The Dallas Morning News v. Tatum (Tex. 2018) - On the Cutting Edge of Suicide Prevention and First Amendment Burnishing: Defamation-by-Gist and Libel-by-Implication

The Dallas Morning News v. Tatum, No. 16-0098 (Tex. May 11, 2018) (Don't omit-in-the-obit defamation case). 

Hyper-attenuated inferential chains stretching over dozens of pages. 

JURISPRUDENTIAL JEWEL OF THE WEEK:

Defamation by implication, as a subtype of textual defamation, covers both gist and implication.

Got it? If not, you definitely need to read all 41 pages of "gist" analysis delivered by the Texas High Court this morning for elucidation, plus a shorter critique by Justice Boyd that gently pokes fun at it. You will also learn that the distinction between “as-a-whole” gist and “partial” implication is important; that there is a "sting" version of the "gist"; and that the gist has to be substrated out of the totality of the circumstances. Or was that the totality of the context? The proverbial and purely fictitious reasonable-reader character gets a good workout, too, of course. But divining the gist is as much a judicial prerogative as defining who qualifies to be called a Welfare Queen, and whether that may be done without paying. Stay away from Wikipaedia! Read Texas Supreme Court opinions, rather, and keep tuned to what the High Court deems reasonable and unworthy of input by wikipaedia contributors, not to mention linguistics professors, or a jury. 

 
THEN THERE IS THE KUDO VS VODOO STANDARD [roughly paraphrasing it]

The “could” standard avoids one of the problems that the “would” standard creates a reasonable reader “could,” without departing from the constraints that pure logic imposes, follow or construct hyper-attenuated inferential chains that stretch beyond the realm of ordinary semantic meaning.

You didn't fully appreciate that until now, did you? 

AND, AS A BASELINE, THE PRE-EXISTING DEFINITIONS, NOW SUPREMELY  SUPPLEMENTED WITH CONTEMPORARY LEGAL AUTHORITY  

“Gist” refers to a publication or broadcast’s main theme, central idea, thesis, or essence. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 745 (4th ed. 2000) (defining “gist” as “[t]he central idea; the essence”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 959 (2002) (defining “gist” as “the main point or material part . . . the pith of a matter”); Gist, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining  gist as “[t]he main point”). Thus, we use “gist” in its colloquial sense. In this usage, publications and broadcasts typically have a single gist. 

This is the case where the parents of a teen that committed suicide sued the local newspaper and columnist for disclosing the suicide that they had themselves omitted from their obit (in the same newspaper), alleging defamation. The columnist made the disclosure within a well-written and well-meaning opinion piece arguing that suicide should not be concealed and cloaked as a taboo by society, as this may make matters worse and impede prevention and intervention. 

If such writing does not qualify as a meaningful contribution to public discourse, what does? The First Amendment protects unpopular and odious speech. This was quite mainstream and tempered.    

  Here is the text of the column:

APPENDIX

So I guess we’re down to just one form of death still considered worthy of deception.
I’m told there was a time when the word “cancer” was never mentioned. Oddly, it was
considered an embarrassing way to die.
It took a while for honesty to come to the AIDS epidemic. Ironically, the first person I
knew to die of AIDS was said to have cancer.
We’re open these days with just about every form of death except one — suicide.
When art expert Ted Pillsbury died in March, his company said he suffered an apparent
heart attack on a country road in Kaufman County.
But what was apparent to every witness on the scene that day was that Pillsbury had walked
a few paces from his car and shot himself.
Naturally, with such a well-known figure, the truth quickly came out.
More recently, a paid obituary in this newspaper reported that a popular local high school
student died “as a result of injuries sustained in an automobile accident.”
When one of my colleagues began to inquire, thinking the death deserved news coverage,
it turned out to have been a suicide.
There was a car crash, all right, but death came from a self-inflicted gunshot wound [page
break] in a time of remorse afterward.
And for us, there the matter ended. Newspapers don’t write about suicides unless they
involve a public figure or happen in a very public way.
But is that always best?
I’m troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not
outright deception.
Some obituary readers tell me they feel guilty for having such curiosity about how people
died. They’re frustrated when obits don’t say. “Morbid curiosity,” they call it apologetically.
But I don’t think we should feel embarrassment at all. I think the need to know is wired
deeply in us. I think it’s part of our survival mechanism.
Like a cat putting its nose to the wind, that curiosity is part of how we gauge the danger
out there for ourselves and our loved ones.
And the secrecy surrounding suicide leaves us greatly underestimating the danger there.
Did you know that almost twice as many people die each year from suicide as from
homicide?
Think of how much more attention we pay to the latter. We’re nearly obsessed with crime.
Yet we’re nearly blind to the greater threat of self-inflicted violence.
Suicide is the third-leading cause of death among young people (ages 15 to 24) in this
country.
Do you think that might be important for parents to understand?
In part, we don’t talk about suicide because we don’t talk about the illness that often
underlies it—mental illness.
I’m a big admirer of Julie Hersh. The Dallas woman first went public with her story of
depression and suicide attempts in my column three years ago.
She has since written a book, Struck by Living. Through honesty, she’s trying to erase
some of the shame and stigma that compounds and prolongs mental illness.
41
Julie recently wrote a blog item titled “Don’t omit from the obit,” urging more openness
about suicide as a cause of death.
“I understand why people don’t include it,” she told me. “But it’s such a missed opportunity
to educate.”
And she’s so right.
Listen, the last thing I want to do is put guilt on the family of suicide victims. They already
face a grief more intense than most of us will ever know.
But averting our eyes from the reality of suicide only puts more lives at risk.
Awareness, frank discussion, timely intervention, treatment—those are the things that save
lives.
Honesty is the first step.

See Steve Blow, Shrouding suicide in secrecy leaves its danger unaddressed, THE DALLAS
MORNING NEWS (July 12, 1010), https://www.dallasnews.com/news/news/2010/07/12/20100620-
Shrouding-suicide-in-secrecy-leaves-its-9618.

ORDERS ON CAUSES
16-0098	THE DALLAS MORNING NEWS, INC. AND STEVE BLOW v. JOHN TATUM AND MARY ANN TATUM; from Dallas County; 5th Court of Appeals District (05-14-01017-CV, 493 SW3d 646, 12-30-15)
	respondents' motion for sanctions denied The Court reverses the court of appeals' judgment and renders judgment. Justice Brown delivered the unanimous opinion of the Court with respect to Parts I, II, III.B, and IV, the opinion of the Court with respect to Part III.A, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined, and an opinion with respect to Part III.C, in which Chief Justice Hecht and Justice Johnson joined. Justice Boyd delivered a concurring opinion, in which Justice Lehrmann and Justice Blacklock joined. View Electronic Briefs | Oral Argument | Video