In 1991, Wayne Dolcefino, a local Houston television reporter for KTRK-TV Channel 13, aired an investigative report concerning a candidate in Houston's mayoral race, Sylvester Turner. Dolcefino's story, implying fraud, cover-up, and illegal activities on Turner's part, ran one week before the election and most likely cost Turner the seat he sought. Turner sued for libel and won, the jury finding Dolcefino liable of actual malice under the standard set by New York Times Co. v. Sullivan and further defined by five later cases. Dolcefino is appealing the decision and it is likely that he will ultimately win, as 80% of jury decisions in actual malice cases are overturned.

Libel of a public figure is very difficult to prove, as much freedom is granted to the press in order to preserve the protections of the First Amendment. Turner had to prove that Dolcefino either knew the story he aired was false or that he had a "reckless disregard" as to whether or not it was indeed false. And this is the reason that the decision may not stand: juries tend to side with the plaintiff, often finding them wronged and maligned, even though the rule of law states that they must go that step further, almost implying that the reporter had a vendetta to settle.

Actual malice is an area of law very loosely defined by the Supreme Court, leaving much up to the lower courts to try to work up a formula or standard upon which to base these decisions. It seems hardly fair, though, and perhaps a violation, that a jury verdict is so easily and routinely overturned, calling into question the protection of the First Amendment with the guarantees of the Seventh. If we do not think our juries capable of understanding the standards of libel and malice, perhaps all cases should be decided by judicial review. The odds seem to favor the defendant. At best, he hopes for summary judgment, at worst, a reversal by a higher court.

The following is meant to be a basic and introductory study guide to a very broad and, at times, confusing area of law. It will provide a review of cases that have shaped this issue as well as a number of secondary sources that will serve as interpretative aids. Finally, it will list some articles providing citations for the Dolcefino/Turner case specifically, as this is what peaked my interest and may make these issues more tangible when viewed in the context of a recent and yet ongoing case. These cases and all other items listed, as well as numerous more, will be found by consulting print indexes under libel, malice, or damages and electronic databases under a combination of these keywords. A search of West topic "Libel and Slander," key number 71, will also be a useful finding tool.

United States Constitution

First Amendment: granting freedom of speech and of the press.
Fourteenth Amendment: extending these rights to the states.
Seventh Amendment: granting a right to a trial by jury.

Supreme Court Cases

New York Times Co. v. Sullivan, 376 U.S. 254(1964). Established "actual malice"
standard in public official libel cases.

Curtic Publishing Co.v.Butts, 388 U.S. 130(1967). Extended New York Times Co. v.
Sullivan to "public figures."

Gertz v. Robert Welch Inc., 418 U.S. 323(1974). Further defined who is and is not
a public figure.

Time, Inc. v. Firestone, 424 U.S. 448(1976).

Hutchinson v. Proxmire, 443 U.S. 111(1979).

Wolston v. Reader's Digest Ass'n, 443 U.S. 157(1979).

The last three are case specific, further defining public figure and finding that one must
"thrust" themselves into a controversy to qualify, not merely be a "known" person.

Federal Rules

USCS Fed R. Civ. P., 56(nn. 507-509) (Law. Co-op 1986). Summary judgment rule, with
attention called to malice, reckless disregard, and public figure as plaintiff subsections.

Texas Cases

Foster v. Upchurch, 624 S.W. 2d 624(Tex. 1981).

Carr v. Brasher, 776 S.W. 2d 567(Tex 1989).
Both state plaintiff must show defendant acted with "reckless disregard" not just ill will.

San Antonio Express News v. Dracos, 922 S.W. 2d 242(Tx. Ct. App. 1996).
Defines who is a public figure.

Texas Statutes

Civ. Prac. & Rem., sec. 73.001-006 (West 1997). Lists the elements of libel and malice,
calling attention to public figures.

Civ. Prac. & Rem., sec. 41.001-013 (West 1997). Texas law stating damage award
amounts for various lawsuits, including malice.

Annotated Law Reports

Tracy A. Bateman, Annotation, Who is "Public Figure" for Purposes of Defamation
Action," 19 A.L.R. 5d(1994).

Annotation, Libel and Slander: What Constitutes Actual Malice, Within Federal

Malice," 20 A.L.R. 3d(1968).
These annotations define public figures and public official and distinguish who, exactly,
falls into these categories. They both provide rich case histories and analysis.

Legal Encyclopedia

50 Tex. Jur. 3d Libel and Slander, secs. 42,121,129(Bancroft-Whitney 1986).

Defines malice, listing relevant federal and state cases. Section 121 pays special attention
to actual malice and public figures.

Law Journals

Marc. E. Sorini, Factual Malice: Rediscovering the Seventh Amendment in Public
Person Libel Cases, 82 GEO. L. J. 563(1993).

Nat Stern, Unresolved Antitheses of the Limited Public Figure Doctrine, 33 HOUS.
L. REV. 1027(1996).

Harry W. Stonecipher & Don Sneed, A Survey of the Professional Person as Libel
Plaintiff: Reexamination of the Public Figure Doctrine, 46 ARK. L. REV. 303(1993).

Erik Walker, Defamation Law: Public Figures - Who Are They? 45 BAYLOR L. REV.
955(1993).
Retrieved through Legaltrac by searching "libel and public and (figure* or official*)." The
ALLREV library on Lexis will find the same articles.

Words and Phrases

Words and Phrases, Permanent Edition (West 1955 and Supp.1997). Vol.2, "Actual
Malice," vol. 35 "Public Figure" and "Public Official" and vol. 40A "Summary Judgment."
Good starting point to get a basic familiarity with the concepts involved in actual malice,
and it can act as a spring board to other topics.

Loose-Leaf Services

Law of Defamation, Smotta, Rodney A., West, St. Paul, MN 1997.

Libel and Privacy, Second Edition, Sanford, Bruce W., Aspen Law and Business,
New York, NY 1998.

Texas Torts and Remedies, Matthew Bender & Co., New York, NY 1997.
Consult the indexes for exact references.

Restatement

RESTATEMENT (SECOND) OF TORTS: DEFAMATION OF A PUBLIC
OFFICIAL OR PUBLIC FIGURE sec. 580A(1977).

Books

Norm Goldstein, ed. The Associated Press Stylebook and Libel Manuel, Sixth
Edition, Addison-Wesley, MA 1996.

W. Wat Hopkins, Actual Malice: Twenty-five Years After Times v. Sullivan,
Praeger, NY 1989.

Anthony Lewis, Make No Law: the Sullivan Case and the First Amendment,
Random House, NY 1991.

Libel Law Under the Constitution: Marking the Twentieth Anniversary of New
York Times Co. v. Sullivan, American Bar Association, Washington DC 1984.

Searching the online catalogs of the local law schools, University of Houston and
Texas A&M Law Center, under the keywords malice, libel, or Sullivan will provide a good
bibliography.

Newspaper Articles on the Turner/Dolcefino Case

George Flynn, Judgment in KTRK Case Upheld, Hous. Chron., Dec. 20, 1996, at A44.

George Flynn & Julie Mason, Turner's Win Might not Stand/Experts Describe Case for
Reversal, Hous. Chron., Oct. 16, 1996, at A23.

Mike McDaniel, The Turner Verdict/Turner Award Big, but Lasting Effects Unlikely,
Hous. Chron. Oct. 15, 1996, at A13.

George Flynn, Et. al., Turner Wins Libel Lawsuit/Damages Total $5.55 Million, Hous.
Chron., Oct. 15, 1996, at A1.

Retrieved through the Houston Chronicle CD-ROM, available through Newsbank, and
Houston Chronicle Interactive (http://www.chron.com).

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