Texas court to rule: Can fiction be libel?

Shortly after a Texas county judge had 13-year-old Christopher Beamon jailed for five days for writing a Halloween essay about the shooting of a teacher, the Dallas Observer parodied the news item with a fictional account of its own.

In a satirical piece, the same judge, Darlene Whitten, was portrayed jailing a 6-year-old girl for writing a book report on Maurice Sendak's children's classic "Where The Wild Things Are," said to contain "cannibalism, fanaticism, and disorderly conduct."

"We just thought the whole notion of jailing a student for doing his 'scary story' homework assignment was absurd, and thought satire was a good way to make our point," says Patrick Williams, the Observer's managing editor.

The piece, which was published in November, 1999, included made-up quotations from a variety of public figures, including county district attorney Bruce Isaacks and then-Governor George W. Bush.

But given Judge Whitten's actual detention of a 13-year-old two weeks earlier, the satire came close enough to reality to fool some readers.

The University of North Texas student newspaper reported it as news, as did a talk-show host at Dallas-Fort Worth radio station KRLD, and the resulting fallout has culminated in a case scheduled to be argued before the Texas state Supreme Court later this week.

At the heart of the case is the question of whether satire, a form of political speech defended as a First Amendment right, can be classified as libel if readers think it is the truth.

Both sides agree the stakes are high. If the Observer wins, "It's going be really easy to do a hatchet job on someone by calling it satire," says Michael Whitten, the attorney for Mr. Isaacks and his wife, Darlene Whitten. "No individual will be able to defend himself, or have any legal recourse."

But major media groups including the Association of American Publishers, the Motion Picture Association of America, and the Cartoon Network have filed a brief supporting the newspaper's case.

"An adverse decision at the Texas Supreme Court would have a chilling effect on the use of satire in the media," says James Hemphill, lead attorney for the Observer. "Even the specter of having to go to trial and incur the expense of defending political speech is enough to chill that speech."

When the Observer first ran its piece, Isaacks and Whitten were deluged by angry letters and even calls for their resignation. The two officials sued the paper for libel.

Both the trial court and the Texas Court of Appeals agreed with Isaacks' and Whitten's view that satire is in the eye of the beholder. "Satire is not protected under the First Amendment if it fails to make clear to its readers that it is not conveying actual facts," the appeals court wrote.

New Times, the Observer's parent company, appealed that ruling, and the Texas Supreme Court will hear the case on December 3.

Since 1980, the vast majority of libel cases have been dismissed before going to trial, according to the Media Law Resource Center.

Yet plaintiffs have won the majority of the libel cases that did make it to trial over the past two decades.

"Juries in Texas are frequently willing to hand big libel judgments down, particularly against big news organizations," says Jane Kirtley, professor of media ethics and law at the University of Minnesota.

Those who defend the Observer point out that the satire contained a number of unmistakably ridiculous statements. It describes Judge Whitten telling the fictional six-year-old defendant - dressed in a Pokémon T-shirt, handcuffs, and ankle shackles - "...it's time for us to stop treating kids like children."

Satire is a constitutionally protected form of political speech. "Under a lot of Supreme Court precedents, it's clear that people who hold public office have to be prepared to be lampooned, to be ridiculed," says Ms. Kirtley.

Public figures wishing to win damages for libel normally face the heavy burden of proving that defendants acted with reckless disregard for the truth.

The issues grow more difficult, however, where satire-by definition fictional, or false-is involved.

"The test isn't whether everybody got the joke," says Steve Suskin, attorney for New Times, a chain of 11 alternative weeklies. "It has to be, 'Was there an intention to pass fiction off as truth?'"

"It's all about context," argues Mr. Whitten. "The Observer is not a humor journal, they are a hard news investigative type publication. If this appeared in the Onion [the satirical newspaper], anyone would know it's not true." But the Observer has a different kind of reputation, he insists.

Mr. Williams, however, remains defiant. "Parody and satire as a form of political commentary have a long and noble and valuable tradition," he says. "We're going to continue that wherever we think appropriate."