Paul Watler's Perspective

The same red-flag words may yield vastly different results in defamation litigation. Two recent Texas rulings serve as another reminder.

Case one. You're the mayor. Your opponent claims you're a drug dealer and a murderer. Your reputation is slammed in a city council meeting and on television. Think you have a defamation claim? Think again, says the Texas Supreme Court.

Case two. You're a prominent attorney and your wife is the owner of a popular local business. You're wrongly accused of murder, drug abuse and pedophilia. You're attacked in anonymous Internet postings. Think you have a defamation claim? Sure, says a Texas jury.

In the first case, the mayor's award of $30,000 by a jury was reduced by the Supreme Court to zero—at least until another trial. In the same week in case two, a jury in a lower Texas court awarded $13.7 million to the couple defamed in the anonymous postings.

Can these cases be reconciled? Maybe, maybe not.

Norberto Salinas, the mayor of Mission, Texas, sued Maria Salinas (no relation) for slander. Ms. Salinas stated in a city council meeting that Mayor Salinas was a killer. She told a third party he was a drug dealer. Then she went on television to proclaim that the mayor had made a threat to kill her.

In the mayor's case, the judge found the statements to be defamatory per se and the jury found the statements were false and made with actual malice. But the mayor proved no damages other than mental anguish: no lost income or business or employment opportunities. In vacating the $30,000 damage award to the mayor, the Supreme Court held, "Even if some mental anguish can be presumed in cases of defamation per se … the law does not presume any particular amount of damages beyond nominal damages." The amount of such damages is an inquiry left to the jury. The case was remanded for further proceedings for another jury to make that determination.

In the anonymous web case, the plaintiff couple from Clarksville, Texas had real, measurable damages. They showed more than mere mental anguish that flows from outrageously defamatory statements. Among other things, the wife lost her business, a successful hair salon and spa. The couple was separately pursuing a malicious prosecution action after they were acquitted in an earlier trial of criminal charges of sexual assault. When the source of the anonymous postings was revealed, it traced back to a computer at a business owned by the spouse of the couple's accuser in the sexual assault case.

The Texas Supreme Court did not make new law in the mayor's case. Indeed, the Court cited precedent from more than 40 years ago in holding that a finding of defamation per se can only support a nominal damage award in the absence of proof beyond presumed injury to reputation. That same precedent may come into play should the couple's case reach the court. Needless to say, $13 million is an unusually large damage award in a case not involving severe physical injury or death. Stay tuned to see if the mega-verdict will stand up if appealed.

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.