Law & the Media in Texas — Libel Defenses



The best way to explain what constitutes a successful libel action is to say that a successful action results from the publication of a defamatory statement in the absence of a defense or defenses.

Defamatory statements are the grist of the news mill. Many, many reports are of a negative or defamatory nature. But, in almost every instance the reports are published knowing that a defense exists. It’s when no defense exists that problems arise.

Publishing something knowing that it is false constitutes malice.

Another way of looking at this is to consider whether justification exists for publishing the defamatory statements. The defenses that are available may provide that justification.

Among the defenses are:

1.Privilege. Privilege is established by statute. In Texas privilege is extended to the reporting of judicial, legislative or other official proceedings, including meetings. But the privilege is conditional. The account must be fair, true and impartial.

Obviously the news media have a responsibility to ascertain the truth of any statement before publication, even if the statement is presented in a privileged context.

Privilege has one major condition: that published statements be fair, true and impartial. As a result, reporters may be obligated to give a person the opportunity to respond or otherwise clarify the situation even when accusations are in a privileged situation.

Defense exists when a report is gathered in a privileged situation and is handled in a way that is fair, true and impartial.

2.Truth. The Texas statute says: “The truth of the statement in the publication on which an action for libel is based is a defense to the action.”

Of course, truth may be difficult to prove. Inexperienced journalists often believe that if they can prove someone said what is in question that is truth. What was said must be proved as true to qualify as truth.

For instance, suppose a person in an interview refers to someone else as a thief. Proving that the statement was made is not sufficient as a defense. What was said must be proved.

Truth does not mean the literal accuracy of the published account, but rather the substantial accuracy of the account. For example, suppose an article said that a named suspect was wanted for robbery in Odessa when in fact he or she was wanted for robbery in Midland. The point is, the suspect was wanted for robbery. A mistake like this won’t hurt.

And keep in mind that just because something is true that may not be justification for using it. The statement must be newsworthy and must be in the public interest. Publication of a defamation without justification may be indefensible even though it is true.

3.Reply and Consent. A person may not successfully sue for libel based on a communication to which he or she has consented.

The basic example of consent is the publication of what someone says about himself or herself. If the person says something that is self-incriminating and does so knowing the statement or statements might be published, he or she consents.

The news media use reply as a form of consent to build a defense in certain instances. Courts have held the right to reply as analogous to the right of self-defense.

If a controversy is raging between two individuals, the media may obtain replies to statements made and thus meet the defense of reply while obtaining tacit consent.

Examples of the right to reply include the reporting of unprivileged civil petitions. The defendant may be informed of accusations and given the opportunity of replying.

In criminal law a person who is attacked has the right not only to block the attack but also to use as much force as necessary to repel the attacker. The same holds in civil law. However, the media must be careful not to allow the reply to go beyond the bounds of the attack.

The reply must be without malice.

4.Fair Comment or Criticism. This defense relates to expressions of opinion as distinguished from statements of facts.

The matter on which the comment or criticism is made must be of public interest and/or concern and must be based upon facts truly stated.

The right of comment and criticism is the right to express opinions on and draw inferences from facts. The comment or criticism must be based on facts that are true and can be proved true.

Fair comment and criticism relates to expressions of opinion wherever they may occur, but the defense is especially useful in editorials, reviews, letters to the editor, sports reporting and advertisements.

In reviews, the expertise of the reviewer must be taken into consideration. A cub reporter who knows little about drama does not have the same right to criticize as an experienced and knowledgeable drama critic.

A 1969 decision by the Texas Supreme Court extended the defense of fair comment and criticism to letters to the editors under certain conditions. The main condition is that newspapers not knowingly publish indefensible statements in the letters.

5.Public Official or Public Figure. The U.S. Supreme Court established a defense by which persons who are public officials or public figures may be subjected to defamation without recourse unless malice is present.

Malice was defined by the Supreme Court as knowledge that the publication was false or reckless disregard of whether is was false or not.

The defense gives the news media the freedom to publish defamatory material against a candidate for public office, the holder of a public office or anyone who is a public figure by virtue of his or her position or stature.

The limitation of malice requires mainly that publication of false material be in good faith and not by design. Also, the statements must apply to the public actions of the figure or official and not to private actions for which there is no justification.

6.Statute Of Limitations. In Texas this is one year. That is, the right to institute action lapses one year and a day after publication.

Any republication of the libelous matter sets a new time limit. And the possibility exists that a matter defensible at the time of original publication may be without defense on republication.

A Structure of Defense

Each of the foregoing defenses might be considered complete in the sense that if the arguments behind them prevail the defendant in the libel action must emerge without judgment against him or her.

Rarely, however, does any one defense provide that completeness. The combination of defenses creates a structure of defense necessary to the successful defense in a libel action.

Partial defenses also help in building a structure of defense when combined with other defenses.

Partial defenses have to do with the reputation of the plaintiff, the circumstances under which the defamation was published and other mitigating factors such as communication with the plaintiff over the matter.


One partial defense is the correction. A basic question concerns whether to run a correction or not. A good rule to follow is: Run a correction only on advice of a lawyer.

A correction might be tantamount to admitting that what was published was indefensible and therefore libelous.

A correction improperly worded could have the effect of bolstering the plaintiff’s case. For instance, a correction should not be called a retraction since that word carries an obvious connotation of wrongdoing.

How people are handled who believe they have been damaged as a result of publication is important. Complaints should be careful about dismissing such persons. This might be used against a defendant publisher.

News organizations should have a procedure worked out for handling such complaints. The way the original complaint is handled can be a mitigating factor for the defendant at the time of trial.

At no time, however, should an employee agree with the complainant that a published defamation is grounds for a libel action—that is, that it is libelous.

Two situations in which corrections should be offered are when the article in question is factually incorrect and in the absence of defense.

Actual Malice

The term actual malice is used to differentiate from legal malice. Legal malice is the doctrine that the defendant is responsible for his acts. Actual malice is what costs money in libel suits.

Defenses hold only to the point that actual malice is not present. Hence, the danger in malice is that it destroys defense.

The kind of malice we’re concerned with here does not mean a feeling of ill will on the part of the publisher or his representatives toward the individual who claims to have been damaged.

The United States Supreme Court provided the definition for malice in New York Times v. Sullivan with these words: “knowledge that it (the published statement) was false or with reckless disregard of whether it was false or not.” The court said the plaintiff must be able to prove malice existed with “convincing clarity.”


The two general classes of damages are:

1.Compensatory or general damages, also known as actual damages, designed to offset the actual injury to the victim of the libel. The words actual injury are misleading, however. Actual injury includes financial loss, damage to personal reputation and metal anguish and suffering. The Supreme Court has indicated that compensatory awards must be supported by competent evidence “although there need be no evidence which assigns an actual dollar value to the injury.”

2.Punitive or exemplary damages, also known as vindictive damages, designed as punishment. In libel actions, actual malice must be proved by the plaintiff before punitive awards can be justified. The Supreme Court has indicated that punitive awards can be made “only on clear a and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.”