aap amicus brief, no appendix

8/8/2019 AAP Amicus Brief, No Appendix

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Kaufman v. Islamic Society,29 1 S.W.3d 130 (Tex. App.-Fort Worth 2009, pet. denied) ............... ..... .......... 4, 12, 13

Kelo v. City of New London,545 U.S. 469 (2005) ...................................... . . . . . . . . . . . . . . . .

Klentzrnan v. Carter Publ'n, Inc.,No. 01-07-00520-CV, 2009 Tex. App. LEXIS 9917(Tex, App.-Houston [lst Dist.] Dee. 3 1, 2009, no pet.) ................................................. 26

L & M-Surco Mfg., Inc. v. Winn Title Co.,580 S.W.2d 920 (Tex. Civ. App.-Tyler 1979, writ dism'd) ....................................... .... 13

Lovell v. GrifJin,303 U.S. 444 (1938) ..................................................... ..................................................... 7

In re Madden,151 F.3d 125 (3d Cir. 1998) .............. .. ....,,....,. . . . . . .. . . . . . . . . . . . . . . . . . . . . .New Yorlc Times v. Sullivan,376 U.S. 254 (1964) ...................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Price v . Viking Penguin, Inc.,881 F.2d 1426 (8th Cir. 1989) ........................... ........ . . . . . . . . . . . . . . . . . . . . . . .

Rogers v. Cassidy,946 S.W.2d 439 (Tex. App.-Corpus Christi 1997, no pet.) ....................................... 10

Shoerz v. Shoerz,5 F.3d 1289 (9th Cir. 1993) ................ ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 10

Swnte v. Schijfers,975 S.W.2d 70 (Tex. App.-San Antonio 1998, pet. denied) ...... .

....26

Tex. Dep 't of Transp, v. Needham,82 S.W.3d 314 (Tex. 2002) ............................................................................................... 3

Trotter v. Jaclc Anderson Enter., Inc. ,818 F.2d 431 (5th Cir. 1987) ............. .. . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22, 23, 25Trump v. 0 Brien,403 N.J. Super. 281 (2008) ....................

.............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9


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Waldbaum v. Fair ch ild Pub1 n, In c.,627 F.2d 1287 (1980)...................................................................................... 20, 21, 23, 25

WFAA-TV, Inc, v. McLemore,978 S.W .2d 568 (Tex. 1998)......................................................................................assim

Wolston v. Rea der's Digest Ass 'n,443 U.S. 1 57 (1979)...................... ............................................................................ 7STATUTES ND R U L E S

TEX.CIV.PRAC.& REM.CODE5 22.022 (Vernon Supp. 20 10)....................................... 2

Debate on Tex . S.B . 76 on the Floor of the Senate,73rd Leg. (Feb. 24, 1993)........................................................................................... 0, 11

House Research Organ ization Bill Analysis for S.B . 76........................................................................................................t 42 (May 22, 1993) 11

TEX.R. APP.P. 11 c) ...........................................................................................................

Ron Kessler and Kirte Kinser, How the Statute was Enacted:The Legislative History , 1999 LIBELDEFENSE ESOU RCEENTERBULLETIN,ssue 2 at 9 (1999)............................................. ............................................ 6

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ISSUES PRESENTE D

1. Wh ether the author and publisher of a work of investigative journalism are

members of the "print media" who may take an interlocutory appeal from an order

denying a motion for summ ary judgment raising First Am endment defenses.

2. Whether members of the print media may rely on the objective

circuinstances surrounding an individual's involvement in a public controversy at the

time of publication to determine if the individual is a limited-purpose public figure.

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STATEMENT O F INTEREST OF AMICUS CURIAE

The Association of American Publishers (AAP), is the national trade association

of the U.S. book publishing industry. AA P's approximately 300 mem bers include most

of the major comm ercial book pu blishers in the United States, as well as smaller and non-

profit publishers, university presses, and scholarly societies. AA P members publish

hardcover and pape rback boolts in every field, educational materials for the elementary,

secondary, post-secondary and professional markets, scholarly journals, computer

software and electronic products and services. The Association represents an industry

whose very existence depends upon the free exercise of rights guaranteed by the First

Amendment.

Haynes and Boone is not being paid a fee for preparing this brief.Se e TEX.R.

APP.P. 1 (c ). Neither the AAP nor Haynes and Boone have any econom ic interest in the

outcome of the case.

SUMMARY OF ARGUMENT

This interlocutory appea l involves two issues that are particularly significant to the

authors and publishers of books.

First, appellee H . W alker Royal1 challenges this C ourt's jurisdiction to review an

order denying a sum mary judgment motion filed by the author and publisher of a book.

He argues that the authors and publishers of boolts do not have standing to file an

interlocutory appeal. But Royall's contention that a book is not "print media" is contrary

to the language and purpose of the statute in question, TEX . CIV .PRAC. & REM. CODE

5 51.014(a)(6), which authorizes appellate courts to consider the merits of First


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Amendment defenses before trial so that members of the media may avoid the expense

and delay associated with litigation and discovery associated with meritless claims. This

brief addresses the practical ilnplications of Royall's argum ent for inembers of the print

media wh o write and publish boolts, whose First Amendm ent defenses would be unfairly

limited if Royall's unprecedented position w ere to become law.

Royall also argues that he is a private figure and that the First Amendment

defenses available in cases involving speech about a public figure are unavailable here.

This issue is also significant to the book publishing industry. Royall involved himself in

a newsworthy issue of great public concern when he agreed, for his own commercial

purposes, to undertake the development of private property that the City of Freeport

sought to tak e under its powers of eminent domain. This story and his involvement were

the subject of many contemporaneous newspaper articles. The book that is the subject of

this litigation, Bulldozed, was written to explain this story in the broader national context

of other eminent domain controversies and lawsuits, notably including the Supreme

Court's controversial decision inKelo v. City of New London, 545 U.S. 469 (2005).

Boolts convey vast amounts of information in great depth, and the First Amendment

protections for speech, ideas, and op inions assure the authors and publishers of boolts that

they will no t, in most cases, be held liable for convey ing this information. Roya117s

argument that he is not a public figure would have implications for press freedoms that

extend bey ond the facts of this case.


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ARGUMENT

I. Boolts are "print media" subject to First Amendment protection under Texaslaw.

In his brief, Royal1 asks this Cou rt to hold that the au thors and publishers of books

are not members of the "print media" who are permitted to seek immediate appellate

review of their First Amendment defenses under section 51.014(a)(6) of the Civil

Practice & Rem edies Code ("the Statute"). The Court should reject Royall's erroneous

and dangerously narrow reading of the Statute. The Statute covers "the electronic or

print media." By its terms it does not limit "print media" to newspapers or any other

form of media that contains only the latest new s. Roy all's contention that the statutory

term "print media" should be construed to exclude boolts is inconsistent with the

Statute's plain language and with governing principles of statutory construction.

Texas courts construe statutes as written and, if possible, ascertain legislative

intent from the statute's plain language. Courts may consider several factors to determine

the Leg islature's intent, including the object sought to be obtained, the circuinstances of

the statute's enactment, the legislative history, the coininon law or former statutory

provisions, including laws on the same or similar subjects, and the consequences of a

particular construction. HelenaChern. Co.v. Willzins, 47 S.W .3d 48 6,49 3 (Tex. 2001).

A. The plain language of the Statute defeats Royall's argument.

A boolt is a print medium, and boolts are "print media," plainly covered by the

Statute. Th e Texas Supreme Court has long applied First Am endment protections to

boolts as well as newspapers and magazines. See Doubleday& Co., Inc , v. Rogers, 674


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S.W.2d 75 1, 756 (Tex. 1984) (applying the First Amendment's "actual malice" standard

to boolts). The Statute's application to publishers of boolts has not been questioned by

other Texas appellate courts. See, e.g., Harvest House Publishers v. Local Church, 190

S.W.3d 204, 209 (Tex. App.-Houston [l s t ~ i s t : ] 006, pet. denied) (interlocutory

appeal of defamation litigation involving a book).

The principal case cited by Royall,Kaufman v. Islamic Society,291 S.W .3d 130

(Tex. App.-Fort W orth 2009, pet. denied), illustrates that the plain language of the

Statute is not to be interpreted narrowly, in a way that would exclude books from the

definition of print media. There, the court of appeals held that an internet publication

should be covered by the Statute, because of its similarity to "words published by more

traditional electronic or print media." Id . at 140. The Kaufman court compared internet

publications to boolts, not newspapers or magazines: "A statement electronically located

on a server which is called up when a web page is accessed, isno different from a

stater~zentorz a paper pag e in a boolc lyirzg on a shelf w hich is accessed by the reader

when the book is opened." Id . (citations omitted and emphasis added). TheKaufman

court recognized that books are print media, and its decision does not support Royall's

arguments.

B. The objective of the Statute is to provide procedural protections

safeguarding the First Am endm ent rights of mem bers of the media.In constsuing the Statute, this Court may also consider the object it seeks to obtain

and the circumstances of its enactment. Helena Chenz. Co., 47 S.W.3d at 493. The

objective of the Statute is to provide a procedural framew ork that promotes the freedom


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of the press, by allowing members of the press to obtain immediate appellate review

when trial courts deny sum mary judgment motions based on first Am endment defenses.

1 The Statute protects members of the media from the delay andexpense of trying meritless claims.

In the context of the First Amendment, summary judgment is not a disfavored

remedy. To the contrary, more than twenty years ago, the Texas Supreme Court

recognized that courts m ust give "careful judicial attention to summ ary judgment motions

in the context of the first amendm ent." Cassov. Brand , 776 S.W.2d 551, 557-58 (Tex.

1989). The Casso court affirmed 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." Id. at 5 58 (citations om itted).

Although the Casso court encouraged trial courts to grant summ ary judgment,

Texas law did not provide a remedy in cases where the trial court denied motions for

summ ary judgment or simply declined to rule on them. Therefore, the Texas Legislatureadopted the Statute in 1993 to deal with the crisis that defamation lawsuits had created

for members of the print and electronic media. The rationale for the statute was to save

the time and expense of a trial on the merits when a member of the media may be en titled

to a constitutional or statutory privilege. Grant v. Wood, 916 S.W.2d 42, 46 (Tex.

App.-Houston [ ls t Dist,] 1995, orig. proceeding).

Two Texas attorneys who were instrumental in the passage of the Statute have

summ arized its purpo se:

The statute was needed to presewe constitutional protections againstmeritless suits challenging First Amendment rights and to address


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dispositive issues with the utmost judicial efficiency. Texas publishers andbroadcasters had been roclted by two enormous verdicts of $29,000,000 and$58,000,000 in cases in which they firmly believed summary judgmentshou ld have been granted. Before the early 1990s, the largest Texas libelverdict had been in the $2,000,000 range and had been reversed andrendered on appeal. Traditional state court procedures were just notworlting in cases involving First Am endm ent Rights.

Ron Kessler and Kirte Icinser, How the Statute was Enacted: The Legislative Histouy,

1999 LIBELDEFENSE ESOU RCE ENTER ULLETIN,ssue 2 at 9 (1999) (attached at tab

A). The statute has succeeded in relieving the problems that led to its passage. Over the

last seventeen years, the First Amendment defenses of Texas publishers and broadcasters

have been vindicated as Texas appellate courts have frequently reversed orders denying

summary judgment in First Amendm ent cases.

2. The nature of the book business supports the Legislature's grantof jurisdiction over interlocutory appeals in cases involving bookauthors and p ublishers.

The enactment of the Statute in 1993 was an essential procedural protection

available to all mem bers of the press, including mem bers of the book industry. Royall's

argument that book authors and publishers do not have standing to appeal under the

Statute wo uld be an unw arranted limitation on the substantive and procedural protections

afforded by the First Am endment, Texas precedent, and the Statute.

The core values of the First Amendm ent reflect the fundam ental importance of the

free flow of ideas and opinions on matters of public interest and concern.Carr v.

Bra she r, 776 S .W.2d 567, 570 (Tex. 1989). These principles apply equally to every sort

of publication, with no exception for boolts."The liberty of the press is not confined to

newspapers and periodicals.. . .The press in its historic connotation comprehends every


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sort of publication which affords a vehicle o f information and opinion." Love11 v.GrifJin,

303 U.S. 44 4,45 2 (1938) (upholding press and speech freedoms for pamphleteering).

Book authors and publishers, like newspaper reporters and publishers, face

significant rislts that the financial pressures and risks of litigation and discovery will

force them to settle before their First Am endment defenses can be adjudicated by Texas

appellate courts. The unique social value of boo lts, and the financial risks involved in the

book business, help exp lain why the Statute allows book authors and pub lishers to pursue

interlocutory appeals.

By virtue of their length, boolts typically contain more factual information and

analysis than is usually conveyed in other print media, which allows for greater depth and

broader context than readers find in the shorter formats of newspaper and magazine

articles. More people, events, issues, and relationships are covered, with exp lanations

and interpretations that inform readers and encourage them to form their own opinions

and conclusions. The flow of so much information creates a greater risk that individuals

or entities that might not be mentioned in a shorter article will take offense and file a

defamation suit. See Harvest House Publishers, 190 S.W .3d at 209 (plaintiffs were

subjects of one and one-quarter pages in a 700-page book).

Furthermore, the shelf life of books is longer than that of newspapers and

magazines, which are often discarded when the next issues are published. The longer life

of boolts deepens the public conversation and understanding about facts and issues

because boolts may endure in printed form for years or generations. This durability,

however, also means that boolts are more susceptible to being misinterpreted over time


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and to offending individuals who might not have cared about a single article in a

newspaper or magazine.

In addition, the economics of book authorship and publishing are different from

other forms of print media. New spapers and magazines, when they are successful, have a

regular and predictable aud ience of readers for each issue. This predictability allows

some reporters to work as salaried employees and others to work for agreed

comp ensation as freelancers. Books are different.Many authors, especially those who

write about public issues that m ay be of interest to a limited audience , have no assurance

their boolts will be profitable and write them for reasons that may not be as directly

related to an expec tation of financial reward. Book authorship is a precarious financial

undertaking that requires a substantial investment of time. Similarly, boo k publishers are

not guaranteed sales. These realities of book publishing entail greater risks and

expenditures than newspa per and periodical publishing. How ever, because of the depth

of analysis they can offer, for many readers books provide substantive understanding that

is simply unavailable from other forms of print media.

If book authors and publishers were subject to greater exposure in defamation

litigation than other members of the print media, fewer boolts would be written or

published, at a great social cost. There is no principled basis for ensuring this anomalous

result by ex cluding boo k publishers from the protected class of "print media" covered by

the Statute.

Royall's assertion that the defendants in this case are not members of the print

media because they "were not dissem inating any 'news"' (Royal1 Br. at9) conflicts with


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historic First Amendment principles. As the Ninth Circuit held, in a widely cited

decision: "The journalist's privilege is designed to protect investigative reporting ,

regardless of the medium used to report the news to the public. Investigative book

authors, like more conventional reporters, have historically played a vital role in bringing

to light 'newswo rthy' facts on topical and controversial matters of great importance."

Slzoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993).

By their nature, books do not con tain current news, but courts have uniformly held

that the information conveyed by books is subject to First Am endment protections. Id. ;

In re Cusurnano, 162 F.3d 708, 714 (1st Cir. 1998) (recognizing that a non-journalist

academic is entitled to First Amendment protections that guarantee the flow of

"information"); Price v. Viking Penguin, Inc., 881 F.2d 1426, 1431 (8th Cir. 1989)

(applying New Yorlc Tir~zesv. Sullivan, 376 U.S. 254 (1964), to defamation claims

brought against author of book detailing the 1973 events at Wounded Knee); see also

Trump v. O'Brien , 403 N .J. Super. 281, 303-04 (2008 ) (explaining that the terms "news"

and "news media" are not narrowly interpreted under New Jersey law, for "society

demands the open and full flow of information and ideas whatever they may be and from

wherever they may come."). As the Third Circuit has stated, "it m akes no difference

whether the intended manner o f dissemination was by newspaper, magazine, book, public

or private broadcast or handbill because the press, in its historic connotation

comprehends every sort of publication which affords a vehicle of information and

opinion." I r z re Madderz, 151 F.3d 125, 128 (3d C ir. 1998) (citations omitted).


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Bulldozed covers newsworthy events that were widely reported by newspapers

when the y occurred. As a work of investigative reporting, it provides greater context and

deeper analysis concerning events that have continuing relevance to the Freeport, Texas,

community and to the national debate over the proper use of government's power of

eminent do main . As a matter of constitutional law, Bulldozed is a work of investigative

jousnalism subjec t to First Am endm ent protection. See Shoen,5 F.3d at 129 3.

C. Royall overloolts relevant parts of the Statute's legislative history.

Royall argues incorrectly that the Statute's legislative history mentions only "a

newspap er, radio station or television station," but his authority for this position consists

of a highly selective quotation, (Royall Br, at 9) (quoting Rog ersv. Cassidy, 946 S.W.2d

439, 443 (Tex . App.-Corpus Christi 1997, no pet,)). The Corpus Christi case quoted in

Roy all's brief decided, correctly, that the Statute does not authorize defama tion plaintiffs

to take interlocutory appeals from the denial of their summary judgmen t motions. Id .

That case arose from a newspaper publication, not a book, and nothing in that decision

supports Royall's argumen t that boolts are not "print media" for purposes of the S tatute.

In fact, the Statute's legislative history contradicts Royall's narrow interpretation

of its coverage. The o riginal sponsor of the bill, Senator Turner, identified the purpose of

the bill as to "ensure no chilling effect upon the exercise of the freedom of press and

speech." Debate o n Tex. S.B. 76 on the Floor of the Senate, 73rd Leg. (Feb. 24, 1993)

(floor tape available from Sena te Staff Services). The debate on the bill largely centered

on whether the right of interlocutory appeal should be available to all defamation

defendants. Eventually, a comp romise amendm ent was proposed that broadened the


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scope of S.B. 76 and extended the appeal right to anyone whose opinion was published,

even if that person was not a member of the media. Senator Turner explained the

amendm ent, stating that it"extends a right of appeal from sum mary judgment to courts of

appeal to any person whose communication appears in,or is published by , electronic or

print media." Debate on Tex. S.B . 76 on the Floor of the Senate, 73rd Leg. (Feb.25,

1993) (floor tape available from Senate Staff Services) (emphasis added).

Nothing in the legislative history excludes boolts from the Statute's protection for

mem bers of the print media. The House Bill Analysis cited by theRogers court and by

Royal1 summ arizes arguments made for and against the bill. Under the "Supporters Say"

section, the Bill Analysis says that "SB 76 would allow a newspaper, radio station or

television station that was sued for libel to malte an immediate appeal of a judge's refusal

to grant summary judgment.. . ." House Research Organ ization Bill Analysis for S .B. 76

at 42 (May 22, 1993) (attached at tab B). The language of this bill analysis, which is the

entire basis of Ro yall's statutory argument, does not exclude other types of print media

from being covered by the plain language of the bill. While this single sentence of the

bill analysis mentions only newspapers and not magazines and books, the remainder of

the House bill analysis is consistent with the actual language in the bill that became the

Statute.

The very next paragraph of the bill analysis states that the bill will protect "[tlhe

free-speech and free-press lights ofprint and electronic media." Id. The same section

states: "A free, open and robust debate on public issues can only occur [i]fthe media is

protected from unreasonable intimidation through the threat of expensive libel suits."Id .


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Similarly, the Senate Research Center Bill Analysis for S.B. 76 (August 26, 1993)

describes the "Purpose" of the bill as authorizing interlocutory appeals "in cases

involving defamation, libel, or slander, or arising from a broadcast or written

publication." (emphasis added). These bill analyses do not support Roy all's attemp t to

interpret the Statute to remov e books from the category of written publications.

D. A similar statute, the Texas shield law, makes clear that a bookpublisher is a mem ber of the news media.

Royall's argument is further undermined by a new provision in the Civil Practice

& Remedies Code that specifically defines the news media to include book publishers.

The new Texas shield law was enacted in 2009 to protect journalists from revealing

confidential sources. The shield law's stated purpose "is to increase the free flow of

information and preserve a free and active press and, at the same time, protect the right of

the public to effective law enforcement and the fair administration of justice." TEX. CIV.

PRAC,& REM. CODEANN.5

22.022 (Vernon Supp, 201 0).

The shield law includes a list of statutory definitions that are relevant to the proper

interpretation of the Statute. See Kaufm nn, 291 S.W .3d at 142 (citing Texas shield law to

determine interlocutory appeal was proper because of defendant's "status as a mem ber of

the media through his internet publications."). The shield law defines a "journalist" in

the broadest terms, as a person who "gathers, compiles, prepares, collects, photographs,

records, writes, edits, reports, investigates, processes or publishes news or information

that is disseminated by a news medium... ." TEX. CIV. PRAC. & REM. CODEANN.

tj 22.021(2). It defines "news medium" to mean "a newspaper, magazine or periodical,


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[or] boolc publisher . . . that disseminates news or information to the public by any

means, including (A ) print. . . ." Id. at 22.021(3) (emphasis added). Obviously, a book

is a news med ium, because it disseminates information to the public by means of print.

The Legislature's definition of "news medium" in the new shield law defeats

Royall's argument that the S tatute should be construed differently, as both laws deal with

similar language and subjects. When construing a statutory word or phrase, Texas courts

consider the meaning of the same or similar language used elsewhere in the act or in

another act of sim ilar nature, Kaufman, 291 S.W .3d at 142;I , & M-Surco Mfg., Inc. v.

Wirzn Title Co., 580 S.W .2d 920, 926 (Tex. Civ. App.-Tyler 1979, writ dism'd);

Guthery v . Taylor, 112 S.W .3d 715, 721 (Tex. App.-Houston [14th Dist.] 2003, no

pet.). Cou rts are not to give an undefined statutory term a meaning out of harmony or

inconsistent with other provisions. Tex. Dep 't of Transp.v. Needham , 82 S.W .3d 3 14,

3 18 (Tex. 2002). Under these principles of statutory construction, there can be no serious

argument that books are not print media.

11. Royal1 is a limited-purpose public figure for p urposes of his defama tion suit.

Defamation cases give rise to two com peting values: "the need for a vigorous and

uninh ibited press and the legitimate interest in redressing wrongful injury." Gertzv.

Rob ert Welch, In c., 418 U.S. 323, 341 (1974). The United States Supreme Court

balanced these interests by recognizing two categories of plaintiffs: public and private

figures. Id . at 343-4 4. To prevail, public figures must demonstrate by clear and

convincing evidence that a defendant acted with actual malice. Id. at 342.This


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heightened protection allows the freedoms of speech and of the press "that breathing

space essential to their fruitful exercise." Id.

These categories of plaintiffs were designed to provide speakers with clear

expectations and, hence, predictable results. Id , at 343. By arguing that the Court must

evaluate whether Royall was a public figure as of the time he agreed to help Freeport

with its marina project, Royall advocates a position that would destroy this consistency

and embroil Texas courts in a subjective inquiry into whether a plaintiff voluntarily

entered a public con troversy years before it even began. This stance marlts a clear

departure from the roots of the public-figure doctrine. It also inhibits media coverage of

public controversies by making it impossible, in cases like this, to determine whether a

plaintiff is a public figure without a detailed- and perhaps fruitless- inquiry into the

origins of the plain tiffs involvement in the controversy. This uncertainty undercuts the

constitutional protections intended to ensure "breathing space" for the freedoms of

speech and press.

The parties dispute whether Royall is a limited-purpose public figure. A limited-

purpose public figure "voluntarily injects himself or is drawn into a particular public

controversy and thereby becomes a public figure for a limited range of issues." Id. at

35 1. Under Texas law, an individual may becom e a public figure by choosing "to engage

in activities that necessarily involved increased public exposure." WFAA-TV, nc. v.

McLernore, 97 8 S.W .2d 568, 573 (Tex. 1998). Therefore, Royall asks this Court to look

backwards nearly five years from the time Bulldozed was published to determine

whether, by accepting the marina project in 2002, Royall engaged in a course of conduct


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bound to invite attention and comm ent. (Royal1 Br. at 17.) How ever, there is no need for

this Court to engage in such a tortured inquiry.

Royall's argument is premised on the assumption that public figures must

voluntarily assum e a central role in a public controversy. (Appellee's Br. at 14 -15.) In

fact, whether "voluntariness" is a requirement under the limited-purpose public-figure

test is an open question in Texas. McLemore, 978 S.W .2d at 572. The better view, truer

to First Am endm ent principles, is that "voluntariness" is not required. The facts of this

case illustrate the significant adverse consequences if the Court were to adopt a rule that

required the media to conduct a searching inquiry into events occurring years before

publication.

A . Supreme Court precedent recognizes involuntary public figures.

The distinction between public and private figures was established by the United

States Supreme Court in Gertzv. Robert Welch, Inc., 418 U.S. 323 (1974). The Court

recognized the underlying tension in all media defamation cases between the need for a

vigorous and un inhibited press and the state interest in com pensating individuals harmed

by defamatory falsehood. Id. at 341-42. However, it expressly rejected a case-by-case

balancing of these interests, concluding that it would lead to "unpredictable results and

uncertain expectations." Id , at 343-44. Instead, the Court created two categories of

plaintiffs - public and private figures- to approximate the relative weight of these

competing values in particular cases. Id.

In creating these categories, the Cou rt focused on the defamation plaintiff. Public

figures, as opposed to private figures, generally: (1) enjoy greater access to the media


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enabling them to coun teract false statements, and(2) invite attention and com ment. Id , at

344-45. Fo r these reasons, the Court concluded that private figures usually are more

susceptible to injury and more deserving of recovery.Id at 345. Accordingly, the state

has a stronger interest in compensating private figures, as opposed to pub lic figures, who

suffer harm caused by defamatory falsehood. The stronger state interest justifies

imposing a low er bar to recovery by private individuals.

However, as the Supreme Court noted, "it is often true that not all of the

considerations wh ich justify adoption of a given rule will obtain in each particular case

decided under its authority." Id. at 344. The Court anticipated that the generalizations

that justified the creation of different liability rules for public and private figures- access

to the media and action inviting comment- would not apply in every case. To the

contrary, the Court foresaw the possibility of an involuntary public figure.Id . at 345 ("it

may be possible for someone to become a public figure through no purposeful action of

his own").

The S uprem e Court acknowledged that public figure status is determined from the

perspective of the media defendant: "Even if the foregoing generalities do not obtain in

every instance, the comnzunicatioizs media are entitled to act on the assumptionthat . . .

public figures have voluntarily exposed themselves to increased risk of injury from

defamatory falsehood." Id . at 345 (emphasis added). Thus, the Court implicitly

recognized that media defendants are not required to delve into an individual's extended

history before reporting on a developing public controversy.


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This is not to say that the issue of voluntariness is irrelevant. In fact, it runs

throughout the C ourt's jurisprudence. See, e.g., Hutclzirzsonv. Proxmire, 443 U.S. 111,

135-36 (1979); Wolstoizv. Reader's Digest Ass'n, 443 U.S. 157, 166-69 (1979). Rather,

the Court created two paths to public-figure status. An individual becomes a public

figure if he either (1) occupies a central role in a public controversy or(2 ) voluntarily

injects himself in to a pub lic con troversy. See, e.g., Gertz, 41 8 U.S. at 35 1 ("an individua l

voluntarily injects himself or is drawn into a particular public controversy and thereby

becom es a pub lic figure for a limited range of issues") (em phasis added). Either criterion

is sufficient, although in practice many plaintiffs satisfy both. Neither pa th necessitates a

searching inquiry into events occurring years before the media reports on a public

controversy.

Royal1 relies on the Supreme Court's decision in Wblstonv. Reader's Digest

Ass 'n, 443 U .S. 157 (1979), to argue that an individual must voluntarily seek media

attention and comment. Wolstoiz, however, cannot be interpreted so broad ly. In Wolston,

the plaintiff failed to respond to a subpoena to appear before a grand jury conducting a

major investigation into the activities of Soviet intelligence agents in the United States.

Id . at 161-62. The Court concluded that it was "clear that petitioner played only a minor

role in whatever public controversy there may have been concerning the investigation of

Soviet espionage." Id. at 167. The Court then noted that the plaintiff did not voluntarily

inject himself in to the debate by using the contempt citation as a fulcrum to create public

discussion. Id , at 168. In other words, the plaintiff did not achieve public-figure status


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either by virtue of (I) occupying a central role in the controversy or(2) voluntarily

injecting himself into the d ebate.

In contrast, the Supreme Court's decision in GreenbeltCoop. Pu bl 'g Ass 'n, Inc, v.

Bresler, 398 U.S. 6 (1970), illustrates that an individual may become a limited-purpose

public-figure simp ly by occup ying a central role in a public controversy. In Greenb elt,

the Court concluded that a local real estate developer and builder was a public figure

because he was "deeply involved in the future development of the city." Id , at 8. The

Court stated: "[The dev eloper] had entered into agreeme nts with the city for zoning

variances in the past, and was again seeking such favors to permit the construction of

housing units of a type not contemp lated in the original city plan. At the same time the

city was trying to obtain a tract of land owned by [the plaintiffl for the purpose of

building a school." Id , at 8-9. Without pausing to consider whether the plaintiff sought

press attention o r whether the plaintiff should have foreseen that filing an app lication for

a zoning variance would later place him at the center of a public controversy, the Court

concluded: "[The pla int iffs ] status thus clearly fell within even the most restrictive

definition of a 'public figure."' Id . at 9. The analysis in Greenbelt is in harmony with

Gertz. It demo nstrates that the inquiry into public figure status is determined from the

perspective of the coinmunications media and that it is not necessary "for all of the

considerations which justify adoption of a given rule [to] obtain in each particular case

decided under its authority." Gertz, 41 8 U.S. at 344.

Like the developer in Greenbelt, Royall is a public figure because he played a

central role in a newsworthy real estate developmen t in the City of Freeport. Royall was


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the developer of a major public-private project and the signatory of every major

agreeme nt related to the project. W henBulldozed was published in 2007, Royall -whether voluntarily or not - ccupied a central position in a significant publiccontroversy su i~oundinghe Freeport marina project. There is no need to delve years into

the past to determ ine if Royall could have foreseen the controversy that wou ld later arise.

Furthermore, imposing such a burden on the media w ould be untenable.

Royall argues that Main and Encounter were required to submit summary

judgment evidence "showing that Royall thrust himself to the forefront of the dispute

concerning the marina project to influence the resolution of the issues involved" or that

he "voluntarily engaged in activities that necessarily involved the risk of increased

exposure an d injury to reputation." Thus, he seems to argue that Main, whose book cam e

out in 2007, should have determined whether Royall intended to generate a public

controversy when he signed the developm ent agreemen t years earlier.

This would be an extraordinary burden for the law to assign to a book author or

any other member of the media. Me mbers of the media must be entitled to rely on the

objective circumstances surrounding an individual's involvement in a public controversy

at the time o f publication to determine if the individual is a limited-purpose public figure.

To hold othenvise would create uncertainty that would severely hamper First

Am endme nt protections. As the following section explains, the better view of First

Amendment law does not support Royall's position.


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B. The Fifth C ircuit adopted a three factor test for limited-purpose publicfigures that maltes no distinction between voluntary and involuntarypublic figures.

Despite Gertz's emphasis on predictability, the lower courts still struggled to

identify limited-purpose public figures, leading the Fifth Circuit to observe over a decade

later that "defining a public figure has been likened to trying to nail a jellyfish to the

wall." Trotter v. Jaclc Anderson Enter., In c., 818 F.2d 43 1, 433 (5th Cir. 1987). To give

shape to the inquiry, the Fifth Circuit adopted a three-factor test to guide the

identification of limited-purpose public figures: "(1) the controversy at issue must be

public both i n the sense that people are discussing it and people other than the immed iate

participants in the controversy arelikely to feel the impact of its resolution; (2) the

plaintiff must have more than a trivial or tangential role in the controversy; and (3) the

alleged defamation must be germane to the plaintifrs participation in the controversy."

Id, This three factor test was later adopted by the Texas courts. See, e.g., McLemore,

978 S.W.2d at 571-72. As noted by the Texas Supreme Court, this test "does not

distinguish between plaintiffs who have voluntarily injected themselves into a

controversy and those who are involuntarily drawn into a controversy." Id . This was not

accidental.

The Fifth Circuit test originated in the District of Columbia Circuit. See

Waldbazim v. Fa irch ild Pub1 n, Inc., 627 F.2d 1287 (1980). In developing this test, the

court echoed the need for predictability expressed in Gertz, stating:

Clear guidelines are important, first, for the press. As noted above, theentire scheme of "strategic protection" for certain defamatory statementsrests not on the inherent value o f those statements but instead o n the need to


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avoid chilling the dissemination of information and ideas that areconstitutionally protected for their own sake. Because the outcome offuture litigation is never certain, members of the press might choose to erron the side of suppression when trying to predict how a court wouldanalyze a news story 's first amendment status. Questionable areas thusreceive prophylactic protection to ensure that the press will not refrain frompublishing material that has value under the first amendment due to its owncontent.

Id , at 1293 (internal citation omitted). For these same reasons, "a court analyzing

whether a given plaintiff is a public figure must look at the facts, taken as a whole,

through the eyes of a reasonable person." Id . The D .C. Circuit recognized that such an

"objective approach should enable both the press and the individual in question to assess

the individual's status, in advance, against the same yardstick." Id . Applying these

principles, the court concluded that to be a public figure: "The plaintiff either must have

been purposely trying to influence the outcomeor could realistically have been expected,

because of his position in the controversy, to have an impact on its resolution."Id . at

1297 (emphasis added).

Several years later, the District of Columbia Circuit recognized an involuntary

public figure. See Da~neron . Washingtoiz Magazine, IT?,^., 779 F.2d 736, 740-43 (D.C.

Cis. 1985 ). In Dame ron, the plaintiff was the sole air traffic con troller on duty at Dulles

airport the day that a plane crashed into a m ountain on its approach to the airport.Id , at

738 . The court concluded: "There is no question that Dam eron played a central, albeit

involuntary, role in the controversy." Id . at 741. "He became embroiled, through no

desire of his own, in the ensuing controversy over the causes of the accident. He thereby

became well laown to the public in this one very limited connection."Id. at 742 . In


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Dam eron, as here, a searching inquiry into whether the plaintiff could have foreseen the

subsequent controversy at the time he assumed the role of air traffic controller would

have destroyed the protections provided to the press in Waldbaum.

Less than two years later, the Fifth Circuit expressly adopted the Waldbaum three-

part test. See Trotter v. Jaclz Anderson Enter., Inc., 818 F.2d 431 (5th Cir. 1987). In

Trotter, the plaintiff sewed as president of a Coca-Cola bottling company in Guatemala

City. 8 18 F.2d at 432 , A political columnist published two articles about a prolonged

and violent labor con flict at the Coca-Cola plant. Id. One of the articles reported that

there was "an uninercifully ruthless campaign of intimidation and terror orchestrated by

the plant management and its Am erican owner, John Clinton Trotter." Id . at 433. Trotter

sued for libel. The district court granted the defendant's motion for sum mary judgment,

concluding that Trotter was a public figure. Id. The Fifth Circuit affirmed, stating: "By

virtue of his position at [the Coca-Cola plant] Trotter was a central figure in important

policy matters at [the plant], including the labor union controversy." Id. at 435. The

court did not analyze whether Trotter could have foreseen, at the time he accepted a

position as president of the plant, that it might later place him in the center of a widely

publicized labor controversy. Nor was the Fifth Circuit persuaded by Trotter's

contention that he never sought pub lic attention. Instead, it held: "While an individual

can achieve public-figure status by aggressivelyseeking public attention or by exercising

his access to the media, an individual cannot erase his public-figure status by limiting

public comm ent and maintaining a low public profile." Id. at 435-36.


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Trotter is directly on point. By virtue of his position as developer of the Freeport

Marina, Royall became a central figure in a highly controversial eminent dom ain project.

He could not erase his public-figure status by refusing to talk to the media or by

maintaining a low public profile. From the perspective of a reasonable person evaluating

the circumstances at the time of publication, he "could realistically have been expected,

because of his position in the controversy, to have an impact on its resolution."

Waldbaum, 627 F.2d at 12 97. To require a more searching inquiry would hamper First

Am endment protections.

Citing the Fourth Circuit's opinion in Carrv. Forbes, Inc., 259 F.3d 273 (4th Cis.

2001),' Royall asserts that public figures are not created merely by contracting with the

government or accepting public money. (Appellee's Br. at 15.) This is true. For

example, in Hutchirzson v . Proxnzire, 443 U.S. 111 (1979) the United States Supreme

Court rejected the use of subject-matter classifications to determine the extent of First

Am endment protections. In Hutchinson, a research scientist sued a United States Senator

for defamation arising out of the Senator's grant of the "Golden Fleece" award to federal

agencies sponsoring the scientist's research. Id. at 114. The Court concluded that the

scientist was a private figure because there was no "public controversy" surrounding his

research at the time the Senator bestowed the "Golden Fleece" award. Id. at 135. The

Court noted that a national debate regarding general public expenditures could not satisfy

'

Forbes itself provides little guidance. The Fourth Circuit employs a five-factor test to determinewhether a plaintiff is a limited-purpose public figure. 259 F.3d at 280. This test differs from the three-factor test adopted by the Fifth Circuit and the Texas Supreme Court. See Trotter, 818 F.2d at 431;McLenzore, 978 S.W.2d at 57 1-72.


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the requirement for a "public controversy" othenvise "everyone who received or

benefited from the myriad public grants for research could be classified as a public

figure." Id.

Here, by contrast, Royall is not a public figure merely because he contracted with

the government and accepted public money. If the City of Freeport had not used its

power of eminent domain to pressure people to sell and then later filed eminent domain

proceedings that subsequently sparked years of litigation, political action, and public

debate, Royall migh t have remained a relatively unlcnown private individua l. However,

events took a different course, and the marina project, unlike the scientist's research in

Hutchinson, eventually garnered substantial attention, accompanied by fierce public

debate, long before Bulldozed was published.

Whether voluntarily or not, Royall occupied a position at the heart of this major

public controversy. It would have appeared to any reasonable person in 2007 that Royall

was in a position to have an impact on the marina project. Neither this Court nor the

media are required to engage in a laborious inquiry into the origins of Royall's

involvement in the dispute in 2002.

C. The Texa s Supreme Court has adopted the Wuldbuum/Trotter test.

Although "voluntariness" is still an open question in Texas, see McLernore, 978

S.W.2d at 572, the courts have not been silent on this issue. Royall cites the Texas

Supreme Court's decision in McLernore to support the assertion that a limited-purpose

public figure must voluntarily engage in activities that necessarily involved the risk of

increased exposure and injury to reputation. (Appellee's Br. at 14 .) But McLemore does


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not stand for such a broad proposition. To the contrary, the Cou rt stated: "Because. . .

McLemore c learly voluntarily injected himself into the controversy at issue, we need not

decide in this ca se whether 'voluntariness' is a requirement under the limited-purpose

public-figure test." Id. In McLemore, the Court held that a journalist covering a

controversial and well-publicized ATF raid "assumed a risk that his involvement in the

event would be subject to public debate" because he chose "to engage in activities that

necessarily involved increased public exposure and media scrutiny."Id . at 573. Yet by

expressly leaving the issue of "voluntariness" open, McLemore indicates that

"voluntariness" is a sufficient, but not a necessary, path to public-figure status.

Viewed as a who le, McLernore also suggests that the Texas Supreme C ourt would

follow the Fifth Circuit and the District of Columbia Circuit. The op inion draws heavily

on the decisions in T rotter and Waldbaum. Id , at 571-73. In fact, the Court adopted and

applied the three-factor test laid out in those opinions. Both T rotter and Waldbaum

represent well-reasoned opinions, faithful to both the Supreme Court's call for

consistency and p redictability in the law of defamation and to its vision of an involuntary

public figure. See Trotter, 818 F.2d at 435-36; Waldbaum, 627 F.2d at 1298.

Accordingly, this Court should follow these authorities, reject Royall's premise that

"voluntariness" is a requirement under the limited-purpose public figure test, and

conclude that the media is entitled to rely on the circumstances as they appear at the time

of publication.

This Co urt would not be the first Texas appellate court to reach this conclusion. In

1998, the San Antonio Court of Appeals recognized an involuntary public figure. See


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Swate v. Schiffers, 975 S.W.2d 70 (Tex . App.-San Antonio 1998, pet. denied). In

Swate, a doctor su ed media defen dants alleging that a newspaper article falsely stated that

he engaged in professional and criminal misconduct.Id. at 7 5 . The media defendants

argued that Swate was a limited-purpose public figure. I d Swate filed an affidavit

stating that he h ad "not been an advocate or attempted to influence the resolution of any

public controversies." Id. at 75-76. Rather, Swate argued that he had "been drawn into

court and state action." Id. at 7 6 . The San Antonio court rejected this position,

concluding: "Although Swate may not have voluntarily injected himself into controversy,

he has certainly been drawn into controversy, so much so that the trial court properly

concluded as a matter of law that Swate is a public figure for the purposes of this

lawsuit." Id.

Thus, although this Court would be among the first of the Texas intermediate

courts of appeals to squarely address an involuntary public figure, there is ample

authority supporting the extension of the doctrine laid out in McLenzore to involuntary

public figures.

In 2009, the Houston First Court of Appeals rejected an argument that a plaintiff can become aninvoluntary public figure simply based on the relationship of his conduct to a public official. SeeKlentzn~un 11. Curter Publ'n, Inc., No. 01-07-00520-CV, 2009 Tex. App. LEXIS 9917, at "48 (Tex.App.-Houston [l st Dist.] Dec. 31, 2009, no pet.). In Klenzman, the media defendant published anarticle including references to the son of the chief deputy sheriff for Fort Bend County. Id , at "3 . Thearticle described the ticketing of the son for a minor-in-possession of alcohol charge and alleged that thesheriff held "roadside suppression hearings" with deputies involved in the incident. Id , at "4 . Thus, theplaintiff did not satisfy either route to public figure status - namely, occupying a central position in thecontroversy or voluntarily seeking to illject himself into the controversy. The plaintif fs relationship to apublic figure provides no basis for altering this analysis. However, this opinion sheds little light onwhether a plaintiff can become a public figure based on the central role he occupies in a controversy.


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In sum, this Court should reject Royall's argument that "public figure" status must

be determined at the origin of Royall's involvement with the Freeport marina project and

its underlying premise that a public figure must voluntarily assume a central role in a

controversy. To ensure the freedoms of speech and press that "breathing space" essential

to their exercise, the media must be entitled to rely on the objective circumstances

surrounding an individual's involvement in a public controversy at the time of

publication. This approach remains true to the rationale set forth by the United States

Supreme Court in Gertz and the subsequent evolution of the public figure doctrine in the

Fifth Circuit and Texas courts.

CONCLUSION

Royall's arguments would impose new and unjustified limitations on the

availability of summary judgment in defamation cases involving media defendants and

involuntary public figures in Texas. These arguments are inconsistent with the

procedural protections provided by the Statute and the substantive protections granted by

the First Amendment, Accordingly, they should be rejected by this Court.


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Respectfully submitted,

HAYNES ND BOONE, LP

ate PIN 113313000E f f g . d b l e sState Bar No. 15053050Polly GrahamState Bar No. 240653 18122 1 McKinney, Suite 2 100Houston, Texas 77010-2007Telephone: (71 3) 547-2000

Telecopier: (7 13) 547-2600

COUNSEL OR AMICUS URIAE


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CERTIFICATE OF SERVICE

In accordance with the Texas Rules of Appellate Procedure, I certify that a trueand correct copy of thisBrief of Amicus Curiae Association of American Publisherswassent to the following counsel via certified mail on July 16 ,20 10 :

Counsel for Appellan t,Carla T. Mairz and E~zc ou nte rorCulture and Education:

Matthew R . MillerWesley HottotINSTITUTEOR JUSTICE TEXASCHAPTER816 Congress Avenue, Suite 960Austin, Texas 78701

Dana BerlinerINSTITUTEOR JUSTICE901 N. Glebe Road, S uite 900Arlington, Virginia 22203

John J. LittleMegan DredlaLITTLE EDERSENANICHAUSERLP901 M ain Street, Suite 41 10

Dallas, Texas 75202

Coulzselfor Appellee H. Wallcer Roya ll:

Robest GilbreathHAWKINS,ARNELL THACKSTON,LP45 14 Cole Avenue, Suite 500Dallas, Texas 75205

Patlick Zumm o3900 Essex Lane, Su ite 800Houston, Texas 77027

Polly ~r a$ am

aap amicus brief, no appendix

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