In the summer of 2013, we published a story in D Magazine about a Dallas Symphony Orchestra volunteer named José Reyes, whom the DSO had fired with a press release. It was an interesting little tale about the part of Dallas society that’s involved with DSO fundraising parties. Reyes didn’t like the story. He sued the magazine for defamation later that year. Our reply, via our attorneys at Haynes and Boone, was: “This suit is a load of nonsense.” I’m paraphrasing. A trial court did, though, partially side with Reyes. We appealed. Yesterday the Fifth Court of Appeals agreed with us, shooting down all of Reyes’ claims against the magazine. You can read the court’s opinion for yourself. If you work in the media, you really ought to; there’s a lot to be learned. Here’s just a taste:
In his pleading, Reyes identified 15 parts of the story that he contended were defamatory. One of those parts was the headline, which in print read “The Talented Mr. Reyes: How a man of meager means and a mysterious past duped Dallas society.” Pretty good little headline, if I do say so myself. (I wrote it.) The court agreed that I am good at my job. Again, paraphrasing. Here’s what the court actually said (the ellipses are merely where I’ve omitted case citations):
Reyes contends the headline’s reference to his means as “meager” is insulting, and he asserts that in fact his means are “just fine with him.” Likewise, Reyes argues the references to his “mysterious past” and to his “duping Dallas society” inaccurately suggest he was hiding some dark secret or that he engaged in deceptive conduct toward those around him in the DSO. D Magazine responds that the elements of the headline are no more than unverifiable opinions.
To determine whether a statement is fact or opinion, we focuses our analysis on the statement’s verifiability and the entire context in which it was made. … Employing that standard, we agree with D Magazine that a reference to meager means is a subjective opinion, given that an income one person views as meager may be substantial to another. … This kind of description cannot be objectively verified because it amounts to a personal judgment that “rests solely in the eye of the beholder.” … Accordingly, the description is not capable of a defamatory meaning.
As to the remainder of the headline—assertions that Reyes had a mysterious past and that he duped Dallas society—we conclude the headline writer was employing rhetorical hyperbole, an exaggeration employed for rhetorical effect. … Viewed in the context of the article as a whole, we see no discussion of Reyes’s “past” or of any effort on Reyes’s part to trick members of the DSO in any fashion. Although the Article appears to chastise Reyes for describing his work in a call center as “marketing,” to move from that characterization to descriptions of mysteries and trickery can only be seen as extravagant exaggeration. And that kind of rhetorical flourish is not actionable as defamation.
I think I’ll add that description to my Twitter bio. The Court of Appeals in the Fifth District of Texas at Dallas has determined that I am an extravagant exaggerator. That’s quite something.
