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Brady Vs Carter: Court ruling Sugar Land hosts kite festival on defamation, public figure By SESHADRI KUMAR The Court of Appeals for the First District of Texas recently issued a precedentsetting opinion impacting the news media in general, in a defamation lawsuit against a local newspaper. LeaAnne Klentzman and Carter Publications, Inc. d/b/a The West Fort Bend Star, Inc. (“the Star”) filed an appeal complaining that the trial court erred in denying summary judgment relief in a lawsuit filed by Wade Brady, son of Craig Brady, deputy chief in the Fort Bend County Sheriff’s Office. Justices Evelyn Keyes, Elsa Alcala and Jim Taft affirmed the denial of summary judgment by the 240th District Court in Fort Bend County and remanded the case back to the trial court. The appeals court rejected all seven complaints made by the Star against the denial of summary judgment by the district court. The court rejected Star’s plea that Wade Brady should be treated as a “limited-purpose public figure” and hence need not show actual malice on the part of the Star to prove that he was defamed or libeled. Public figures suing a media for defamation must prove that the defendant published the statement with “actual malice.” “Having held that Wade was not a limited-purpose public figure, we reject appellants’ contention that Wade was required to prove actual malice as an essential element of his cause of action,” the court said. From August 2001 through May 2002, the Star published a number of opinion columns that included references to various incidents involving Chief Brady’s sons Wade and Cullen Brady and Chief Brady’s actions relative to such incidents or on behalf of his sons. None of those columns are the subject of the suit underlying this appeal. Among the incidents described in the opinion columns were the ticketing of Wade by sheriff’s deputies for a minorin-possession of alcohol (MIP) charge, and the stop and detention of Cullen and Wade by a Department of Public Safety trooper who had followed them to investigate suspected erratic driving by Cullen.
The opinion columns also described various actions that Chief Brady had allegedly taken on behalf of his sons, including conducting numerous tape-recorded meetings with the deputies who had been present when Wade was ticketed for MIP. Wade was later acquitted of the charge and an expunction order entered. On January 15, 2003, the Star published an article, written by Klentzman entitled, “Deputy Brady’s tape collecting called ‘Roadside Suppression.” This article is the subject of the lawsuit. The article stated that that since November 21, 2002, Chief Brady had been collecting audiotapes from deputies regarding Wade’s 2001 MIP charge; Recalled one of the incidents previously recounted in one of the columns Involving Wade’s report of a stolen cell phone and Chief’s Brady’s pursuit of the man who had Wade’s cell phone; Described testimony from the August 2002 trial of Wade’s MIP charge circumstances leading up to the ticket; Recalled the audio-taped meetings that Chief Brady had held with the deputies; Stated that the personnel of the sheriff’s office dubbed the numerous twilight meetings in various parking lots with the deputies who issued the ticket to “roadside suppression hearings” making jest of a maneuver by defense lawyers to keep evidence out of court; and Described that “in the DPS tape [of the stop] viewed by the Star ... Wade Brady was so unruly and intoxicated that the Trooper had to handcuff him and place him in the backseat of the police car for safety” and described other aspects of the stop based on the Star’s review of the tape. Wade brought the suit against appellants for libel based on statements in the January 15, 2003 article. He alleged that appellants published a writing that injured his reputation by “omitt[ing] material facts and therefore creating a misleading presentation of the factual circumstances regarding [his] trial and the unrelated stop by the DPS trooper.” He asserted that many of the statements in the articles were lies. The statement in the article, “[i]n the DPS videotape
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viewed by the Star and then later obtained through the Freedom of Information Act, Wade Brady was so unruly and intoxicated that the Trooper had to handcuff him and place him in the backseat of police car for safety,” is opinion and, therefore non-actionable under Texas law, the Star argued. The complained-of assertion, which the article asserted was based on the DPS videotape, is a statement of fact, subject to the test of truth or falsity—not a statement of opinion, the court said. Moreover, the determination whether a publication is an actionable statement of fact or a protected expression of opinion depends upon a reasonable person’s perception of the entirety of the publication and not merely on individual statements. The article was presented to the public as a news story, not an editorial or other expression of opinion, the court noted. A person does not become a public figure merely because he is repeatedly “discussed” by a media defendant or because his actions become a matter of controversy as a result of the media defendant’s actions. Even engaging in criminal act does not make a person a limited-purpose public figure, the court said. “We conclude that the appellant did not establish as a matter of law that Wade is a limited-purpose public figure,” the justices said in the opinion. Appellants cited to their own prior columns in the Star where they “grouched and groaned” about Chief Brady, but the mere fact that appellants (and no other press) chose to write and publish opinion columns about Chief Brady is merely evidence of Star’s “concern,” not a “public” discussion of a “real question,” according to the ruling. Appellants argue that the fact that Wade is the son of the Chief Deputy causes him to be “the subject of public scrutiny” and that his various interactions with the law such as being handcuffed a week after the MIP stop by the DPS trooper, his calling of his father when someone stole his cell phone almost two years prior to the MIP stop as cause for “risk of exposure and injury to reputation” and made him a public figure. The fact that Wade represented himself in the MIP trial was also cited as a cause to treat him as a public figure. However, the mere fact that Wade’s father is a public official, and thus, that Wade’s behavior might be more “newsworthy” than a teen whose father was no public official does not mean that any alleged misbehavior would have made Wade a limited purpose public figure, the court said. See PRESS, Page 3
Kites of all shapes and sizes adorned the sky of Sugar Land Memorial Park, University Boulevard, on Saturday, Feb. 6, from 10 a.m. to 4 p.m., as the city celebrated its first ever Cultural Kite Festival. Kite flying is a popular activity and sport in many countries around the world, and became a local hit with an estimated 6,000 people attending the event. Residents of all backgrounds and ages enjoyed the festival aided by pleasant weather and favorable winds. Activities and entertainment included an opening ceremony of kites, a miniature kite museum showcasing the diversified history of kite making, kite flying lessons and competitions and various cultural performances. A kite-making workshop was held where children built their own kites and took them home as memorabilia. Above Sugar Land Mayor James Thompson, formally flies the special kite marking the cultural festival. Photos by RANDY KOZLOVSKY.
Missouri City bans texting while driving By BARBARA FULENWIDER Missouri City council members are the first in Fort Bend County to approve an ordinance banning texting while driving in the city. Council approved the ordinance on first reading at its Feb. 1 meeting. The second reading on Feb. 15 is expected to get the same unanimous council approval. After the ordinance is approved, it will be unlawful for a driver to text while operating a motor vehicle and for a driver to view, send or compose an electronic message or engage with application software on a cell phone in Missouri City. The ordinance becomes effective June 1, 2010, and between now and then there will be a campaign informing citizens to get ready to cease and desist or be ticketed for disobeying the law. When the ordinance was first presented at council’s first meeting of the year it was written to prohibit the use of such devices for any purpose while driving a motor vehicle. Council ob-
jected to not being able to talk on a cell phone so the ordinance they voted on last week does not prohibit telephone conversations while driving. The ordinance also includes some affirmative defenses to prosecution should a person be ticketed. The defenses include dialing numbers or deactivating a phone call, driving an authorized government vehicle that is responding to emergencies, using GPS devices or getting emergency assistance. The proposed ordinance also includes an affirmative defense for drivers who are texting or using an application while stopped in a safe area or standing safely at the side of the road. Missouri City Attorney Caroline Kelley said, “Multiple cities (in Texas) have adopted the same law as Missouri City – West University, Bellaire, Austin. West University prohibits getting, sending and composing electronic messages, which involve texting and emailing while driving. Aus-
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tin prohibits using a wireless communication device for messaging and other applications while driving.” “We tried to get all the types of activities that would entail typing on a wireless communication device and looking at a screen but talking per se on a phone is allowed. Our ordinance covers both reading and typing. If a person receives a text message (e-mail) while driving and looks down to read it, they will have committed an offense according to our ordinance,” Kelley said. Police Chief Joel Fitzgerald said that the federal government recently passed a law prohibiting texting by bus and truck drivers while on the road. The chief was also asked about warning signage. Fitzgerald said, “If we believe someone did it and came from one jurisdiction to another and we have the proper signage up then it’s against the law. We must educate everyone as much as we can before it becomes law.”