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Does your freelance author have an ax to grind



By Peyton Smith

A Texas woman, Ms. Rosenthal, brought suit against D Magazine for libel alleging the magazine published a story that wrongly accused her of committing welfare fraud in an article titled “The Park Cities Welfare Queen.” The trial court denied the magazine’s motion to dismiss, and the Texas Court of Appeals recently affirmed that ruling.

Following lengthy divorce and child custody proceedings against her former husband, Rosenthal found herself financially drained. So, she applied for and received government benefits under the Supplemental Nutritional Assistance Program (SNAP). About a year later, she and her daughter moved in with her then fiancé. That, however, did not sit well with the fiance’s ex-girlfriend, who, Rosenthal alleged, harassed her while she and her fiancé were dating. The jealous ex-girlfriend even went so far as to impersonate police and “disease control representatives” to try to ruin Rosenthal’s reputation. 

Several months later, an article was published in D Magazine about Rosenthal. It accused Rosenthal of welfare fraud saying that she, while living in a rich part of Dallas with her fiancé, was still receiving government benefits, and that those benefits were spent at posh stores. The article also described Rosenthal’s affidavit of indigency, her criminal record, and accused her of falsifying records to continue to receive benefits. After the article was published, Rosenthal’s fiancé broke up with her. She claimed she was shunned by her friends and had difficulty getting a job. 

After the article was published, Rosenthal called the Texas Health and Human Services Commission (HHSC) to find out if she had done anything wrong. After investigation of the facts in the article, HHSC concluded there was no evidence of fraud or abuse of benefits.

Check your sources
How did D magazine find out information about Rosenthal’s SNAP benefits account and her spending of the benefits? Rosenthal testified that recordings of telephone calls to HHSC from before the article was published showed a woman had called HHSC pretending to be Rosenthal. The woman used Rosenthal’s social security number and date of birth to access information about Rosenthal’s SNAP benefits. Rosenthal testified that the voice on the recordings was none other than her fiancé’s ex-girlfriend. 

To prove defamation, a plaintiff must show that the gist of the article was false and defamatory, that the plaintiff was damaged, the publication was not privileged, and finally that the publisher was negligent in publishing the article. A publisher is negligent if it does not act reasonably in checking the truth or falsity or defamatory character of the communication before publishing it. In determining the reasonableness of the publisher’s conduct, courts look to the time sensitivity of publishing the article, what the publisher was seeking to promote by publishing the communication and the extent of damage to the plaintiff if the communication proved to be false.

Check your freelancers
The appellate court found that Rosenthal had established a prima facie case of defamation and that the publisher had acted negligently in checking the truth of the article. The publisher also did not tell Rosenthal the specific statements in the article when it called to ask Rosenthal for her side of the story. 

The publisher, in fact-checking the information about Rosenthal’s SNAP benefits, had relied on a freelance author to provide information about the SNAP benefits without verifying the credibility of the author or contacting the HHSC employees to verify the information given by the freelancer. Rosenthal, based on transcripts of conversations with HHSC, testified that the freelance writer was in fact her fiancé’s ex-girlfriend.

The court also rejected D Magazine’s affirmative defenses of truth and fair comment privilege and affirmed the trial court’s denial of D Magazine’s motion to dismiss.




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