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Public official must prove actual malice about non-official acts



By Laura Mallory

The Texas Supreme Court recently held the actual malice standard applies to public officials, even if the published story or statement does not refer to their official capacity as a public official.

A trustee on a school board of trustees for more than ten years was supporting a friend and fellow board member in his campaign for state representative. An opponent in the race portrayed the trustee’s friend as fiscally irresponsible during the race. The trustee believed that statement made about his friend was not only untrue, but it was a false criticism of himself, the other school board members and the school district. 

The trustee went to the opponent’s campaign event and asked a question and handed out printed materials regarding the facts about the school board’s taxes which challenged the fiscally irresponsible statements made by the opponent. Shortly after the campaign event, an internet blog published an article that the plaintiff had to be forcefully removed from the opponent’s campaign event by the Governor’s detail. 

Because the trustee had cooperated after he was simply asked to leave, the blog issued a correction. Despite the correction, the trustee sued the blog for libel. The blog moved to dismiss the claim under the Texas Citizens Participation Act.

Texas Citizens Participation Act and Defamation
The Texas Citizens Participation Act provides for an early dismissal of baseless legal actions that impinge on First Amendment Rights. Under the Texas Citizens Participation Act, the defendant must prove the legal action is in response to the right of free speech, the right to petition or the right of association. If proven, the burden shifts to the plaintiff, who must establish by clear and specific evidence a prima facie case for each essential element of the claim in question. The issue here was whether the trustee had to establish actual malice by clear and specific evidence due to his status as a public figure.

The U.S. Supreme Court’s 1964 decision in New York Times v. Sullivan prohibits a public official from receiving damages for a defamation claim relating to his official conduct unless the plaintiff proves the statement was made with “actual malice.” Actual malice does not mean ill will, rather, it means it was made with knowledge that the statement was false or with a reckless disregard for whether or not it was false.

The trustee argued actual malice is not an essential element of his defamation claim because the article did not identify him as a public official or clearly related to his conduct as a public official. The Supreme Court of Texas explained that an explicit reference to a person’s public office is unnecessary and the reference is implied for those who are so well known in their communities that the general public automatically associates them with their public office.

Here, the trustee is the longest serving member on the school board of trustees, was born and raised in the town which he serves and he is very involved in the community and its schools. The Court held he was a public figure, and the actual malice standard applied, despite the article failing to reference anything but the trustee’s name.




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