FOR IMMEDIATE RELEASE
September 10, 2004

Contact: Judith Platt
Ph: 202-220-4551
Email: jplatt@publishers.org

PUBLISHERS APPLAUD FIRST AMENDMENT VICTORY IN TEXAS

The U.S. publishing industry is celebrating an important First Amendment victory in Texas involving the right to satirize public officials without fear of defamation liability. In a unanimous landmark ruling that strengthens free speech protections in the state, the Texas Supreme Court has dismissed a libel suit brought by two public officials against the Dallas Observer, an alternative weekly newspaper, over the publication of a fictional satire. The Association of American Publishers (AAP) led a broad coalition of media and First Amendment groups in a friend-of-the court brief urging the court to protect the constitutional right to use "comic exaggeration to draw attention to...misuse of authority."

The case, New Times, Inc. v. Isaacks et al, grew out of the publication of a fictitious article satirizing the actions of local officials who jailed a 13-year old student for writing a school-assigned Halloween essay. Six months after the shootings at Columbine, as a way of enforcing a school violence "zero-tolerance" policy, a 7th grader in Denton County, Texas was jailed for five days for writing a homework-related essay in which he discussed the shooting of two students and a teacher. In the wake of the highly publicized incident, the Dallas Observer published a satiric "news" article entitled "Stop the Madness," reporting that a 6-year old girl had been arrested in her first grade class for writing a book report that contained "cannibalism, fanaticism, and disorderly conduct," based on Where the Wild Things Are. The mock news article contained outrageous fictional quotes from several real people, including then-Governor George W. Bush, a representative of the ACLU, and the plaintiffs, county district attorney Bruce Isaacks and juvenile court judge Darlene Whitten. The piece drew criticism from some members of the public who apparently believed it to be a true news story, and Isaacks and Whitten sued for defamation. Both the trial court and the Texas Court of Appeals refused to throw the case out, finding there to be issues for the jury as to whether a "reasonable person" would believe the story to be true and whether the defendants acted with "actual malice" in publishing it.

In its unanimous ruling, the Texas Supreme Court rejected the lower court's conclusion that the fact that some readers were misled into believing the story to be true undermined the newspaper's claim that the piece was meant to be understood as satire. The Supreme Court held that "...the question is not whether some actual readers were misled, as they inevitably will be, but whether the hypothetical reasonable reader could be....This is not the same as asking whether all readers actually understood the satire or 'got the joke'." The Texas Supreme Court also rejected the lower court finding that the newspaper's admitted intent to ridicule Whitten and Isaacks could be construed as evidence of actual malice, ruling that "actual malice concerns the defendant's attitude toward the truth, not toward the plaintiff."

The Texas Supreme Court ruling reflects many of the arguments put forward in the amicus brief, in which AAP was joined by 15 groups including the Freedom to Read Foundation, ABFFE, PEN American Center and the Motion Picture Association of America. That brief concluded that "...satire is the type of speech on matters of public concern the protection of which is the transcendent purpose of the First Amendment." The amicus brief was written by AAP's Freedom to Read counsel R. Bruce Rich and Jonathan Bloom (Weil, Gotshal & Manges).

The Association of American Publishers is the national trade association of the U.S. book publishing industry. AAP's members include most of the major commercial book publishers in the United States, as well as smaller and non-profit publishers, university presses, and scholarly societies. The Association represents and industry whose very existence depends upon the free exercise of rights guaranteed by the First Amendment.

White Paper: What Consumers Want in Digital Rights Management