Media, First Amendment & Public Access

PREPUBLICATION REVIEW, REPORTER’S PRIVILEGE AND WEBSITE DUE DILIGENCE

We regularly assist print and electronic publishers with prepublication review, assessing potential liability.  We help our clients “get the story” while, at the same time, minimizing their legal exposure.  We defend journalists and their work from subpoenas in criminal and civil cases to keep confidential sources from being exposed and prevent the disruption of newsgathering and reporting.

Our lawyers also provide top-to-bottom review of websites for potential legal issues, including libel, invasion of privacy, copyright and trademark concerns.  We help our clients develop and post enforceable click-through terms and conditions of use for websites and privacy policies.

OPEN GOVERNMENT AND OPEN RECORDS

Graves Dougherty lawyers are deeply involved in developing and applying Texas’ open meetings and public information laws – the Texas Public Information Act (TPIA) and the Texas Open Meetings Act (TORA) – as well as the federal Freedom of Information Act (FOIA).  We help the media and private parties make and enforce requests for public information and documents and insist that government meetings and court proceedings remain open.  Promoting open government and open records has been a staple of Graves Dougherty’s media practice since Texas adopted its sunshine laws.  We also assist private entities who have dealings with the government in protecting their bona fide trade secrets and other confidential information from being improperly disclosed to competitors.

LIBEL, SLANDER AND DEFAMATION LITIGATION

Our lawyers have handled dozens of libel, defamation and business disparagement lawsuits, at trial and on appeal, defending people and companies who have been sued for exercising their First Amendment rights.  We have defended every type of media in libel suits, from national broadcasters to individual bloggers, and everything in between.  For decades, we have been in the forefront of developing libel law in Texas and beyond.  A sampling of our cases includes:

• Appellate reversal of a multi-million-dollar libel judgment entered against a pro se defendant at trial.  Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014) (pro bono representation).
• Take-nothing reversal in the Texas Supreme Court of libel judgment in lawsuit brought by mayor of city against local environmental activist.  Salinas v. Salinas, 365 S.W.3d 318 (Tex. 2012) (per curiam) (pro bono representation).
• Take-nothing dismissal in the Texas Supreme Court of a lawsuit claiming that satirical article libeled judge and district attorney, setting standard for protection of political satire and parody under First Amendment in Texas.  New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004).
• Summary judgment dismissal of libel and business disparagement lawsuit filed by high-tech agricultural companies against Forbes magazine and journalist.  Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003).
• Dismissal on the pleadings of libel lawsuit brought by law enforcement officer against alternative newspaper/website and reporter.  King v. Phoenix New Times LLC et al. (Ariz. Sup. Ct., Pinal County 2012).
• Co-authored amicus brief urging Texas Supreme Court to reconsider portion of adverse decision in defamation lawsuit that succeeding in prompting a revised opinion.  Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013).
• Summary judgment dismissing libel claims brought by one community organization against competing organization.  Austin Bangladesh Association v. Bangladesh Association of Greater Austin (Travis County Dist. Ct. 2009).
• Summary judgment granted in successive libel lawsuits brought against Chinese-language newspaper and editor.  Wang v. Tang, 260 S.W.3d 149 (Tex. App. – Houston [1st Dist.] 2008, pet. denied).
• Summary judgment dismissal of lawsuit brought by former district attorney against Smithville Times.  Cox Texas Newspapers, L.P. v. Penick, 219 S.W.3d 425, (Tex. App. – Austin 2007, pet. denied).
• First-impression dismissal of libel claim against website publication on statute of limitations grounds.  Hamad v. Center for Study of Popular Culture (W.D. Tex. 2006).
• Reversal of improper temporary injunction entered by trial judge that prevented insurance company from criticizing banks’ business dealings.  Texas Mutual Insurance Co. v. Surety Bank, N.A., 156 S.W.3d 125 (Tex. App. – Fort Worth 2005, no pet.).
• Summary dismissal on interlocutory appeal of attorney’s libel claim complaining of Associated Press’ coverage of SEC securities fraud lawsuit and trial.  Associated Press v. Boyd, 2005 WL 1140369 (Tex. App. – Dallas 2005, no pet.).

ANTI-SLAPP MOTIONS

From the moment in 2011 that Texas enacted its anti-SLAPP statute – the Texas Citizens Participation Act (TCPA) – our lawyers have been obtaining dismissal of meritless lawsuits that threaten the right of free speech and association.  For example:

• Established that the widow of Tammy Wynette’s widower, who voluntarily appeared on television programs to discuss ongoing controversy about Tammy Wynette’s estate, was a “public figure” subject to the TCPA’s burden when she sued a citizen who commented on the issue in various Internet forums.  McManus v. Richey, 2016 WL 4045078 (Tex. App. – Waco July 27, 2016, no pet. h.).
• Obtained anti-SLAPP dismissal of a lawsuit, plus attorneys’ fees and sanctions, brought by Austin City Council candidate against investigative journalist and non-profit local news website.  Zimmerman v. Austin Bulldog (Travis County Dist. Ct. 2015).
• We have obtained anti-SLAPP dismissals, along with awards of fees and sanctions, under the Anti-SLAPP statute in numerous cases across Texas.  E.g., Niles v. Wilkerson (Travis County Ct. at Law 2016); Bovee v. Houston Press, et al. (Johnson County Dist. Ct. 2015); Satterwhite v. Houston Press, LP (Harris County Dist. Ct. 2015); Barnes v. Austin American-Statesman (Travis County Dist. Ct. 2015); Pennie v. Dallas Observer LP (Dallas County Dist. Ct. 2014); Thuesen v. Schoolar et al. (Harris County Dist. Ct. 2013); Merklin v. Houston Press (Harris County Dist. Ct. 2013).  Our simply filing an anti-SLAPP or similar motion has resulted on occasion in the voluntary dismissal of a lawsuit.  Doe v. SeaWorld Parks & Entertainment, Inc. (Orange County Dist. Ct. 2015); Thuesen v. Swamplot Industries LLC (Harris County Dist. Ct. 2014).

BUSINESS DISPARAGEMENT AND FALSE ADVERTISING

We also represent individuals and companies who have suffered demonstrable financial loss from provably false, disparaging statements and advertisements.  For instance, in a protracted dispute between two waste disposal companies, we obtained a substantial jury verdict and judgment for actual and punitive damages based on the distribution by a business competitor of false statements about our client’s environmental record.  Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Inc., 434 S.W.3d 142 (Tex. 2014). 

PRIVACY

Graves Dougherty’s lawyers represent parties involved in disputes over the right to privacy, including publications defending their right to speak on matters of public concern, and individuals and businesses with legitimate claims that their private information has been, or may be, disclosed or exploited by ex-employees and competitors.

• Obtained dismissal of claim alleging that a newspaper/website could not publish details of an arrest when that arrest was later expunged.  Onishi v. Village Voice Media (Harris County Dist. Ct. 2014).
• Obtained dismissal of lawsuit alleging that publication of plaintiff’s publicly-acknowledged HIV status violated Texas Communicable Disease Prevention and Control Act.  New Times, Inc. v. Doe, 183 S.W.3d 122 (Tex. App. – Dallas 2006, no pet.).
• Represented small start-up business owner in lawsuit against former employer that surreptitiously used spyware to monitor and disrupt competitor.  Fleishman v. Sportexe, Inc. (W.D. Tex. 2006).
• Won bench trial and judgment against U.S. Secret Service for illegally seizing and searching small publisher’s computer system, online bulletin board system and email under Privacy Protection Act and Electronic Communications Privacy Act.  Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff’d, 36 F.3d 457 (5th Cir. 1994).

ADULT CONTENT AND SEXUALLY-ORIENTED BUSINESSES

Our lawyers have assisted community television stations, websites and brick-and-mortar businesses navigate the complex laws and regulations governing adult-oriented materials, including filing litigation over restrictions on location.

RELIGIOUS FREEDOM

Over the years, Graves Dougherty lawyers have handled a number of interesting and precedent-setting religious freedom lawsuits, including obtaining a tax exemption for a non-theistic religious organization. Strayhorn v. Ethical Society of Austin, 110 S.W.3d 458 (Tex. App. – Austin 2003, pet denied).

UNCONSTITUTIONAL STATUTES, RULES AND REGULATIONS.

Graves Dougherty’s lawyers have extensive experience proactively challenging laws, regulations and practices that violate free speech and other constitutional rights, such as advertising regulations, restrictions on the use of public information, and limitations on investment choices.  For example:

• We led the preparation and filing of a Sherman Antitrust Act lawsuit against a state bar association for prohibiting the sale of legal plans in the state from a perceived non-lawyer competitor.  LegalZoom.com, Inc. v. North Carolina Bar Association (M.D.N.C. 2015).
• We successfully challenged Texas’ arcane beer advertising and labeling requirements, for violating the First Amendment, on behalf of craft brewers, distributors and retailers.  Authentic Beverage Co. v. Texas Alcohol Beverage Commission, 835 F. Supp.2d 227 (W.D. Tex. 2011).
• We represented Texas’ leading provider of free legal services to low-income residents and migrant/seasonal farm workers in successfully challenging speech-based restrictions that barred the organization from offering assistance at FEMA disaster centers.  Texas RioGrande Legal Aid v. Federal Emergency Management Agency (W.D. Tex. 2007) (pro bono representation).
• We sued a committee appointed by the Texas Supreme Court that was seeking to ban the publication of self-help law books in Texas.  Nolo Press v. Unauthorized Practice of Law Committee (Travis County Dist. Ct. 1999).
• In addition to our decades-long practice advocating for free speech, transparent government and related issues, Graves Dougherty lawyers actively participate in public-interest and education efforts.  The firm’s lawyers have taught Internet free speech law at the University of Texas School of Law, served on the board of directors of the Freedom of Information Foundation of Texas and volunteered on FOIFT’s telephone hotline, served as chair of the Media Law Resource Center’s Litigation Committee, and spoken frequently at continuing legal education seminars and media conferences.