Libel! The nogoodniks libeled me!! What do I do???

“Defamation” is defined by the online dictionary as “the act of damaging the good reputation of someone.”  It comes in two forms.  If you do it in writing, we call it “libel.”  If it is purely verbal, it is “slander.”

Not all defamatory statements are legally actionable.  That’s because there are all sorts of exceptions and defenses, the most frequently cited one being: “but it’s the truth.”  In other words, if you write or say something about someone that damages their good reputation, but is true, then it is “defamatory” but it is not legally actionable.  Your suit for slander or libel will fail.

You can also say pretty much whatever you want about a person if it is couched in terms of an opinion, rather than a factual statement.  To say “Our superintendent has a criminal record” is an assertion of a fact. If the statement is not true, it could be legally actionable. But to say “Our superintendent strikes me as a shady character” is an opinion.  Not actionable.

We offer this brief primer on the law of defamation to introduce you to the case of Kirk v. Plano ISD.  Mr. Douglas Kirk felt that he had been defamed by the PISD and four of its employees.  The court’s opinion tells us nothing about the factual background, so we don’t know who said what, and why Mr. Kirk felt that he had been defamed. Acting without the benefit of legal counsel, Mr. Kirk filed a libel suit against the district along with the board president, a principal, a teacher, and the director of safety and security.

The trial court tossed the case out before it got off the ground, and the Court of Appeals affirmed that decision.  Mr. Kirk thus learned a lesson about governmental immunity.  The district’s attorneys first filed a Motion asking the court to dismiss the four individuals.  The court did so.  We have a law in Texas that requires plaintiffs to decide whether to sue the school district, or the individuals who work for the school district. You can’t do both. Citing an earlier case, the court noted that “A plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually because the decision regarding whom to sue has irrevocable consequences.”  Texas Bay Cherry Hill, L.P. v. City of Fort Worth.  257 S.W.3d 379 at 401 (Tex. App.—Fort Worth 2008, no pet.).

Next, PISD lawyers asked the court to dismiss the case against the district as well, claiming that the court had no jurisdiction.  Again, the court agreed with this. This was based on governmental immunity: “When a plaintiff sues a governmental entity or official, he faces the threshold hurdle of affirmatively demonstrating the trial court’s jurisdiction by alleging a valid waiver of governmental immunity.”  Mr. Kirk could not get over that hurdle.  School districts have immunity from suits based on libel or slander.  The Texas Tort Claims Act lays out the very limited circumstances in which a school district’s immunity is waived. Those involve the negligent use or operation of a motor vehicle—not defamatory statements by school employees.

The case of Kirk v. Plano ISD was decided by the Court of Appeals in Austin on February 3, 2016.  We found it at 2016 WL 462742.