Recently passed legislation in Texas has supporters of the First Amendment nodding their heads in approval. This important piece of legislation places limitations on filing lawsuits based on libel and on the damages that can be recovered in those cases. Historically, an individual can bring a legal action for defamation, which is generally defined as “a communication of a false statement that harms the reputation of an individual, business . . . .” In Texas specifically, to maintain a defamation cause of action, the plaintiff must prove first that the defendant published a false statement. That statement must have been defamatory and concerned the plaintiff. Finally, it must be shown that the statement was made with actual malice or negligence. The state of mind depends on about whom the statement was being made. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Many jurisdictions, including Texas and Massachusetts, make a distinction between written (libel) and spoken (slander) defamation.
Limitations on defamation claims create added protection for Free Speech rights.
Often, state common laws regarding defamation come into conflict with the First Amendment and freedom of speech principles. This is especially true with publishers who fear lawsuits, which can lead to censorship and chilling effects. However, Texas has just recently passed the Defamation Mitigation Act, also known as the “Retraction Law,” which became effective on June 14, 2013. The statute was codified at Texas Civil Practice & Remedies Code, §§73.051-.062. This statute encourages those who claim to be victims of defamation to timely notify the publisher of the false statement and allow them the opportunity to correct the error or issue a retraction. This notice and opportunity must be given before a lawsuit is filed. If not, the defendant is allowed 60 days to correct the error before the lawsuit can proceed. If an alleged victim initiates or proceeds with the lawsuit after a retraction is run, the damages will be mitigated.
This new law provides added First Amendment protections to publishers and brings fairness to the table. The free speech clause of the First Amendment language states as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As Justice William Brennan wrote in 1964, the First Amendment provides that “debate on public issues … [should be] … uninhibited, robust, and wide-open.” As one proponent of the law has recognized, this new law will “promote accuracy, truth and fairness in publication.” Publishers and individuals will now be expected to work together to resolve errors in publications, in an effort to keep these issues out of court when possible.
Another added benefit is the explicit inclusion of online media.
As one article recognizes, the new law “applies to all publications, including writing, broadcasts, oral communications, electronic communications, or other forms of transmitting information.” Although approximately 30 states already have retraction statutes on the books, including Massachusetts, those states do not currently protect online speech. However, in Massachusetts for example, the statute’s generalized phrase “publication of libel” would suggest that the retraction statute covers online publication.