PJC Business 2024

PJC 110.3

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

Textual defamation is either “explicit” or “implicit.” Tatum , 554 S.W.3d at 626–27. Explicit textual defamation depends on the literal meaning of the allegedly defamatory publication. “[T]he defamatory statement’s literal text and its communicative content align—what the statement says and what the statement communicates are the same. In other words, the defamation is both textual and explicit .” Tatum , 554 S.W.3d at 627. By contrast, implicit textual defamation, or “defamation by implication,” depends on a defamatory meaning that “arises from the statement’s text, but . . . does so implicitly.” Tatum , 554 S.W.3d at 627 . A publication may create defamation by implication either because the gist of the entire publication has a defamatory meaning, Tatum , 554 S.W.3d at 627–28; Turner , 38 S.W.3d at 114, or because “a distinct portion” of the publication implies a defama tory meaning, Tatum , 554 S.W.3d at 628. “‘Gist’ refers to a publication or broadcast’s main theme, central idea, thesis, or essence.” Tatum , 554 S.W.3d at 629. The gist of a publication is “how a person of ordinary intelligence would perceive it,” Tatum , 554 S.W.3d at 629, taking the publication as a whole. “The ‘would’ standard recognizes that gist, in particular, is the type of implication that no reasonable reader would fail to notice.” Tatum , 554 S.W.3d at 629–30. Defamation by implication based on a part of the publication, by contrast, depends not on the meanings that a person of ordinary intelligence “would” perceive, but instead on the potential meanings that arise “from an objectively reasonable reading.” Tatum , 554 S.W.3d at 631. Series of publications. When a media outlet publishes a series of articles report ing on the same subject matter, the entire series of articles must be considered together, rather than as separate and distinct publications, to determine whether they had a defamatory meaning. Scripps NP Operating, LLC v. Carter , 573 S.W.3d 781, 790–91 (Tex. 2019). Role of the judge and jury in determining meaning. Before a jury can deter mine the meaning of a publication and whether that meaning is defamatory, the court must make a threshold determination that the publication is capable of a defamatory meaning. Turner , 38 S.W.3d at 114. In Tatum , 554 S.W.3d at 625–37, the supreme court synthesized its prior cases and established a framework for answering this ques tion. The first step is to “determine whether the meaning the plaintiff alleges is reason ably capable of arising from the text of which the plaintiff complains.” Tatum , 554 S.W.3d at 625. The second step is to determine whether that meaning “is reasonably capable of defaming the plaintiff.” Tatum , 554 S.W.3d at 625 . Additionally, in defamation by implication cases based on an implication from a specific part of a publication, the First Amendment imposes a further requirement that the plaintiff “point to ‘additional, affirmative evidence’ within the publication itself that suggests the defendant intends or endorses the defamatory inference.” Tatum , 554 S.W.3d at 635 (quoting White v. Fraternal Order of Police , 909 F.2d 512 520 (D.C. Cir. 1990)). For example, a court can consider whether the publication clearly dis closes its factual bases; whether the alleged implication aligns or conflicts with the

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