ONE THUMB UP, ONE DOWN:
AT LEAST THEY ARE NOT AFRAID OF VIRGINIA WOOLF
Anyone who reads my blawg posts knows that I am a dedicated critic of the Texas Supreme Court and much of its Friday-morning output. But that doesn’t mean that they always get it wrong, even from my rather idiosyncratic perspective.
The DON'T-OMIT-FROM-THE-OBIT defamation case is a case in point. Dallas Morning News v Tatum (Tex May 11, 2018).
Because freedom of the press should prevail over a grieving families’ choice to use the legal system either to sooth their pain with money they have not earned (tort damages), or to misuse the legal process for some sort of personal and family catharsis. There are surely better ways to cope. The urge to go after the newspaper that they had paid to publish a deceptive obit whose veracity was later questioned by one of its columnists may be understandable, but it should not result in a court-ordered cashout.
Perhaps I could be accused of having a stake in the matter, and being therefore biased. Unlike the Dallas newspaper, however, which is a profit-making outfit, blogging is not a remunerative endeavor, save a dollar here, a dollar there, for some ad clicks on blogs that feature ads.
Yet profitable or not-for-profit, the free flow of information, of ideas, and of opinions is a good thing in itself, a public good, and one worthy of protection. If there is an Amendment to cover that, so much the better. Particularly useful in a situation where fundamental human rights might not otherwise actually be enforceable. To take a broader, more global, view.
That freedom obviously should include minority views and unpopular or officially disfavored views. In fact those are the ones most in need of protection against suppression by the powers that be and those with the means spend money on such an effort, not to mention the State itself. So when the Dallas Morning News wins a free-press/free-speech fight, not-for-profit purveyors of information and opinion benefit too. Those originators of thoughts-turned-into-words who cannot afford a court fight, not to mention one all the way up to the Texas Supreme Court.
And that little-schmuck angle brings me to one of the problems I have with the Supreme Court’s opinion in DMN v. Tate, notwithstanding it coming out in favor of the freedom of the press, which I wholeheartedly support:
There is no mention at all of the numerous amici interjections from the public that are on the losing side.
UNWANTED FRIENDS OF THE COURT, IF NOT FIENDS
Amicus Curiae briefs in the Texas Supreme Court are not uncommon. They are routinely submitted by industry groups, advocacy organizations, or by the State (AG) and attorneys for governmental entities. These amici signal to the Court how they want the court to rule based on how the ruling would affect them. And they are not shy about lobbying for their own vested self-interests.
These briefs are RECEIVED, not FILED, a distinction without a distinction and one of many quirks of Texas civil procedure. Even the intake clerks get it wrong sometimes.
Non-corporate public amicus participation is rare, and such submission to the appellate courts are rarely in compliance with the briefing rules.
But it happened in DMN v TATE. Numerous letters flooded in. They reflect strong feelings about the issue by a number of people. If one letter to the editor counts for a 1,000 that were not written, it is a lot. And that expression of interest is obviously not fueled by the desire to protect vested economic interests.
The stream of correspondence may have been coordinated, perhaps even orchestrated. Be that as it may, many more people than usual bothered to send letters to the High Court to express their sympathies for the Tatums as Plaintiffs, and to use the occasion to denounce the newspaper and its columnist, and accuse them of all sorts of things. People who don’t have a vested interest, as far as one can tell.
And there is more: Some writers had obviously educated themselves enough about to case to find out who was litigating it. At least one found it improper that a former Chief of the Court would argue the Newspaper’s case to his former colleagues on the Court. And there is some more impolite stuff ... stuff that falls under the rubric of conflict of interest, undue influence, grounds for recusal, and perceptions of a rigged adjudication system.
Those voices of dissent should be given a hearing too. They have a bearing on the Court’s legitimacy and standing with the public. Even if attorneys practicing before the Court would not dare make such squeals. That's all the more reason these muffled voices should be heard. No lawyer will speak for them. They would be impugning the integrity of the tribunal, and would risk being ostracized if not disciplined.
LAY-FOLK VENTING SCANNED TO PDF
To its credit, the High Court posted the lay-folk letters on its website, and linked them to the docket.
But in its opinion resolving the case, the High Court ignored them, and instead offered mumbo-jumbo about the “reasonable reader”, some sort of average Jane-'o-Joe Doe that is but a heuristic device for the Court to promulgate its own idea of what it considers reasonable. The Court complemented that with a locution lifted from a Virginia Woolf novel and expounded on the interpretive challenge the selected locution might have posed for a student of Letters, parsing alternative understandings of meanings and implications. Yet another heuristic device. -- Or was it just an ordinary reasonable reader, not a student of high literature? - Mean, in the statistical sense, but completely untethered from demographic or demoscopic reality. Not to mention that the common reader feasts on contemporary material and delves into Woolf only if he has to. To pass the test.
AT LEAST THEY ARE NOT AFRAID OF VIRGINIA WOOLF
This is not to denigrate Mrs. Dalloway and her nonbinding dictum that “a woman must have money and a room of her own if she is to write fiction,” but the opinion here was written by Justice Brown on a state salary and fiction was not exactly on order or on the menu, unless fiction is deemed a suitable euphemism for the inaccurate identification of the cause of death in the Tatums' obituary.
Rather than making a flower-shopping foray into the realm of English letters with Mrs. Dalloway, the Court might have done well to take a closer look at its very own letter box:
Here are a few examples of what some of the nonfictional characters -- some friendly, some not so friendly -- had to say on the issues raised by the Tatum suit-after-suicide case:
SOME NON-STREAM-OF-CONSCIOUSNESS
OFFERINGS OF THE TATUM AMICI, IN THEIR OWN CONCATENATED WORDS
"MEDIA BUYING OFF THE JUDICIARY'
SEEING PERILS OF BUYING AN OBIT
IS THE PAPER REQUIRED TO NOTIFY THE EDITORIAL DEPARTMENT?
POUND OF FLESH JOURNALISM AND MEDIA SENSATIONALISM
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FICTION:
RANGING FROM EUPHEMISTIC OR DECEPTIVE OBIT TO FAKE NEWS
MEDIA KICKING SOMEONE WHEN THEY ARE DOWN
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