Sample Test Question and Answer

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(25 points)

The Abilene Tetrasaurus, a daily newspaper, receives a tip that Billy Joe Percival, pulpit pastor of Catclaw Baptist Church, is being investigated for tax fraud. An anonymous caller left a message with reporter Jimmy Olson stating the Internal Revenue Service had raided Catclaw Baptist and taken as evidence copies of Percival’s income statements and other financial information. Catclaw Baptist is the largest church in Abilene, and for the past five years, Percival’s sermons have been broadcast on local TV. He is a board member of the Homeless Hospice and campaigns on behalf of political candidates.

Olson thinks evangelists, particularly televised evangelists, are hypocritical and has expressed that to others in the newsroom. Olson is a busy reporter, but about a week after receiving the tip he follows up and calls the IRS. Officials “can neither confirm nor deny” the existence of an investigation. He calls Percival’s office a few days later. The church secretary, whose name he didn’t get, tells Olson that Percival is out of town for a week. When Olson asks her about the investigation, she says “I can’t tell you anything about that…” Olson takes that as a tacit admission and writes the story based on those sources. His story contains the following language:

• “Televangelist Billy Joe Percival is under investigation for tax fraud, sources say…”
• “The IRS visited Percival’s office and dragged off reams of incriminating data…”
• “A source who contacted the station said, ‘In my opinion, Percival is a crook.’”
• “Many televangelists in recent years have been shamed by allegations of wrongdoing. It remains to be seen whether Percival will be one of them.”
• “Percival could not be reached to comment on the accusations…”

In reality, the IRS had visited the church, but over a matter related to another church member. Percival always pays his taxes on time.

Percival sues Olson and the newspaper for libel, false light, intentional infliction of mental anguish and appropriation. On which causes of action can he prevail? Address the statements included in Olson’s story. Address Percival’s status as a public/private figure and what fault he must prove. What defenses, if any, does Olson have? Who bears the burden of proof and what must he prove?

Sample Answer
(with points available)

Pastor Percival has several claims, primarily for libel, on which he likely will prevail. Claims under intentional infliction of mental anguish and the privacy torts likely will fail.

Issue No. 1 is whether Olson libeled Percival. Libel is a false (1), defamatory (1) statement of fact (1) published about the plaintiff (1) resulting in damages (1), generally requiring some proof of fault. The statement that Percival “is under investigation for tax fraud” meets those criteria, especially because it is an accusation of an illegal act. “Dragged off reams of incriminating data” also is probably actionable because of the judgment about the content of the data, and “Percival is a crook” is libel per se. It is a statement of fact (1) regardless of whether it’s proceeded by the phrase “In my opinion…” The republication rule applies to the newspaper’s publication of the quote. The other two statements, “Many televangelists…” and “could not be reached,” are statements of opinion and nonlibelous statements of fact, respectively, so not actionable.

The next issue is burden of proof. As plaintiff, Percival must prove all elements of the tort of libel (2), including fault. His burden of proof depends on whether he is a public or private figure. The Supreme Court in Gertz described two types of public figures –- all-purpose public figures and limited-purpose or vortex public figures. Percival’s involvement in the community and his access to the media makes him an all-purpose public figure for the Abilene area. (3)

To prevail in libel cases, public figures must show actual malice (2) on the part of the defendant. Actual malice is not ill will, so Olson’s dislike of televangelists is insignificant or nondeterminative. Rather, Percival must show Olson and the newspaper knew the statements were false or acted with reckless disregard to whether they were false. (2) Reckless disregard is extreme departure from standards journalistic principles. Olson relied on a message from a single anonymous source for his story, did not talk to Percival and made little effort to verify the information. As in Butts, the story was not breaking news. (2) That likely constitutes actual malice. No privileges are available to Olson. (Points awarded, however for discussion of privileges.)

The remaining questions are whether other causes of action arise. False light (2) is publication about an individual that places him in a false light that would be highly embarrassing to reasonable persons. Texas does not accept false light (2) under Cain v. Hearst, so Percival will not prevail. If Texas accepted false light, Percival still would have to prove actual malice. Intentional infliction of mental anguish typically requires “outrageous” statements or acts. (2) Percival likely can’t prove the statements are outrageous and will have a hard time proving intent. He likely can’t prevail. Appropriation is not applicable because Percival’s likeness was not used for commercial purposes. (2)

In sum, Percival has a strong case for libel against Olson and his newspaper.

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