David Gerda promoted the passage of a bond issue in Keller ISD and then ran for the school board against incumbent Brad Schofield.  To say that the campaign turned nasty would be an understatement.  The accusations and counter accusations are recounted in detail in a lengthy opinion from the Court of Appeals in Fort Worth.

Oh yes, this one ended up in court. Mr. Gerda lost the suit, and is facing the prospect of reimbursing the people he sued for their attorneys’ fees. He lost the election too.  So if you know someone who is thinking of running for the school board, you might want to let them know about this case.

Mr. Gerda filed the lawsuit against Mr. Schofield and Marie Howard, the president of the local Tea Party and a strong supporter of Mr. Schofield.  Mr. Gerda’s lawsuit accused the two defendants of libel, slander and conspiracy.  Mr. Gerda alleged that the two defendants had falsely and publicly accused him of unethical behavior.

The problem Mr. Gerda encountered in the suit was that all of the criticism he endured came in the heat of a political campaign.  The court concluded that Mr. Gerda, as a candidate for office, was a “public official.”  Under the law of defamation, this meant that he had to show that the statements about him were not only false, but also that they were made with “actual malice.”

He was unable to do that, and thus the court dismissed the case and sent it back to the trial court to assess court costs and attorneys’ fees that Mr. Gerda will be required to pay.

The case provides a good illustration of how difficult it is for a “public official” to get past that “actual malice” standard. Proving that the statements made were false is not good enough.  Proving that the statements were erroneous is not good enough. Proving that the statements were made without the benefit of a thorough fact-checking is not good enough. Proving that some pieces of evidence were ignored, downplayed, or misinterpreted is not good enough. Here’s what you have to prove:

…to establish actual malice a plaintiff must prove that the defendant made the statement “with knowledge that it was false or with reckless disregard of whether it was true or not.”  New York Times, 376 U.S. at 279-80, 84 S.Ct. 710.  Reckless disregard is also a term of art.  To establish reckless disregard, a public official or public figure must prove that the publisher “entertained serious doubts as to the truth of his publication.”  St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)

Mr. Gerda was unable to get over that high hurdle.

The procedural posture of this case is interesting.  After Mr. Gerda filed the suit, the defendants responded with a Motion to Dismiss the case based on the Texas Citizens Participation Act (TCPA).  This is a law that all public officials, including elected school board members, should learn about.  The court tells us that the TCPA “protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.”

Normally, the party who files a Motion to Dismiss will bear the burden of proving to the court that the case should be dismissed. But these TCPA cases don’t work that way. Instead, the defendant simply has to show the court that the suit is based on his or her exercise of free speech. If the defendant does that, the burden shifts to the other guy—the plaintiff--to show “by clear and specific evidence” that there is a basis for each element in the case. Here, Mr. Gerda failed to show good evidence that satisfied the “actual malice” standard.

One more point: the court pointed out that “public officials” are fair game for any accusations that go to their “fitness for office.” That means that accusations of dishonesty, malfeasance and/or improper motivation are permissible, as long as they are not done with “actual malice.” Key Quote:

As the supreme court reminds us, the actual malice standard “honors our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.’”

Yep.  Even in a race for an unglamorous and unpaid position like school board trustee.

The case is Schofield v. Gerda, decided by the Court of Appeals in Fort Worth on May 18, 2017. We found it at 2017 WL 2180709.

DAWG BONE: AND YOU WONDER WHY GOOD PEOPLE DON’T WANT TO RUN FOR SCHOOL BOARD….

Tomorrow: what really happens in the surgery room?