El Paso Times v. James W. Kerr Book Reviews

El Paso Times v. James W. Kerr by El Paso No. 08-85-00025-CV The Eighth Court of Appeals Book Summary

The Appellant, El Paso Times, Inc., was sued by Appellee, an assistant United States attorney, for libel concerning an article which was written by Appellant's reporter, Ron Dusek. Mr. Dusek's article appeared in the editorial section of the paper and was entitled ""Federal System Less Than Just?"" The article in referring to Mr. Kerr's closing argument in the de la Torre-Garcia trial made the statement that ""Kerr lied."" The article contained a further reference to cheating during the same drug conspiracy trial. The jury found that the ""lying"" phrase in the article was not published with actual malice, but it did find that the ""cheating"" phrase falsely accused Appellee of cheating and that the accusation was defamatory and published with actual malice. The jury awarded $500,000.00 in actual damages and $3,000,000.00 in exemplary damages. After remittitur by the trial court, judgment was entered for $100,000.00 actual and $500,000.00 exemplary damages. We reverse and render. In Points of Error Nos. One and Two, Appellant presents the assertion that the article was an expression of opinion and hence protected under the First and Fourteenth Amendments of the United States Constitution, relying in part on Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984). The current test on such an issue is to examine the totality of the circumstances and the full context of the publication to see if it would be received by the average reader as a factual assertion or as a writer's personal opinion. Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970 (D.C. Cir. 1984). These two points of error have merit and we believe are determinative of this appeal. More particularly, the first point is that the evidence established as a matter of law that the statement regarding cheating was a non-actionable protected expression of opinion. The second point urges there was no evidence that Appellant published a false statement of fact.

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