Warner Bros. Entertainment, Inc. Warner Bros. Technical Operations, Inc. D/B/A Warner Bros. Advanced Digital Services Tmz Productions, Inc. Ehm Production, Inc. D/B/A Tmz tmz.com And Elizabeth McKernan v. Robert Jones
Texas Supreme Court
Warner Bros. Entertainment, Inc. Warner Bros. Technical Operations, Inc. D/B/A Warner Bros. Advanced Digital Services Tmz Productions, Inc. Ehm Production, Inc. D/B/A Tmz tmz.com And Elizabeth McKernan v. Robert Jones
Opinion
IN THE SUPREME COURT OF TEXAS
444444444444
No. 18-0068
444444444444
WARNER BROS. ENTERTAINMENT, INC.;
WARNER BROS. TECHNICAL OPERATIONS, INC. D/B/A WARNER BROS. ADVANCED
DIGITAL SERVICES; TMZ PRODUCTIONS, INC.; EHM PRODUCTION, INC. D/B/A
TMZ; TMZ.COM; AND ELIZABETH MCKERNAN, PETITIONERS,
v.
ROBERT JONES, RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT
4444444444444444444444444444444444444444444444444444
Argued September 19, 2019
JUSTICE GUZMAN delivered the opinion of the Court, in which JUSTICE LEHRMANN, JUSTICE
DEVINE, JUSTICE BUSBY, and JUSTICE BLAND joined.
CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE GREEN and JUSTICE
BLACKLOCK joined.
JUSTICE BOYD did not participate in the decision.
Long before the internet revolutionized the way the public experiences mass media, pundits
remarked in various formulations that a lie can travel halfway around the world before the truth
can get its boots on.1 And centuries before that, Jonathan Swift observed that “[f]alsehood flies, and
the truth comes limping after it, so that when men come to be undeceived, it is too late.”2
Recognizing that falsehoods spread quickly and are hard to dispel,3 the Defamation Mitigation Act
(DMA) induces publishers and claimants to take prompt action to mitigate reputational injuries that
may ensue from defamatory publications.4
This defamation lawsuit involves allegations that an internet tabloid rushed to publish a
salacious article about an alleged murder-for-hire plot featuring a former Dallas Cowboys football
player as a violent “gangster” who threatened to make “a man named Theodore” “disappear” for
refusing to kill a sports agent. According to the plaintiff, the publisher intentionally ignored red flags
about the informant’s credibility, failed to undertake basic due-diligence efforts, and maligned him
in a way the law recognizes as per se harmful.5 The question we address today is not the verity of
these allegations, which is not before us at this juncture of the litigation, but whether the plaintiff’s
lawsuit must be dismissed for asserted noncompliance with the statutory method for mitigating
1
Joshua Gillin, NFL’s Colin Kaepernick Incorrectly Credits Winston Churchill for Quote About Lies,
P O LIT I F A C T ( Oct. 9, 2017), https://www.po litifact.com/p unditfact/statements/2 0 17 /o ct/0 9 /
colin-kaepernick/nfls-colin-kaepernick-incorrectly-credits-winston-/.
2
Jonathan Swift, The Examiner No. 14 (Sept. 11, 1710),
https://www.ourcivilisation.com/smartboard/shop/swift/examiner/chap14.htm.
3
See Megan McCardle, We Finally Know for Sure That Lies Spread Faster Than the Truth. This Might be Why.,
W A S H I N G T O N P O S T ( M a r . 1 4 , 2 0 1 8 ) ,
https://www.washingtonpost.com/opinions/we-finally-know-for-sure-that-lies-spread-faster-than-the-truth-this-might-
be-why/2018/03/14/92ab1aae-27a6-11e8-bc72-077aa4dab9ef story.html (reporting the results of a study on how quickly
lies spread).
4
TEX. CIV. PRAC. & REM. CODE §§ 73.051–.062; see Mitigate, BLACK’S LAW DICTIONARY 1154 (10th ed. 2104)
(“To make less severe or intense; to make less harmful, unpleasant, or seriously bad[.]”).
5
D Magazine Partners, LP. v. Rosenthal, 529 S.W.3d 429, 439 (Tex. 2018) (accusing someone of committing
a crime is defamation per se).
2
damages. Because the plaintiff complied with the statute, we hold that the trial court properly denied
the publisher’s motion to dismiss. We therefore affirm the court of appeals’ judgment.
I. Background
Robert Jones is a former Dallas Cowboys football star who played ten seasons in the National
Football League (NFL). His illustrious career is marked by several notable accomplishments:
first-round draft pick in 1992, NFL Rookie of the Year in 1992, NFL Pro Bowl player, and
three-time Super Bowl champion. After retiring in 2002, Jones took up residence in Austin, where
he runs a business.
Theodore Watson, Jones’s cousin, has led a less storied life with a criminal history spanning
decades. Shortly before the events giving rise to this lawsuit, Watson was incarcerated in Ohio after
pleading guilty to attempted aggravated arson and insurance fraud. Soon after he was discharged
from parole in 2014, Watson began harassing Jones in an attempt to extort money from him.
Jones’s lawyer, Nicolas Bressi, sent Watson a cease-and-desist letter on June 10, 2014. Two
days later, Watson responded to Bressi’s letter by calling his office and leaving a threatening
voicemail. The same day, Watson called the “hot tip” line for internet tabloid TMZ.com to report
that Jones had threatened to harm him for refusing to murder Jones’s former agent. TMZ reporter
Elizabeth “Liz” McKernan replied to Watson by email, and they spoke by telephone twice that day.
Later that afternoon, Bressi sent Watson an email warning him to cease further
communications:
3
Subject: Robert Jones/Watson
Mr. Watson:
I received a message that you called my office today. I have no
intention of speaking with you as there’s nothing to discuss and I
have no reason or need to speak with you. All that needs to be said
was set forth in my letter. Please cease communicating with my
office.
Nicholas S. Bressi
[Contact Information]
Watson promptly forwarded the email to McKernan without the letter Bressi referenced. Minutes
later, Watson sent McKernan another email stating “the[y] are trying to shut me up or even [k]ill
me.”
The following day, Watson filed a complaint against Jones with the Cleveland Police
Department. Whether he did so of his own accord or at McKernan’s request is disputed. The
“Offense/Incident Report” recounts Watson’s claim that a month earlier on May 13, 2014 Jones
claimed to be a “gangster” who would make Watson “disappear” for refusing to murder Jones’s
agent. The report lists the alleged violation as “Aggravated Menacing” and states Watson was
advised to consult with a prosecutor. Watson informed McKernan that he had filed the report and
stated that “another reason I’m in fear” is because “the NFL [is] nothing but mafia[.]”
In the days that followed, Watson and McKernan communicated with each other several
times. At McKernan’s request, Watson sent her a copy of the Offense/Incident Report and, in a
series of emails to McKernan on June 16 and 17, expressed his hope that the story would gain
maximum exposure:
4
I want to go all the way with this espn,nationl enqure, people mag,cnn,talk shows
what ever, this way he will not try to kill me the worid will know! The lawyer is
herasing me know. I trust you liz this is real. And let jerry jones know he had a killer
on his team. [sic]
....
So what do you think about this story? How fare [sic] do you think this will go? And
do you think this will reach the masses. I have no reason to lie my rep is on the line.
McKernan responded: “We have your back . . . Writing everything up right now. . . . What did [the
police] say about investigating it?” Watson replied: “They said should have went to the fBI. This
need hit tv I’m ready [sic].” McKernan assured Watson the story would go live at “our busiest time
for the website, and then it will also go on the show[.]”
The day before publishing the story McKernan made a two-minute call to the records
department for the Cleveland Police Department to verify Watson had filed the complaint. A few
hours before going live with the murder-for-hire story, McKernan also reached out to Jones by direct
message [DM] to his Twitter account, and he responded within minutes:
McKernan: This is Liz from @TMZ_sports. Can you please follow/DM me? We
need to talk!
Jones: What’s up Liz . . . DM me.
McKernan: We have a police report that was filed against you claiming you hired
a hitman to kill your agent[.] [T]he alleged victim claims that he is in
fear for his life because of this[.] [W]e wanted to reach out to you
about it because it’s hard to believe obviously. My number is . . . .
Jones: Call this number and talk to this guy [Bressi’s telephone number].
5
McKernan claims she left Bressi a voicemail message that evening; Bressi said he heard from Jones,
but not McKernan. Either way, McKernan did not await Bressi’s response before the following story
was published on TMZ.com at 2:45 a.m. CDT on June 18, 2014:
6
Within hours after the story hit the internet, Bressi called McKernan and provided readily
verifiable information refuting the allegations and discrediting Watson. The reporter offered to
send Bressi the Offense/Incident Report Watson had filed with the Cleveland Police Department,
and she did so moments later:
Hi Nick,
Thanks for giving me a call!
Here’s the police report[.]
Let me know when you find out which authority will handle the false
report.
I’ve called Cleveland PD asking what it is they are even doing about the
report. All I know, (from records) is that it’s open, and was only recently
filed.
Here’s my info:
Liz McKernan
TMZ News Desk
[Contact Information]
Thanks!
Bressi simultaneously sent McKernan a preview copy of a press release addressing the
murder-for-hire plot that TMZ had reported as an “exclusive”:
Subject: Press Release / Robert Jones
Attached please find Mr. Jones’ press release for this matter.
The officer investigating the complaint is unavailable until later this week
so I don’t have anything further to report on that matter at this time.
Thank you,
Nicholas S. Bressi
[Contact Information]
7
Attached to Bressi’s email was the following:
PRESS RELEASE
RE: ROBERT JONES AND FALSE POLICE REPORT FILED BY
THEODORE WATSON, JR.
From: Nicholas S. Bressi, counsel for Robert Jones
Robert Jones deeply regrets that a distant relative has filed a false
police report against him. Robert Jones absolutely denies all accusations
contained within the false report filed by Mr. Watson and Mr. Jones is in the
process of filing his own complaints with law enforcement authorities to
address the situation. Robert Jones and his agent have a wonderful
relationship and there is not one word of truth contained in the report filed
by Mr. Watson.
Mr. Watson has recently been attempting to extort money from Mr.
Jones and has been harassing Mr. Jones and his family for the past several
months. Mr. Watson received a cease and desist letter from Mr. Jones’s
lawyer last week and after receiving that letter apparently Mr. Watson
decided to escalate his extortion attempts by filing a false report against Mr.
Jones then circulating the false report to the media.
Robert Jones is confident that when all facts are revealed through the
investigation of this matter that his name will be cleared and Mr. Watson’s
claims will be proven to be without merit.
McKernan immediately responded by asking Bressi to delay circulating the press release to other
media outlets to allow her time to publish another “writ[e] up” about the story:
8
Subject: RE: Press Release / Robert Jones
Thank you!
Writing up now if you can standby on sending to other media for a few
minutes[.]
Minutes later, and in obvious response to the information Bressi had supplied, TMZ published the
following as an addendum to the original story:
As the one-year statute of limitations was set to expire, Jones sued TMZ, McKernan, and
others (collectively, TMZ)6 for defamation, conspiracy, and other claims. After answering, TMZ
moved to dismiss all of Jones’s claims under the Texas Citizens Participation Act (TCPA)7 and,
6
Jones sued TMZ Productions, Inc.; TMZ.com; EHM Productions, Inc., d/b/a TMZ; EHM Productions Inc.;
Warner Bros. Entertainment, Inc.; Warner Bros. Technical Operations, Inc., d/b/a Warner Bros. Advanced Digital
Services; and Elizabeth McKernan. The court of appeals dismissed all claims against TMZ.com on the basis that it is
a domain name and not a legal entity, 538 S.W.3d 781, 804 (Tex. App.—Austin 2017), and no party has appealed that
ruling. For ease of reference, all of the defendants, except TMZ.com, are referred to collectively as “TMZ” unless
otherwise noted.
7
See TEX. CIV. PRAC. & REM. CODE § 27.003.
9
in a reply brief to that motion, TMZ further argued that the Defamation Mitigation Act (DMA) bars
Jones’s defamation suit because he failed to request a correction, clarification, or retraction of the
murder-for-hire story before the statute of limitations expired on that claim. Jones countered that
such a request is not a prerequisite to suit, but in any event (1) either Bressi’s prompt
communications with TMZ or TMZ’s responsive update to the story satisfied that prerequisite and
(2) if not, the remedy for noncompliance is abatement and loss of exemplary damages, not
dismissal. The trial court denied TMZ’s motion, and TMZ appealed.8
The court of appeals affirmed the trial court’s judgment as to TMZ’s arguments under the
DMA.9 Construing the statute as a whole, the court held that the consequence for failing to make
a request for correction, clarification, or retraction before the statute of limitations has expired is
not dismissal of the suit but preclusion of exemplary damages.10 If it were otherwise, the court
observed, the DMA’s provisions requiring defendants to timely object to an untimely request and
authorizing defendants to seek abatement of a pending lawsuit to secure a request would be
8
See id. § 51.014(a)(12) (authorizing an interlocutory appeal from an order denying a motion to dismiss under
the TCPA).
9
The court rejected TMZ’s other challenges to Jones’s defamation claim, but TMZ has not appealed those
holdings. Nor has Jones appealed the court of appeals’ adverse judgment dismissing his claims for intentional infliction
of emotional distress, malicious prosecution, and abuse of process under the TCPA.
10
538 S.W.3d at 812.
10
frustrated.11 In light of that holding, the court did not reach Jones’s alternative argument that any
prerequisite to suit under the DMA was satisfied.12
We granted TMZ’s petition for review. The parties raise two issues: whether Jones
complied with the DMA, and if not, whether dismissal is required.
II. Discussion
A. The Defamation Mitigation Act
The DMA was enacted in 2013 “to provide a method for a person who has been defamed
by a publication or broadcast to mitigate any perceived damage or injury.”13 The statute advances
that objective by providing sticks and carrots to induce plaintiffs and defendants to take prompt
action to rectify defamatory publications so any ensuing damages are ameliorated. The Act applies
to “all publications” in whatever form and all “claim[s] for relief, however characterized, from
damages arising out of harm to personal reputation caused by the false content of a publication.”14
At the heart of this dispute is Jones’s compliance with Section 73.055(a) of the Act,15 which
provides that “[a] person may maintain an action for defamation only if” (1) the person or an
11
Id. at 812-13(agreeing with the analysis in Hardy v. Commc’n Workers of Am. Local 6215 AFL CIO,536 S.W.3d 38
, 48 (Tex. App.—Dallas Mar. 31, 2017, pet. denied)); see TEX. CIV. PRAC. & REM. CODE §§ 73.058(c) (“If
a defendant intends to challenge the . . . timeliness of a request for a correction, clarification, or retraction, the defendant
must state the challenge in a motion to declare the request . . . untimely served not later than the 60th day after the date
of service of the citation.”), .062(a) (“A person against whom a suit is pending who does not receive a written request
. . . as required by Section 73.055, may file a plea in abatement not later than the 30th day after [filing an original
answer].”); see also id. § 73.055(a)(1), (b) (requiring a request to be “timely”).
12
538 S.W.3d at 812.
13
TEX. CIV. PRAC. & REM. CODE § 73.052.
14
Id. § 73.054.
15
The parties dispute who bears the burden of proving compliance or noncompliance and whether establishing
compliance is part of a defamation plaintiff’s prima facie case for purposes of a TCPA dismissal motion. We do not
reach these issues.
11
authorized attorney or agent “made a timely and sufficient request for a correction, clarification,
or retraction from the defendant” (a Request) or (2) the defendant has actually “made a correction,
clarification, or retraction” (a Change) with or without a request.16 Compliance with the statute may
thus be achieved through either a Request or a Change.
Under the Act, a Request is “timely if made during the period of limitation for
commencement of an action for defamation,”17 which is one year from accrual,18 and “sufficient”
if it:
(1) is served on the publisher;
(2) is made in writing, reasonably identifies the person making the request, and is
signed by the individual claiming to have been defamed or by the person’s
authorized attorney or agent;
(3) states with particularity the statement alleged to be false and defamatory and, to
the extent known, the time and place of publication;
(4) alleges the defamatory meaning of the statement; and
(5) specifies the circumstances causing a defamatory meaning of the statement if it
arises from something other than the express language of the publication.19
16
Id. § 73.055(a).
17
Id. § 73.055(b).
18
See id. §§ 16.002(a) (“A person must bring suit for . . . libel [or] slander . . . not later than one year after the
day the cause of action accrues.”), 73.055(e) (“A period of limitation for commencement of an action under this section
is tolled during the period allowed by Sections 73.056 and 73.057.”). The statute authorizes tolling during statutorily
authorized investigatory periods. Id. §§ 73.056–.057, .059 (authorizing the publisher to request evidence of falsity and
providing a time frame during which a publisher can make a Change to cut off liability for exemplary damages).
19
Id. § 73.055(d).
12
If a Request is made more than 90 days “after receiving knowledge of the publication,” recovery
of exemplary damages is prohibited.20 Publishers can also avert liability for exemplary damages
by making a statutorily compliant Change, with or without a request, “unless the publication was
made with actual malice.”21
Any challenge to timeliness or sufficiency of a Request must be timely and specific:
If a defendant intends to challenge the sufficiency or timeliness of a request for a
correction, clarification, or retraction, the defendant must state the challenge in a
motion to declare the request insufficient or untimely served not later than the 60th
day after the date of service of the citation.22
Unlike a Request, a Change need not be “timely or sufficient” for Section 73.055(a) purposes.23
But if a defendant intends to rely on a Change in mitigation of damages, the Change must be timely
and sufficient, and the defendant must serve notice of intent on the plaintiff within 60 days after
service of citation or 10 days after making the Change, whichever is later.24 A Change is deemed
timely and sufficient unless the plaintiff challenges timeliness or sufficiency within 20 days after
receiving such notice.25 A timely and sufficient Change is admissible at trial only in mitigation of
damages under Section 73.003(a)(3).26
20
Id. § 73.055(c) (emphasis added).
21
Id. § 73.059.
22
Id. § 73.058(c).
23
Compare id. § 73.055(a)(1), with id. § 73.055(a)(2).
24
Id. § 73.058(a).
25
Id. § 73.058(b).
26
Id. § 73.061(b); see id. § 73.003(a)(3) (“To determine the extent and source of actual damages and to mitigate
exemplary damages, the defendant in a libel action may give evidence of the following matters if they have been specially
pleaded . . . any public apology, correction, or retraction of the libelous matter made and published by the defendant.”).
13
If suit is pending and the defendant did not receive a Request “as required by Section
73.055,” the statute provides a time-limited process by which a defendant can secure “automatic[]”
abatement of the lawsuit.27 Once the abatement process is properly invoked, the lawsuit is abated
“until the 60th day after the date that the written request is served or a later date agreed to by the
parties,” and in the interim, all statutory and procedural deadlines are stayed.28
TMZ argues that Jones failed to make a “timely and sufficient request” as required by
Section 73.055(a)(1) of the DMA and, in fact, did not comply with the statute at all. We disagree.
Bressi’s communications with TMZ constitute a Request; TMZ actually understood Jones to have
made a Request; and if Jones’s timely communications with TMZ were not “sufficient” under the
Act, TMZ’s failure to timely challenge sufficiency as required by Section 73.058(c) waived any
insufficiency complaints. What is more, and in the alternative, TMZ actually “made a . . .
clarification” within the meaning of Section 73.055(a)(2) by (1) providing Jones’s side of the story
(at least in part) and (2) adding clarifying facts about the central figures in the story.29 Accordingly,
27
Subsections (a) and (b) of Section 73.062 provide:
(a) A person against whom a suit is pending who does not receive a written request for a correction,
clarification, or retraction, as required by Section 73.055, may file a plea in abatement not later than
the 30th day after the date the person files an original answer in the court in which the suit is pending.
(b) A suit is automatically abated, in its entirety, without the order of the court, beginning on the 11th
day after the date a plea in abatement is filed under Subsection (a) if the plea in abatement . . . is
verified and alleges that the person against whom the suit is pending did not receive the written request
as required by Section 73.055; and . . . is not controverted in an affidavit filed by the person bringing
the claim before the 11th day after the date on which the plea in abatement is filed.
28
Id. § 73.062(b), (c), (d).
29
Id. § 73.057(b)(4) (“publication of the requestor’s statement of the facts” is a “correction, clarification, or
retraction”).
14
Section 73.055(a) is satisfied, and we need not determine whether dismissal is required when the
statute of limitations has elapsed without a sufficient Request or Change.
B. Timely and Sufficient Request
Compliance with the statute is satisfied here because Jones, through his attorney, timely
made a sufficient request that actually prompted TMZ to change the story via an “update” issued
minutes later. The statute worked exactly as the Legislature intended Jones promptly notified
TMZ about the defamatory nature of its article, placing the ball in TMZ’s court to take mitigating
action in response.30
In arguing otherwise, TMZ focuses on Jones’s press release as if it were an out-of-the-blue
missive devoid of any context. But the communications between Jones’s attorney, Nicholas Bressi,
and TMZ’s reporter, Liz McKernan, tell a different story and establish Jones’s compliance with
Section 73.055(a)(1)’s requirements.
The written email exchanges were well within the statute of limitations and were therefore
timely.31 Indeed, Jones’s agent contacted TMZ the very day the purportedly defamatory story was
published both by telephone and in writing concerning the defamatory publication. Those
communications did not include the words “I request a correction, clarification, or retraction,” but
the statute does not require such formality. Bressi’s email exchanges with TMZ’s reporter with
or without the context provided by their earlier telephone call clearly communicated Jones’s
30
See id. §§ 73.056 (allowing the defendant to request—and penalizing the plaintiff for failing to
provide—evidence of falsity), .057 (providing the requirements for making a timely and sufficient Change), .059 (a
timely and sufficient Change eliminates exemplary damages unless the publication was made with actual malice), .061(b)
(the fact that a Change was made and the contents of the Change are admissible in mitigation of damages).
31
See id. § 73.055(b).
15
desire that the false allegations in the article be removed or revised. Indeed, the reporter actually
understood it to be such a request, asking Bressi to delay issuing the press release pending a new
write up. And in response to Bressi’s communications with the reporter, TMZ in fact issued an
addendum to the original article incorporating some, but not all, of the information Bressi provided.
As for the Act’s remaining sufficiency requirements:
• the record includes evidence that the recipient of the emails, Liz McKernan,
published the defamatory statement;
• in a writing electronically signed by his authorized attorney, Jones was identified
as the person requesting a change to the article;
• from the language employed in the email exchanges, and as evidenced by the update
appended to the original article, the particular publication at issue was known to the
reporter;
• the defamatory statement was repeatedly identified as being the false criminal
charges Watson lodged against Jones; and
• the defamatory meaning is self-evident from the express language of the publication
because falsely accusing someone of committing a crime is defamation per se.32
Nothing more is required to satisfy either the letter of the law or its expressly stated purpose.33
Moreover, if the sufficiency of Bressi’s timely notification that TMZ had published false
allegations of criminal conduct was genuinely subject to dispute, the DMA explicitly and
32
D Magazine Partners, LP. v. Rosenthal, 529 S.W.3d 429, 439 (Tex. 2018) (accusing someone of committing
a crime is defamation per se).
33
See, e.g., Sorrell v. Estate of Carlton, 593 S.W.3d 167, 173 (Tex. 2019) (“substantial compliance is insufficient to satisfy a statutory deadline, [but] it may be sufficient to comply with other statutory requirements,” and is sufficient under the redemption statute where a timely, but insufficient, payment was made); Roccaforte v. Jefferson County,341 S.W.3d 919, 926-27
(Tex. 2011) (substantial compliance with notice requirements was sufficient: “[t]he
statute was not intended to create a procedural trap allowing a county to obtain dismissal even though the appropriate
officials have notice of the suit”).
16
unequivocally placed the onus on TMZ to raise an objection within 60 days after being served with
the defamation lawsuit, and that did not happen. The record does not disclose the date citation was
served, but TMZ’s original answer was filed on July 17, 2015, and TMZ did not assert
noncompliance with the DMA until November 23, 2015. And even at that late date, TMZ only
challenged DMA compliance in its reply brief supporting its motion to dismiss under the TCPA.
TMZ’s argument dismisses its obligations under Section 73.058(c), but under the statute’s express
language, TMZ waived any insufficiency complaints.
C. Correction, Clarification, or Retraction
Jones also satisfied the DMA because TMZ made a Change within the meaning of Section
73.055(a)(2). TMZ asserts the update was not a clarification because it reports only on Bressi’s
subsequent press release and clarifies nothing about TMZ’s initial story. Not so. The
“update” which was made directly in response to Bressi’s email and parroted its
language clarified the original story by adding at least two facts known to TMZ’s reporter before
the original story issued that were readily verifiable at that time:
1. The “man named Theodore” referred to in the original story was related to Jones; and
2. Theodore Watson and Jones were embroiled in a dispute involving extortion at the time
Watson reported the alleged murder scheme to the Cleveland police department.
McKernan chose to omit these facts from the original story, but added them to the update in
response to Bressi’s communications. TMZ’s update (1) clarified the relationship between the
story’s central figures, who were portrayed as strangers in the original story, and (2) identified the
17
disgruntled relative’s motive for filing a false police report, something a stranger would have little
reason to do.
Even before publishing the murder-for-hire story, McKernan knew Jones and Theodore
Watson were cousins, because that information was included in the Offense/Incident Report. And
at least six days before the story went live, McKernan was aware Jones and Watson had been
involved in a dispute and that Bressi had sent Watson a letter and an email instructing him to cease
communications. McKernan chose not to make further inquiry with either Watson or Bressi about
the contents of the letter or the nature of the dispute. But after she spoke with Bressi and had a
preview copy of the press release in hand, information about the preexisting dispute was added to
the update: “[Jones] says the guy has ‘recently been attempting to extort money’ from him and his
family.” These facts add important context to the allegations reported in the original story and
provide an ulterior motive for the source’s claims against Jones, thus bearing directly on the
credibility of the murder-for-hire allegations. In other words, the information McKernan added to
the update shed a whole new light on the story TMZ previously reported.
But even more importantly, under Section 73.057(b)(4), a correction, clarification, or
retraction is defined as including publication of the other side of the story.34 By reporting at least
some of Jones’s side of the story, the update was by definition a cognizable Change to the
publication and therefore was, as a matter of law, a Change for purposes of Section 73.055(a)(1).35
34
TEX. CIV. PRAC. & REM. CODE § 73.057(b)(4).
35
Whether the changes TMZ made constituted a “sufficient” Change for purposes of allowing TMZ to obtain
the statutory benefits of making such a change is disputed but irrelevant to whether a Change was actually made for
purposes of compliance with Section 73.055(a)(2), which does not require a Change to be sufficient. See id.
§ 73.055(a)(2) (“A person may maintain an action for defamation only if: . . . the defendant has made a correction,
clarification, or retraction.”). Sufficiency of the Change is also irrelevant because TMZ did not serve statutory notice
18
D. Response to the Dissent
The dissent primarily argues that neither Bressi’s communications with TMZ’s reporter nor
TMZ’s update satisfy Section 73.055(a). The facts speak for themselves. The dissent’s analysis
is also unsound for several other reasons, including the following:
First, the dissent argues Section 73.055(a) acts as a toll booth through which defamation
plaintiffs may pass only if they have token 1 (a Request) or token 2 (a Change).36 But in the
dissent’s view, whether token 2 allows passage is not based on the defendant’s actions in actually
making a change to the defamatory publication, but through its unilateral litigation
choices specifically, whether it chooses to defensively rely on a change as “sufficient and timely”
to mitigate its damages in accordance with Section 73.058(a).37 According to the dissent,
satisfaction of what is purportedly a predicate to passing through the toll booth whether the
defendant actually made a Change is not for “judicial decision-making”; instead, the “sole
statutory test” is whether TMZ gave timely “notice of its intent to rely on the Update as a Change”
of intent to rely on the update as mitigating damages. See id. § 73.058(a) (placing the burden on defendants to serve
timely notice of such intent).
36
Post at 3-4.
37
Id. at 5. Section 73.058(a) provides:
If a defendant in an action under this subchapter intends to rely on a timely and sufficient correction,
clarification, or retraction, the defendant’s intention to do so, and the correction, clarification, or
retraction relied on, must be stated in a notice served on the plaintiff on the later of:
(1) the 60th day after service of the citation; or
(2) the 10th day after the date the correction, clarification, or retraction is made.
19
for purposes of mitigating its damages exposure.38 Stated succinctly: a Change is not a Change
unless the defendant says so.39
Even if that were a plausible construction of the statute, it is not a reasonable one.40 The
dissent contradicts itself by saying suit cannot go forward at all without token 1 or token 2 while
at the same time acknowledging, as it must, that a defendant’s notice of intent to rely on a Change
under Section 73.058(a) offers, at best, an opportunity to mitigate damages.41 The dissent construes
the DMA as allowing defendants to unilaterally choose to entirely avoid a defamation suit by not
giving notice of intent to rely on a Change or to voluntarily submit to the litigation on the mere
possibility that exemplary damages might be eliminated if the Change the defendant chooses to rely
on is sufficient and if the publication was not made with malice.42 But what defendant would ever
choose to have potentially limited damages exposure instead of zero damages exposure? Under
the dissent’s facially unreasonable construction of the DMA, Section 73.055(a)(2) is effectively
written out of the statute.43
38
Post at 5, 10.
39
In arguing a Change cannot be a Change absent the publisher’s intent to make a change for purposes of
satisfying the DMA, the dissent adds words to the statute and materially alters its terms. See id. at 10. While changing
a publication would involve intentional conduct, the statute says nothing about the defendant’s purpose in making a
change. Here, McKernan intentionally made cognizable changes to the original story in response to Bressi’s
communications with her. That is enough to make it through the toll booth.
40
See In re A.L.M. F., 593 S.W.3d 271, 281 (Tex. 2019) (“We must give the statute a meaning that is
reasonable when the statute is construed as a whole.”).
41
Post at 5, 10.
42
See TEX. CIV. PRAC. & REM. CODE § 73.059 (“If a [Change] is made in accordance with this subchapter,
regardless of whether the person claiming harm made a request, a person may not recover exemplary damages unless
the publication was made with malice.”).
43
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (“The Court must not
interpret [a] statute in a manner that renders any part of the statute meaningless or superfluous.”).
20
Second, the dissent asserts that “TMZ has never had a chance to address” its noncompliance
with Section 73.058(c) because “Jones has not made this argument since filing suit.”44
Section 73.058(c) requires defendants to timely object to a defamation plaintiff’s noncompliance
with Section 73.055(a)(1). Jones has in fact made that argument, and TMZ has responded:
Because Bressi’s press release and Jones’ petition simply are not requests for
correction, clarification, or retraction under the DMA, Jones’[s] argument that
[TMZ] should have invoked Section 73.058(c) necessarily fails. . . . Section
73.058(c) is implicated only when the defamation claimant has actually made a
request for correction, clarification, or retraction under the statute Jones made no
such request.
TMZ’s failure to invoke the DMA in the time and manner required by Section 73.058(c) is a
fact one that is indisputable and the parties’ briefs are permeated with the opportunity to address
TMZ’s compliance. TMZ has repeatedly called Section 73.058(c) one of the “four provisions of
the DMA [that] are at issue[.]” Indeed, Section 73.058(c) compliance is central to the parties’
dispute about whether dismissal is a remedy when a plaintiff does not comply with Section
73.055(a) before the statute of limitations expires. As to that matter, the parties pointedly discuss
whether dismissal is a legislatively contemplated remedy because dismissal would allow defendants
to avoid compliance with Section 73.058(c), like TMZ seeks to do here.
The dissent excuses TMZ’s noncompliance with “[t]he Act’s intricate design” on the basis
that Jones’s original petition did not allege he made a Request or assert that the updated story is a
Change.45 But the DMA does not impose any special pleading requirements on defamation
44
Post at 9.
45
Id. at 5, 9-11.
21
plaintiffs;46 Jones’s pleadings specifically identified Bressi’s communications with McKernan about
the disputed publication and the responsive update;47 and the DMA does not require defamation
pleadings to specifically label a Request or a Change as such. Rather, the DMA explicitly puts the
burden on defendants in a defamation lawsuit to timely (1) object if Section 73.055(a)(1) has not
been satisfied and (2) point to a Change if they think it will reduce their damages exposure.48 TMZ
did neither.49
Third, the dissent says TMZ’s update to the original story cannot be a Change because a
Change cannot be defamatory.50 This misreads the statute. A Change cannot be sufficient if it is
“defamatory of another, obscene, or otherwise improper for publication,” but it can still be a
Change.51
46
See TEX. R. CIV. P. 47(a) (requiring simple notice pleading).
47
Jones’s petition identifies the defamatory publication, the communications between Bressi and McKernan,
and the fact that Bressi promptly provided information to McKernan that the publication was false. The dissent implies
Jones conceded the update was not a Change by virtue of the following statement in his petition: “Moments after the call
with Jones’s attorney, TMZ issued an ‘Initial Broadcast Update’ to its story—not a retraction or correction, but a mere
supplement.” See post at 9-10. But disclaiming the update as a retraction or correction does not constitute a disclaimer
of the update as a clarification because “correction, clarification, or retraction” are listed disjunctively as alternatives
under the DMA. See TEX. CIV. PRAC. & REM. CODE § 73.055(a)(2).
48
See id. § 73.058(a), (c).
49
The DMA also permits “[a] person against whom a suit is pending who does not receive a written request for
a correction, clarification, or retraction, as required by Section 73.055 [to] file a plea in abatement not later than the 30th
day after the date the person files an original answer in the court in which the suit is pending.” Id. § 73.062(a). TMZ
also did not pursue this remedy.
50
Post at 11 (relying on Jones’s allegation that TMZ’s selective inclusion of parts of his statement added to the
defamation).
51
See TEX. CIV. PRAC. & REM. CODE § 73.057(b)(4) (“A correction, clarification, or retraction is sufficient if
. . . [it] is publication of the requestor’s statement of the facts . . . exclusive of any portion that is defamatory of another,
obscene, or otherwise improper for publication.” (emphasis added)).
22
Fourth, with respect to whether the consequences for failing to satisfy Section 73.055(a)
before limitations expires include dismissal or are instead limited to the remedies expressly
provided in the statute (abatement and an exemplary-damages bar), the dissent chides the Court for
“suggest[ing] the issue does not exist.”52 The charge is inaccurate. This matter is clearly identified
as an issue in this case that we do not reach because Jones complied with the statute.53 In
discussing the DMA, we correctly observe the Legislature has enacted specific remedies, including
“a time-limited process by which a defendant can secure ‘automatic[]’ abatement of the lawsuit”
when no timely and sufficient request has been made “as required by Section 73.055.”54 But we
do not reach the hotly contested issue about the availability of any other remedies that may or may
not be inferred from the statutory language.
Finally, the dissent presents a reductio ad absurdum argument: if Bressi’s timely and
substantive communications directly with the publisher of the challenged publication satisfy the
DMA, “every future defamation plaintiff will claim a casual tweet or website posting as a Change
that gets them through the Section 73.055(a) toll booth,”55 and “any Twitter message complaining
of a story will be a Request, any response by the publisher a Change, and a plaintiff can proceed
without further effort.”56 The sky, however, is not falling. The facts of this case do not validate the
dissent’s concerns. Bressi communicated directly and repeatedly with the point person for the
52
Post at 12.
53
See supra at 2, 13-14, 19.
54
See supra at 17-18 (quoting TEX. CIV. PRAC. & REM. CODE § 73.062).
55
Post at 5.
56
Id. at 12-13.
23
“exclusive” story while the story was fresh off the proverbial presses. He also provided verifiable
information bearing on falsity of the defamatory article, which the DMA permits the publisher to
request.57 McKernan acted immediately and directly in response by issuing an updated article.
Jones cited these facts in his petition, and TMZ did not exercise its prerogative to object or claim
the update was sufficient to mitigate any damages. While the dissent charges that “[t]he Act’s
intricate design has been destroyed” by the outcome of this case,58 it is the dissent who fails to hold
TMZ to the statute’s requirements.
III. Conclusion
We hold that Jones satisfied Section 73.055(a) of the Defamation Mitigation Act because
he made a timely and sufficient Request and because TMZ actually made a Change to the story.
We therefore affirm the court of appeals’ judgment and remand the case to the trial court for further
proceedings.
________________________________
Eva M. Guzman
Justice
OPINION DELIVERED: May 8, 2020
57
See TEX. CIV. PRAC. & REM. CODE § 73.056.
58
Post at 5.
24
Reference
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