# Casso v. Brand

> Texas Supreme Court · May 10, 1989 · 32 Tex. Sup. Ct. J. 366

URL: https://www.frixlaw.com/law-library/cases/9681214

## Case

- **Full name:** Ramiro CASSO, M.D., Petitioner, v. Othal E. BRAND, Respondent
- **Court:** Texas Supreme Court
- **Decided:** May 10, 1989
- **Citations:** 32 Tex. Sup. Ct. J. 366; 776 S.W.2d 551; 16 Media L. Rep. (BNA) 1929; 1989 Tex. LEXIS 39; 1989 WL 47717
- **Precedential status:** Published
- **Opinion:** Concurring in part by Gonzalez
- **Judges:** Spears, Cook, Hightower, Doggett, Gonzalez, Mauzy, Phillips, Ray, Hecht
- **Cited by:** 805 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9681214

## How later opinions describe it (automated extraction)

- stating that the court was “reluctant to afford greater constitutional protection to members of the print and broadcast media than to ordinary citizens” and therefore holding that when a public figure sues a private individual, the plaintiff must prove that the defendant made …
- stating that a summary judgment may be granted on the basis of uncontroverted testimonial evidence of an interested witness if that evidence “is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controv…
- noting that constitutional implications in defamation claims do not alter our summary judgment standards

## Opinion text

GONZALEZ, Justice,
concurring and dissenting.
I am disappointed that the court has chosen to merely pay lip service to first amendment values and has decided not to join the growing number of states that have revised their summary judgment standards to give greater scrutiny to public figure and public official defamation cases. I would not only overrule Bessent v. Times-Herald Printing Co., 709 S.W.2d 635 (Tex.1986) and Beaumont Enterprise *560 & Journal v. Smith, 687 S.W.2d 729 (Tex.1985), but would give vitality to the free speech values embodied in our Texas Constitution by applying a stricter summary judgment standard in these types of defamation cases.
I do not join the court’s opinion for two reasons. First, the court overlooks the fact that the statements in question were made in the heat of a political campaign. Second, because Casso asserted that the common law fair comment privilege protected the criticisms he leveled at Brand, Casso effectively raised the issue that these comments were constitutionally protected opinion. I would reverse the judgment of the court of appeals and hold that the trial court properly granted Casso’s motion for summary judgment.
In early 1981, Brand, the incumbent may- or, was embroiled in an intense campaign for reelection. During the course of the campaign, a police brutality case involving the City of McAllen was being tried in federal district court in Brownsville. This case received extensive publicity because of the release of videotapes during the trial showing beatings of prisoners by McAllen police officers. It is in this context that Casso said that Brand condoned acts of brutality by the McAllen police, charged that Brand ordered the distraction of the tapes, called Brand a “barbarian” and an “ayatollah,” and criticized him for ruling the City with “an iron fist.” Brand filed this suit in July, 1981 and the case essentially laid dormant until the summary judgment hearing in February, 1986.
In his motion for summary judgment, Casso asserted, among other things, that:
(1) the statements in question ... were justified by the occasion and were fair comment and criticism and were in the public interest;
(2) he acted in good faith, without malice; and with good and reasonable cause to believe that the contents of the statements were true.
In support of his motion for summary judgment, Casso presented summary judgment evidence consisting of his affidavit in which he stated that:
(a) he was a medical doctor in the City of McAllen;
(b) the main issue in the campaign was citizens’ complaints of police brutality by members of the McAllen Police Department;
(c) in the police brutality case, Captain Borman, a senior captain on the McAllen Police Department, testified under oath that he was given an order by Brand, through the Chief of Police, to erase the videotapes; and
(d) at no time did he ever act with malice towards Brand and never knowingly made an untrue statement.
A copy of Captain Borman’s testimony was attached to the affidavit. Brand filed a response but he did not present any summary judgment evidence even though he had almost five years to discover evidence controverting Casso’s allegations.
The trial court granted the motion for summary judgment without specifying the ground or grounds on which it relied. The court of appeals, relying on this court’s decisions in Bessent and Beaumont Enterprise held that Casso’s summary judgment proof did not negate actual malice, one of the elements of Brand’s cause of action. Thus, the court of appeals reversed the judgment of the trial court and remanded the cause for trial on the merits. When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140,142 (Tex.App.—Amarillo 1984, writ ref’d n.r.e.). I will now discuss whether any of the grounds asserted by Casso support the summary judgment.
Fact or Opinion
In these types of cases, we need to distinguish between opinions and statements of fact. Derogatory statements of opinion are exempted from libel by the common law and the United States and Texas Constitutions. False statements of fact are *561 not so exempted. To sustain a defamation cause of action, a public official or public figure must prove that the defendant (1) published a false statement of fact; (2) that was defamatory concerning the public official or public figure; and (3) that the statement was made with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 725-26 , 11 L.Ed.2d 686 (1964); Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 941 (Tex.1988). 1
As previously noted, all assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 , 94 S.Ct. 2997, 3006-07 , 41 L.Ed.2d 789 (1974); O’Quinn v. State Bar, 763 S.W.2d 397, 402 (Tex.1988); El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 798 (Tex.App.— El Paso 1986, writ ref’d n.r.e.), cert, denied, 480 U.S. 932 , 107 S.Ct. 1570 , 94 L.Ed.2d 761 (1987).
The core values of the first amendment reflect a “recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.” Hustler Magazine v. Falwell, 485 U.S. 46 , —, 108 S.Ct. 876, 879 , 99 L.Ed.2d 41, 49 (1988).
In Gertz , the Supreme Court stated:
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open debate on public issues.”
Gertz, 418 U.S. at 339-40 , 94 S.Ct. at 3006 -07 (quoting New York Times, 376 U.S. at 270 , 84 S.Ct. at 721 ). By this statement, Gertz elevated to constitutional principle the distinction between fact and opinion. Oilman v. Evans, 750 F.2d 970, 975 (D.C. Cir.1984). Thus, whether the publication is a protected expression of opinion or an actionable statement of fact is a question of law for the court. The Oilman court devised a four factor test to facilitate this distinction. Id. at 979 ; Kerr, 706 S.W.2d at 798 . These factors will be discussed and applied later in this opinion.
Casso did not specifically argue before the trial court that the statements in question were mere statements of opinion and therefore not actionable. He did, however, assert that the statements came within the purview of the common law fair comment privilege which is applicable only to opinions. Thus, in effect, Casso raised and preserved the argument that the statements in question were mere statements of opinion.
Fair Comment
Under common law, there exists a qualified privilege (defense) for opinions in the form of fair comment. The privilege is qualified because after it is established by the defendant, a showing by the plaintiff of actual malice destroys the privilege. Criticism regarding the official acts or conduct of public officials and candidates for public office, or their qualifications for office, is privileged and not libelous. See Rawlins v. McKee, 327 S.W.2d 633, 637 (Tex.Civ.App.—Texarkana 1959, writ ref d n.r.e.). Whatever pertains to the qualification of a candidate for public office is certainly a legitimate subject for discussion and comment in a political campaign.
The fair comment privilege has been codified in part with respect to the press in our libel statutes. See Tex.Civ.Prac. & Rem.Code Ann. § 73.002 (Vernon 1986). However, this codification does not affect the existence of common law defenses to libel. Tex.Civ.Prac. & Rem.Code Ann. § 73.006 (Vernon 1986). Thus, after Gertz , the common law fair comment privilege continues to have vitality, at least insofar as the assertion of it preserves the point that the alleged defamatory statements are *562 constitutionally protected expressions of opinion. See Prosser and Keeton on the Law of Torts, § 115.5 (W. Keeton 5th ed. 1984).
The better practice is for litigants to specifically assert that a particular statement is not actionable because it is a statement of opinion, if this is their defense. Nevertheless, because the fair comment privilege protects only statements of opinion, I conclude that the issue of whether the word “barbarian” was an opinion was preserved for our review, as were the statements that Brand ruled McAllen like an “ayatollah,” that his leadership style was to rule the City with an “iron fist,” and that Brand tried to “make a deal which would have shut ... hospital doors to [the] ... poor_” 2 I would apply the four Oilman factors previously mentioned to determine whether these statements were of fact or of opinion.
The Oilman Analysis
The first factor requires a court to analyze the common usage or meaning of the allegedly defamatory words themselves to determine whether the statements have precise meaning giving rise to clear factual implications. Oilman, 750 F.2d at 979-80 . “Loosely definable” or “variously interpretable” statements cannot in most contexts support an action for defamation. Id. at 980 . The second Oilman factor requires a court to consider the degree to which the statements are verifiable. Id. at 981 . A reader cannot rationally view an unverifiable statement as conveying actual facts. The third Oilman factor is to consider the linguistic context of the allegedly defamatory statements. Id. at 982 . The distinction between fact and opinion can be made only in context. The fourth Oilman factor directs a court to examine the social context in which the statements occur. Courts should fully take into account the different social conventions or customs in different types of writing (or settings). Id. at 984 .
Under Oilman , the statements that Brand was a “barbarian,” ruled McAllen like an “ayatollah,” and that his administration was an “iron fist” are unmistakably “loosely definable” and “variously interpretable” statements of opinion made in the heat of a political campaign. The statements are obviously unverifiable. Thus, as a matter of law, these are statements of opinion.
Finally, I turn to the more difficult question of whether the following statement published in The Nation magazine is actionable:
[According to Casso, “Mr. Brand tried to make a deal which would have shut the hospital doors to our city’s poor, without even notifying the citizens of the plan. Apparently, he hadn’t bothered to look at the City charter.”
Under Oilman , this statement is closer to fact than opinion. It was published after the campaign had ended and is considerably more verifiable than the previously mentioned statements. Nevertheless, as will be discussed in the next section, summary judgment is still proper because Brand failed to satisfy his burden of proof on the issue of malice under either the current standard or the procedure that I propose.
Actual Malice
Casso argues that even if he failed to prove that the statements were true, summary judgment should have been sustained because Brand failed to prove by clear and convincing evidence that malice existed. The Supreme Court has declared that the first amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’....” New York Times, 376 U.S. at 279-80 , 84 S.Ct. at 725-26 , quoted in Briggs, 759 S.W.2d at 941 . The New York Times standard was later extended to libel suits brought by public figures as well. Curtis Publishing Co. v. *563 Butts, 388 U.S. 130, 164 , 87 S.Ct. 1975, 1996 , 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring). In the present case, it is undisputed that Brand is a public official. Thus, as an element of his cause of action, Brand had the burden at trial of proving by clear and convincing evidence that Casso acted with actual malice. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 , 511 n. 30, 104 S.Ct. 1949 , 1965 n. 30, 80 L.Ed.2d 502 (1984); Gertz, 418 U.S. at 342 , 94 S.Ct. at 3008 . Actual malice is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true. Gertz, 418 U.S. at 328 , 94 S.Ct. at 3001 . “Reckless disregard” is defined as a high degree of awareness of probable falsity, for proof of which the plaintiff must present “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731 , 88 S.Ct. 1323, 1325 , 20 L.Ed.2d 262 (1968). An error in judgment is not enough. See Time, Inc. v. Pape, 401 U.S. 279, 290 , 91 S.Ct. 633, 640 , 28 L.Ed.2d 45 (1971); Briggs, 759 S.W.2d at 941 .
Thus, the question presented in this case is: must a public official, at the summary judgment stage, prove by clear and convincing evidence that the defendant made false statements or entertained serious doubts as to the truth of the statements in question? Stated another way, is the constitutional requirement that a public official prove the existence of actual malice by clear and convincing evidence in a defamation action applicable only at trial, or is this a relevant and necessary inquiry at the summary judgment stage as well? The Supreme Court arguably answered this question when it said:
When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial court must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quality to allow a rational fact finder to find actual malice by clear and convincing evidence.... In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages.
Anderson v. Liberty Lobby, 477 U.S. 242, 254-55 , 106 S.Ct. 2505, 2513 , 91 L.Ed.2d 202 (1986) (emphasis added). However, there exists a difference of opinion as to whether Liberty Lobby was based on first amendment substantive law or merely on federal procedure. See Briggs, 759 S.W.2d at 943-44 (Gonzalez, J., concurring).
In the present case, the court of appeals did not discuss or consider Liberty Lobby . Instead, the court of appeals applied traditional Texas summary judgment standards formulated prior to Liberty Lobby which are tilted in favor of defamation plaintiffs and place the burden on the defendants at summary judgment to show absence of actual malice. Beaumont Enterprise, 687 S.W.2d at 730 ; See also Bessent, 709 S.W.2d at 636 .
In Beaumont Enterprise and Bessent , we restricted the defendant’s ability to satisfy this burden by holding that affidavits made to establish absence of malice are not evidence that will support a summary judgment. Thus, in Texas, obtaining a summary judgment on the basis of no actual malice has been next to impossible. While I join in the court’s decision to overrule these two cases, I do not think the court goes far enough. I am concerned that today’s decision may still permit libel plaintiffs to go forward with their case even if they do not have clear and convincing evidence of actual malice. If this is so, defendants may still have to put up not only with the costs but also the burdens of protracted litigation in order to vindicate constitutionally guaranteed rights. Our current system fails them because it does not provide an effective system to filter out meritless cases without a full blown trial. The threat of being put to the defense of a lawsuit, however frivolous, in order to vin *564 dicate rights of free speech has a chilling effect on “the principle that debate on public issues ... be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Moffatt v. Brown, 751 P.2d 939, 946 (Alaska 1988) (quoting New York Times, 376 U.S. at 270 , 84 S.Ct. at 721 ).
Therefore, to lessen self-censorship pressure, I would view summary judgment evidence with no interpretive bias in favor of either side and allocate the burden of proof and persuasion so as to minimize the self-censorship effects of defamation litigation. This is not a novel or a new idea. A growing number of our sister states have adopted a special summary judgment procedure in defamation suits brought by public figures or public officials. See, e.g., Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 485-91 , 724 P.2d 562, 571-76 (1986); Reader’s Digest Ass’n v. Superior Court, 37 Cal.3d 244, 251-52, 208 Cal.Rptr. 137, 140-41 , 690 P.2d 610, 613-14 (1984); Planned Protective Serv., Inc. v. Gorton, 200 Cal.App.3d 1, 8 , 245 Cal.Rptr. 790, 793 (1988); Miller v. Nestande, 192 Cal. App.3d 191,196-98 , 237 Cal.Rptr. 359, 361-62 (1987); DiLeo v. Koltnow, 200 Colo. 119, 125 , 613 P.2d 318, 323 (1980); Reed v. Northwestern Publishing Co., 124 Ill.2d 495, 512 , 530 N.E.2d 474, 481-82 (1988); Bussie v. Lowenthal, 535 So.2d 378 , 380 n. 2 (La.1988); Hudak v. Fox, 215 NJ.Super. 233, 238-39, 521 A.2d 889, 891-92 (1987); Scacchetti v. Gannett Co., 123 A.D.2d 497, 498 , 507 N.Y.S.2d 337, 339 (1986); Varanese v. Gall, 35 Ohio St.3d 78, 81 , 518 N.E.2d 1177, 1181 , cert, denied, — U.S. —, 108 S.Ct. 2849 , 101 L.Ed.2d 886 (1988); Margóles v. Hubbart, 111 Wash.2d 195, 200 , 760 P.2d 324, 326-27 (1988); Herron v. Tribune Publishing Co., 108 Wash.2d 162, 170 , 736 P.2d 249, 255-56 (1987); Long v. Egnor, 346 S.E.2d 778, 785-86 (W.Va.1986); Adams v. Frontier Broadcasting Co., 555 P.2d 556, 562 (Wyo. 1976). This heightened burden to prove actual malice by clear and convincing evidence at the summary judgment stage, while consistent with the spirit of Liberty Lobby , is based on separate and independent state grounds.
Texas Constitution
Article I, section 8 of the Texas Constitution provides:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
The United States Bill of Rights states: “Congress shall make no law ... abridging the freedom of speech or of the press....” U.S. Const, amend. I. Arguably, the rights of free speech and press guaranteed by our Texas Constitution are more extensive than those guaranteed by the United States Constitution. See O’Quinn, 763 S.W.2d at 402 ; see also Briggs, 759 S.W.2d at 944 . (Gonzalez, J., concurring). The Texas Constitution also provides that:
All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of the law.
Tex. Const. art. I, § 13.
Thus, we have competing values in the Texas Constitution: freedom of speech on the one hand; the intent to protect one’s reputation on the other. Given our state commitment to the principle that debate on public issues be uninhibited, robust and wide-open, the free speech values embodied in the Texas Constitution have the strongest claim for special procedural safeguards and mandate that we apply a stricter standard in public official or public figure defamation actions. See Ex Parte Tucker, 110 Tex. 335 , 220 S.W. 75, 76 (1920).
Thus, I would modify our current procedure in these types of cases. I would continue the current practice and place the initial burden at summary judgment on the defendant to negate the presence of actual malice. This burden can now be satisfied by the defendant’s own affidavit, as well as other forms of summary judgment evidence authorized in Texas. See Tex.R.Civ.P. 166a. Once the defendant has met *565 this initial burden, I would modify our current practice and hold that the burden of production and persuasion shifts to the plaintiff to show the existence of actual malice by clear and convincing evidence that can ultimately be introduced to the trier of fact. See Hittner & Liberato, Summary Judgments in Texas, 20 St. Mary’s L.J. 243, 304 (1989). See generally Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107 (Tex.1984). If the plaintiff fails to meet this burden after being given an ample opportunity to conduct discovery, the trial court should sustain the defendant’s motion for summary judgment.
In the present case, Casso submitted an affidavit with his motion for summary judgment which stated, in relevant part, “At no time did I ever act with malice towards ... Brand, and never did I make an untrue statement knowingly.” Thus, Casso met his initial burden of negating the presence of actual malice. The burden then shifted to Brand to show the existence of malice by clear and convincing evidence. This he failed to do.
In Briggs , a public figure plaintiff filed a libel suit which remained dormant for approximately two and one-half years. Briggs, 759 S.W.2d at 942 . All discovery in the case was conducted by the defendants. The plaintiff had ample opportunity to conduct discovery, but apparently chose not to do so. Therefore, this court held that summary judgment in favor of the defendants was proper.
Similarly, Brand had ample opportunity (almost five years) to conduct his own discovery and offer controverting evidence, if any, but chose not to do so. Because Brand failed to rebut Casso’s allegation of lack of malice in an attempt to raise a fact issue, we have the identical situation presented here as in Briggs and we should reach the same result.
Under either Briggs or the stricter summary judgment standard I propose, the trial court was correct in rendering summary judgment in favor of Casso.
For these reasons, I dissent.
. It is odd that the plurality does not cite Briggs , this court’s most recent writing in this area of law.
. See Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Tex.L.Rev. 199, 201 & n. 17 (1976). See also Restatement (Second) of Torts, § 566, comment a (1977).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681214. Public record. Not legal advice.