The Opinion Was Not Issued on a Free CD-ROM

Last summer, the Dallas Court of Appeals rendered judgment in favor of television reporter Brett Shipp on a motion to dismiss under the Texas Citizens Participation Act. The plaintiff in that case, Dr. Richard Malouf, is back in the Court of Appeals with another pair of defamation cases involving the TCPA. This time, Malouf and his wife sued AOL, Inc. and its reporter for publishing an allegedly defamatory story concerning a backyard water park being built while Malouf was “charged” with millions of dollars in Medicaid fraud. Malouf claimed that was defamatory because he had never been “charged” with fraud in any criminal proceeding.

Because the statements related to matters of public concern — namely, allegations of defrauding taxpayers and the provision of dental services to the public — the TCPA shifted the burden to the Maloufs to establish a prima facie case for each element of the defamation claim by clear and specific evidence. The Court of Appeals held that they had failed to do so. Because the defendants were acting as members of the media, the Maloufs had to prove that the statements were actually false. The Court of Appeals held that the words “charged” and “stolen’ did not improperly suggest criminal charges or activity when Malouf had been sued under civil law for the alleged conduct several times. Therefore, a person of ordinary intelligence would not perceive the article’s claims to be more damaging to Malouf’s reputation merely because the article omitted to distinguish between civil and criminal proceedings. The Court of Appeals reversed and rendered in favor of AOL, affirmed dismissal as to the reporter, and remanded to the trial court for determination of AOL’s attorney fees and expenses.

AOL, Inc. v. Malouf, No. 05-13-01637-CV

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