Court Blues: Making a False Impression

Dolcefino escapes a libel hit, but Texas journalists aren't celebrating

The reviews are in.

Here's what a majority of the Texas Supreme Court thinks of the reporting of Channel 13's legendary Wayne Dolcefino: It's "false and defamatory"; it's "misleading"; and "through omission of critical facts and juxtaposition of others, [it] left a substantially false impression."

And a minority of the court was even more stinging: "Dolcefino manipulated the facts to exaggerate"; he "did more than merely present an unbalanced story. He omitted key facts … and these omissions significantly changed the story's character." The story Dolcefino aired was "a calculated falsehood."

And all this came in a court decision that Dolcefino won, for crying out loud, although his win came at the expense of every other Texas journalist, all of whom can now be sued more easily for libel.

The court's rhetoric came in Sylvester Turner v. KTRK Television and Wayne Dolcefino, the celebrated libel suit brought by the state representative in 1992. Turner claimed Dolcefino killed his hopes of becoming Houston's mayor by airing, just a few days before a runoff election against Bob Lanier, a report linking Turner to a multimillion-dollar insurance scam.

The lawsuit has been bouncing around the justice system for nearly nine years, with Turner winning a $5.5 million jury verdict in 1996. The 14th Court of Appeals overturned the award two years later, leading to the December 21 ruling by the state Supreme Court.

The Supreme Court upheld the lower court's ruling that Turner failed to prove that Dolcefino had acted with actual malice in his reporting, a term of art that has long protected reporters from being successfully sued for innocent mistakes. (A minority of the court believed that Dolcefino had acted maliciously.)

But in ruling that Turner should get no money, the court widened Texas libel law, moving distinctly away from a trend that was making it harder to win such cases. The standard in the state's courts had long been that media outlets could successfully defend libel suits if they showed that the statements made in the relevant report were true; the Supreme Court ruled in the Turner case, however, that plaintiffs could win merely if the impression left by the report was false.

Up until the ruling, a station could have aired a report filled with hidden-camera shots and ominous music that said Senator Jones was seen on Navigation Street at 2 a.m., giving fifty bucks to a scantily clad woman-not-his-wife with whom he then drove a short distance away for a brief rendezvous.

If it turned out Senator Jones was merely helping out a daughter whose car had broken down on the way home from a costume party, Senator Jones was shit out of luck, in terms of a libel case. All the facts in the report were accurate; it's the impression left that wasn't. Jones's suit would have been tossed out with a summary judgment. Thanks to Dolcefino, Jones now would likely get his day in court and might well win.

Most states allow plaintiffs to sue over untrue impressions, but courts in Texas had never agreed until Turner v. KTRK.

"The idea that an 'accurate but untrue' story was protected was being developed in Texas, but that is clearly not the law anymore," says James George, a libel expert from Austin who has represented The Wall Street Journal and HBO. "Texas is still pretty protective of news [organizations]. It had been very protective, but this ruling has brought us back towards the middle."

Dolcefino referred all Houston Press questions to his attorney, Chip Babcock, who was traveling and unavailable for comment before deadline.

The Turner ruling may elate media-haters, and of course any station that aired the Senator Jones story would be acting irresponsibly and should be taken to task. But the court's decision, and the vagueness of "impressions," may have a chilling effect on newsrooms.

Every story aired or published involves deciding which facts to include and which to omit. If an editor has to worry that a judge may someday find that an omitted fact should have been included in a story, the decision to shy away from potentially litigious stuff becomes even more appealing to the weakhearted.

There is another group that's happy with the decision, of course.

"We who defend news organizations have grown weary of no one suing our clients," George says, visions of billable hours dancing in his head. "Remember, there's nothing bad that happens that isn't somehow good for lawyers."

Double Up

The Houston Chronicle, ever in the hunt to build circulation, is not satisfied with simply colorizing its weather map. It has moved on to efforts that are bigger, bolder -- and nuttier.

Subscribers have been getting offers mailed to their homes headlined "Make your Sunday twice as nice!"

How does one accomplish that? Simply by signing up to get two editions of the Sunday Chronicle delivered each weekend.

"Double the funnies with 2 Comics sections!" the flyer reads. "2 TV Chronilogs to make finding your shows easier!"

"Make finding your shows easier"? How, exactly? And how difficult is it, anyway?

The ad goes on: "We know that you, our subscribers, enjoy the many features that arrive each week, only in your Sunday Chronicle….But wouldn't it be nice to have them all twice?"

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