This column is written by Paul Watler, Jackson Walker LLP.
Q: How do I recognize a defamatory statement in a letter to the editor? What if non-print and other media have in effect published the same defamatory statement?
A: A letter to the editor that includes a false statement that injures another person’s reputation may expose a newspaper to a libel lawsuit. Although previous publication by a website or other media does not automatically shield a newspaper, an important change in Texas law a few years ago gives added protection when a letter involves allegations about a matter of public concern.
Recognizing a potentially defamatory letter is much the same as recognizing legally troublesome news content. False statements that accuse a person of a crime, a breach of ethics or professional dishonesty are classic as examples of defamation, depending on the context.
Texas law has long protected substantially truthful publications – those that correctly convey the gist of an event or assertion even if some details are incorrect. In 2015, Texas law was amended by statute to expressly allow for a newspaper defendant to prove truth by showing that a publication accurately portrayed allegations by a third party on a matter of public concern.
How does this come into play with letters to the editor? First, and obviously, letters typically discuss matters of public concern, which frequently are those that have been published by other media outlets. A controversy at the local school board, an accusation of excessive use of force by police or the fitness of a candidate for public office are all examples of topics of public concern. And all are frequently the subject of letters to the editor.
Plus, a letter writer – typically, a subscriber or reader – is a “third party” to the newspaper. Thus, a letter to the editor may contain all the elements necessary under Texas statute to defend against a libel suit on the basis that it was a truthful and accurate account of allegations by a third party regarding a matter of public concern.
Taking reasonable steps to determine the accuracy of a letter also helps a newspaper fend off the always unwanted lawsuit.
Give any letter that contains potentially damaging factual statements about a person or company extra attention. Require letter writers to provide name and contact information so that the editor may make reasonable efforts to confirm authenticity and accuracy of allegations as the circumstances may indicate. To address potential concerns, a newspaper may require a letter writer to prove factual allegations, edit out potentially libelous material or reject the letter if the editor’s questions are not resolved.
Paul C. Watler is a partner in TPA sponsor Jackson Walker LLP. Paul has defended Texas newspapers and journalists in libel cases for more than 35 years. He is board certified in civil trial law, recognized by “Best Lawyers in America” in the category of First Amendment law and “Bet-the-Company” litigation, and was named the “Go To” lawyer in Texas for media litigation by Texas Lawyer magazine. You may follow Paul on Twitter @pwatler.