the language used in the publication is not ambiguous, the question of privilege is ordinarily one of law for the court. Denton Publ'g Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970); Christy v. Stauffer Publ=ns, Inc., 437 S.W.2d 814 (Tex. 1969). Section 611 of the Restatement (Second) of Torts provides that A[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.@ Restatement (Second) of Torts § 611 (1977). The privilege Aextends to the report of . . . any action taken by any officer or agency of the government of the United States, or of any State or of any of its subdivisions.@ Restatement (Second) of Torts § 611 cmt. d (1977). A[T]he privilege exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false.@ Restatement (Second) of Torts § 611 cmt. a (1977). AThe reporter is not privileged under this Section to make additions of his own that would convey a defamatory impression.@ Restatement (Second) of Torts § 611 cmt. f (1977). Thus, the publications should be compared, not with actual fact, but with the governmental reports that defendants republished. Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406, 417 (E.D. Pa. 1978). After comparing the newspaper article and the broadcasts to the news release issued by OPD, we find that both the newspaper article and the broadcasts were accurate and complete reports, or a fair abridgement, of the news release issued by OPD. We note that the policy given by the U.S. Supreme Court in Cox Broadcasting is instructive under these facts although that case dealt with an invasion of privacy claim when a rape victim=s name was obtained from an indictment and was subsequently televised during a broadcast. Publishing a rape victim=s name was prohibited by a Georgia statute. Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975). The Court stated: [I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Cox Broad., 420 U.S. at 492. Other courts have recognized the important protection afforded by the fair report privilege because the privilege allows news media to report on the actions and statements of public officials. See Wright v. Grove Sun Newspaper Co., 873 P.2d 983, 986-87 (Okla. 1994) (stating Athe damage by reputational harm which goes unredressed because of the fair report privilege defense must be subordinated to the larger societal interests in the values which the privilege protects@); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993). Press releases issued by law enforcement or governmental agencies have triggered the application of the fair report privilege. See, e.g., Alsop v. Cincinnati Post, 24 Fed. Appx. 296, 297-98 (6th Cir. 2001); Stewart v. Sun Sentinel Co., 695 So.2d 360, 362 (Fla. Dist. Ct. App. 1997); Steer v. Lexleon, Inc., 472 A.2d 1021, 1024 (Md. Ct. Special App. 1984); see also Yohe v. Nugent, 321 F.3d 35, 42-44 (1st Cir. 2003); Mathis, 455 F. Supp. at 415-18. Without this rule, the news media would be forced to check the accuracy of all information and statements released by governmental officials and agencies. See Reuber v. Food Chem. News, Inc., 925 F.2d 703, 712 (4th Cir. 1991). Moreover, we also hold that the newspaper article and the broadcasts fall under the privilege afforded by Section 73.002(a), (b)(1)(B), and (b)(2) of the Texas Civil Practice and Remedies Code which provide: (a) The publication by a newspaper or other periodical of a matter covered by this section is privileged and is not a ground for a libel action. This privilege does not extend to the republication of a matter if it is proved that the matter was republished with actual malice after it had ceased to be of public concern. (b) This section applies to: (1) a fair, true, and impartial account of: . . . . (B) an official proceeding, other than a judicial proceeding, to administer the law; . . . . (2) reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information. This statutes provides that certain matters published in a newspaper are privileged and not actionable as libel. In Denton Publishing, the newspaper article in question: [W]ould be within the privilege provided by statute as long as it purported to be, and was, only a fair, true and impartial report of what was stated at the meeting, regardless of whether the facts under discussion at such meeting were in fact true, unless the report was made with malice. 460 S.W.2d at 883 (under predecessor statute to Section 73.002) (citing, inter alia, Section 611). Likewise, the First Court of Appeals had to determine whether an article containing allegations and testimony from a trial court record fell under Section 73.002(a) and (b)(1)(A), allowing a conditional privilege for fair, true, and impartial account of a judicial proceeding. Texas Monthly, Inc. v. Transamerican Nat. Gas Corp., 7 S.W.3d 801, 805 (Tex. App._Houston [1st Dist.] 1999, no pet.). The article is indeed a Afair, true, and impartial@ account Ain reference to the court record. . . . If the effect on the reader=s mind would be the same, any difference between the statements made in the record and the media account of the proceeding should be disregarded.@ Id. at 807 (emphasis added) (citing Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 515 (Tex. App._Tyler 1987, writ dism=d w.o.j.)). Likewise, under Section 73.002(b)(2), the proper comparison should be between a news report or broadcast and an otherwise unprivileged record of the state or federal government. The qualified privilege is lost when the communication is made with malice. Randall=s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). To invoke the privilege on summary judgment, the defendant Amust conclusively establish that the allegedly defamatory statement was made with an absence of malice.@ Id.; Martin v. Sw. Elec. Power Co., 860 S.W.2d 197, 199 (Tex. App.CTexarkana 1993, writ denied). Malice sufficient to overcome a qualified privilege in a defamation action requires a showing that the defendant acted with knowledge or in reckless disregard of the falsity of the publicized matter. Id. Affidavits from interested witnesses will negate actual malice as a matter of law only if they are Aclear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.@ Rule 166a(c); see also Huckabee v. Time Warner Entm=t Co., 19 S.W.3d 413, 424 (Tex. 2000). Freedom Communication=s summary judgment proof consisted of David Jay Lee=s affidavit wherein he stated that he never acted with malice or knowingly wrote an untrue statement about Sotelo and that he based his statements on the news release from the OPD which were published in the Odessa American Ain good faith to inform the readers . . . about a matter of public interest and concern.@ Midessa Television=s summary judgment evidence includes affidavits of Jay Hendricks and Enza Locascio. Hendricks, news director of KWES, stated: KWES and I personally rely on police department press release[s] on a regular basis. We routinely rely on press releases as a source and rarely, if ever, has a police department press release been inaccurate. The [n]ews [r]elease was a very credible source, and I still believe that to be true today. Locascio, a producer at KWES, stated that, A[i]n the Broadcast, I reported on the exact information contained in the [n]ews [r]elease. . . . I believed the Broadcast accurately reflected, and it did accurate[ly] reflect, the information released by the Odessa Police Department about [Sotelo].@ Having negated actual malice, the burden shifts to Sotelo to raise a fact issue. Sotelo=s controverting summary judgment evidence includes affidavits of Sotelo and of Robert Watson, a private citizen living in Midland County, Texas. The crux of Sotelo=s response to the motions for summary judgment was that (1) an average citizen would have understood Sotelo to be a sex offender after reading the article or seeing or hearing the broadcasts and (2) defendants could have easily checked whether Sotelo was a sex offender using the Texas Department of Public Safety=s Database, a link to which is provided on Midessa Television=s own website. After reviewing the summary judgment evidence, we find that Sotelo has not raised a material fact issue regarding actual malice. Because the broadcasts and article concerning Sotelo were privileged and actual malice was negated, we reverse the summary judgment orders and render judgment that Sotelo take nothing. We need not address other theories raised by the media defendants. Pursuant to Section 51.015 of the Civil Practice and Remedies Code, each party will be liable for and taxed its own costs of this appeal. Tex. Civ. Prac. & Rem. Code Ann. ' 51.015 (Vernon 1997). The orders of the trial court are reversed, and judgment is rendered that Sotelo take nothing. JIM R. WRIGHT CHIEF JUSTICE June 15, 2006 Panel consists of: Wright, C.J., and McCall, J., and Strange, J. [1]The text of the Odessa American article printed in the April 30, 2005, issue was as follows: Failure to keep track of registered sex offenders has contributed to recent tragedies in Florida and elsewhere in the nation, but area law enforcement officials are in the fifth year of a program that keeps tabs on sex offenders living in Ector County. Between 3 p.m. and 11 p.m. Thursday, law enforcement officers were able to contact 155 registered sex offenders in Ector County. Of those, most were found to be in compliance. However, two were arrested and taken to the Ector County Law Enforcement Center. Joel Jackson, 36, was arrested and charged with third-degree felony Afailure to comply as sex offender.@ He remained Friday in the Ector County Detention Center on a $15,000 bond. Jose Spencer Sotelo, 38, was charged with outstanding warrants on misdemeanor A theft and misdemeanor B Afalse ID to peace officer.@ He remained Friday in the Ector County Detention Center on a $1,000 bond. AWe try to do a major operation like this twice a year,@ Deputy Chief Lou Orras said. AWe=ve been doing this for years. But with all that=s going on in Florida, it seems pertinent now.@ About 45 law enforcement officers spent Thursday evening trying to track down 178 registered sex offenders in the city and county. As of Friday, there were 23 who had not been contacted. AWe=ll be sending detectives out to follow up with those we haven=t contacted.@ Of the 23 officers didn=t find Thursday, there are three officers suspect may have fled the area without reporting, Orras said. However, with the others, Orras said they may just have not been home at the time officers came by. AJust because they don=t answer the door, doesn=t mean they=re in violation _ they could be out shopping,@ he said. AA number of these offenders are employed during nighttime hours at oilfield leases, drilling rigs, etc.@ Detective Cpl. Tommy Davis said police detectives randomly select five sex offenders a week to check for compliance. FOOTNOTE NO. 1 CONTINUED: AWe let these guys know, I=m just doing my job to make sure they=re in compliance,@ he said. AIf they=re in compliance, it keeps them out of trouble. Some of these guys just want to get this over with and get on with their lives, but they have this cloud over their heads.@ But a couple of times a year, a cooperative of law enforcement _ including the police department, sheriff=s office, county attorney=s prosecutors and investigators, a district attorney=s prosecutor, the Texas Alcoholic Beverage Commission, Ector County adult probation and parole, Texas Department of Public Safety troopers and special crimes detectives, as well as CrimeStoppers _ band together for the one-day check of all offenders in the county. AThis is a lot of work,@ Orras said. ABut by evidence today, we couldn=t do this operation by ourselves. There=re just too many. The sheriff=s office couldn=t do it. It just allows us to pool our resources for a common goal.@ And that works out well for the community, he said. AI believe it=s for the protection of the community,@ Orras said. AThe recidivism rate for sex offenders is high, as everyone knows. The message we want to send is that we want them to follow the law, and we=ll do our part to make sure they do so by letting them know that we periodically and randomly verify that they=re where they=re supposed to be@ (emphasis added). [2]A broadcast read from a script is considered libel and not slander. Christy v. Stauffer Publ=ns, Inc., 437 S.W.2d 814, 815 (Tex. 1969).