The Texas Supreme Court's Libel-By-Fiction Case
A Key First Amendment Controversy

Last week, the Texas Supreme Court heard oral argument in New Times, Inc. d/b/a Dallas Observer v. Isaacks, an important First Amendment case. The case invokes both the little-known doctrine of "libel by fiction," and the principle that satire is a form of constitutionally protected speech.

The case implicitly raises an issue of great importance: How careful do citizens have to be when they criticize judges' rulings, and district attorney's decisions to prosecute? Must they fear that if their criticism is too barbed, or too subtle, the officials involved will sue and win?

In the Isaacks case, a newspaper published a parody criticizing a judge and prosecutor. The judge and prosecutor subsequently sued -- arguing that the parody could all too easily have been construed as a true, and libelous, statement about them.

Then, in November 11, 1999, the Dallas Observer published an article -- under the headline "Stop the Madness" -- that said that, in another recent case, Isaacks had prosecuted, and Whitten had jailed, a six-year-old girl. Her crime? According to the article, the girl had written a book report on Maurice Sendak's children's picture book Where the Wild Things Are. The article reported that the girl was detained in handcuffs and shackles.

According to the article, the judge remarked, "Any implication of violence in a school situation, even if it was just contained in a first-grader's book report, is reason enough for panic and overreaction." The article also claimed that the judge told the little girl, "It's time for you to grow up, young lady, and it's time for us to stop treating kids like children." And it claimed that the prosecutor said, "We've considered having her certified to stand trial as an adult, but even in Texas there are some limits."

Subsequently, Michael Whitten -- the attorney for Judge Whitten (his wife) and Isaacks -- demanded a retraction on their behalf.

On November 18, the Observer published the following comment on the article: "Here's a clue for our cerebrally-challenged readers who thought the story was real: It wasn't. It was a joke. We made it up. Not even Judge Whitten, we hope, would throw a 6-year-old girl in the slammer for writing a book report. Not yet, anyway."

Unsurprisingly, Whitten did not deem this to be the sincere retraction he had sought. Accordingly, on November 30, he sued the Observer for libel on behalf of his wife and Isaacks. And, to the surprise of many First Amendment advocates, he prevailed in both the trial court and the court of appeals. Now, as noted above, the Texas Supreme Court will hear the case.

First, fiction arguably does not make a "statement" in the sense that nonfiction does. A "statement" makes an assertion about the real world, whereas fiction describes a different world that does not really exist. Second, and similarly, fiction arguably is not "of and concerning" the plaintiff in the way that fiction is because it doesn't refer to the real world; thus, it cannot refer to actual people such as the plaintiff.

Yet, despite these two impediments plaintiffs have at times claimed that a fictitious article is also libelous -- though they have done so only very rarely, and with little success. These cases have often turned on how closely the fictional character actually resembles the real person who claims to have been libeled.

Sharing the same name, for example, can be at least some evidence that the real and fictional characters are the same person. And in the Whitten/Isaacks case, the name of the "Judge Whitten character" in the fictitious Observer article is indeed the same as the name of the real Judge Whitten. However, in my view, use of the same name, alone, cannot prove that a fictitious article is making true statements about the real world -- statements that can give rise to a libel case.

Even given a common name, other significant distinctions between the real-world person and the character of the same name can sometimes put the reader on notice that we are in the realm of fiction. After all, if a character who is a green-skinned alien from Mars happens to be called George W. Bush, no one would mistake him for the real President

In the Isaacks case, however, it seems that the plaintiffs are arguing both that the use of Whitten's and Isaacks's real names is a point in their favor, and that nothing else in the article would have alerted readers that it was fiction. To maintain this position, of course, the plaintiffs must claim that readers could actually have believed that the real-world prosecutor and judge actually shackled and sentenced a six-year-old girl for a book report on a beloved children's book.

Why would readers believe that? Unfortunately for the plaintiffs, there is only one compelling reason: Because the judge and prosecutor's decision to send a 13-year-old to jail for a Halloween essay in the "real world" was so outlandish, it showed they were capable of virtually anything -- no matter how young the defendant, how innocuous the essay, or how punitive the sanction.

To win, then, the plaintiffs must argue, in effect, that readers held a very low opinion of them before the article was published. After all, if they hadn't, they would not have believed the judge and prosecutor would stoop to the level of shackling a first-grader.

But will having to make that argument hurt the plaintiffs in their case? You bet it will. Damages in a libel suit are damages to reputation. These damages are measured by how much the libelous statements lower the plaintiff's reputation. If the reputation's already at rock bottom, then the damages won't be very high.

That's because the plaintiffs' best argument is that readers would have a hard time figuring out that the article was a parody -- as opposed to a nonfiction news report. Yet parody and satire are allowed to cut very close to the original -- here, the judge's ruling -- and still be protected by the First Amendment. Put another way, even subtle parody and satire are forms of free speech.

Arguably, the article parodied the judge's prior ruling in the Beamon case, in which she jailed the thirteen-year-old boy. Usually, when we think of parody, we think of a book parodying another book. (For instance, as I discussed in an earlier column, the book "The Wind Done Gone" parodied "Gone with the Wind.") But in theory, any set of words (or pictures) can be the subject of a parody -- even a judicial ruling.

That is especially significant because the Supreme Court -- in Campbell v. Acuff-Rose Music -- has emphasized how strong the First Amendment protection for parody is, and how close a parody can flirt with copying what it parodies.

In his powerful opinion in that case, Justice Souter wrote, "[p]arody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to 'conjure up' at least enough of that original to make the object of its critical wit recognizable."

Souter made this comment, on behalf of the Court, in the copyright context -- holding that a parody's copying of the original can be "fair use." But it is also applicable in the libel context -- for it recognizes that parody by its nature somewhat resembles the original. Thus, to the extent the Observer article, in parodying Judge Whitten's prior ruling, also resembled it -- and thus could have been mistaken for a similar ruling -- it arguably did so simply because that is the nature of parody.

The nature of satire is similar. Jonathan Swift's classic satire "A Modest Proposal" -- which uses satire to protest British treatment of the Irish -- could not have been as effective, had it not had a certain ring of plausibility. It is still taught to high school students as an example of satire precisely because it can be -- and every year it is taught, it inevitably is -- confused by some with a nonfiction essay.

"A Modest Proposal" shows that satire can be protected as free speech even if it can be confused with truth -- and thus suggests that basing a libel-by-fiction claim on a satire (or, similarly, a parody) ought to be extremely difficult.

It's important to note that, here, the judge and prosecutor were not criticized personally: The criticism made by the Observer parody went to the heart of how well or how poorly they perform their jobs. No one mocked the prosecutor's accent, or the judge's hairdo. Instead, the Observer raised a dead serious topic: Juvenile criminal sentencing and jail time. To criticize a prosecutor's decision to prosecute, and a judge's to sentence, is in effect to criticize the government. And the freedom to do so is at the very heart of the First Amendment's protections.

Thus, we should think carefully about what legal rules we apply when public officials bring a libel suit based on an article that critiques the way they perform their public duties. And, I believe, we should choose rules that make such a suit very difficult to win -- for that is the only way that criticism of the government will continue to be easy to voice in America. Speech under the threat of suit is not free.

Also, there are already two key Supreme Court precedents that the Observer can invoke in this case. But unfortunately, they may not provide as much protection as they were designed to.

Specifically, the crucial First Amendment precedent of New York Times Co. v. Sullivan stands for the proposition that in order for criticism of public officials to be the basis for a libel case, it must be proven to have been made with "actual malice." And another important Supreme Court decision, St. Amant v. Thompson, clearly defines "actual malice" as subjective knowledge that the allegedly libelous statement is probably false.

These precedents provide a great deal of protection in garden-variety public-figure libel cases. But this is not a garden-variety case -- and here, these decisions may not provide much help. After all, in its comment to readers, the Observer has already admitted that it knew that what it wrote was definitely false, when it published it. That sounds a lot like subjective knowledge of probable falsity to me. Indeed, it's more: It's subjective knowledge of certain falsity.

I believe the Observer should still win its case, but if I am wrong, it may be worth reexamining how these classic libel cases apply in the libel-by-fiction context. It shouldn't be the case that a parody that a few people misread as being true, automatically giving rises to liability simply because it was intended as fictitious. Especially in the case of a political parody like this one, that rule would be a tragedy.

But at the same time, the Observer has been foolish. Its note about the piece insulted its own readers, calling those who might have misread it "cerebrally challenged." The note also was contemptuous toward the judge and prosecutor, and failed to take into account that the parody (even if First Amendment protected) was doubtless hurtful to them.

How could the paper not have anticipated that its note would be more likely to prompt a suit, than to preempt one? It had insulted a judge and a prosecutor. It probably knew the judge was married to a lawyer, and thus had access to a free attorney.

A more respectful note from the paper might have been able to preempt this lawsuit, which is costly not only for the Observer, but also for the judicial system. It's one thing to stand one's First Amendment ground -- as the Observer did, and absolutely should have done -- and another to taunt a judge and prosecutor into a lawsuit. Freedom is not inconsistent with decency.