Supreme Court of Texas
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No. 22-0103
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Polk County Publishing Company and Valerie Reddell,
Petitioners,
v.
Tommy Lamar Coleman,
Respondent
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On Petition for Review from the
Court of Appeals for the Ninth District of Texas
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Argued September 14, 2023
JUSTICE BLACKLOCK delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Busby,
Justice Bland, Justice Huddle, and Justice Young joined.
Justice Boyd concurred in the judgment and joined the opinion of
the Court as to Part III.C.
In June 2020, a small newspaper in Polk County ran a story
criticizing a local assistant district attorney named Tommy Coleman.
Most of the article criticized the Williamson County District Attorney’s
office, where Coleman previously worked, for its involvement in the
infamous wrongful conviction of Michael Morton. Among the article’s
claims about Coleman was the statement that he “assisted with the
prosecution of Michael Morton” while a prosecutor in Williamson
County. The 1987 conviction of Michael Morton, which involved
prosecutorial misconduct in the handling of evidence, happened long
before Coleman started practicing law. Morton was exonerated in 2011
after spending nearly 25 years in prison.
Coleman sued for defamation, claiming that the article’s
statement that he “assisted with the prosecution of Michael Morton” was
false and defamatory. At this stage of the proceedings, he does not
challenge the accuracy of anything else in the article. The article
described an episode in which Coleman, while a prosecutor for
Williamson County, was heard in the courtroom during a post-conviction
hearing mocking requests by Morton’s attorneys for DNA testing of the
piece of evidence that eventually exonerated Morton: “‘Ewww! Bloody
bandana! Bloody bandana,’ Coleman is reported as saying in a
demeaning tone during a hearing in September 2011.” This regrettable
episode, the veracity of which Coleman does not contest at this stage of
the case, was the only factual detail the article offered to describe the
way in which Coleman “assisted with the prosecution of Michael
Morton.”
The defendants now contend, among other arguments, that the
challenged statement is not actionably false. As explained in more
detail below, we do not determine the truth or falsity of the article’s
statement that Coleman “assisted with the prosecution of Michael
Morton” by asking whether the statement is a legally precise
characterization of the role Coleman played as an attorney in the sad
2
saga of Michael Morton’s prosecution and exoneration. Instead, this
Court’s precedent requires that we judge the truth or falsity of an
allegedly defamatory statement by identifying the “gist” of what the
statement conveys about the plaintiff to a reasonable reader of the entire
article. If the gist of the challenged statement, within the context of the
article as a whole, is true, then the statement is considered substantially
true and therefore not actionable—even if the statement errs in the
details.
As explained below, we conclude that, in its context, the article’s
claim that Coleman “assisted with the prosecution of Michael Morton”
was substantially true given Coleman’s public involvement in his office’s
efforts to keep Morton behind bars by resisting DNA testing of the
“bloody bandana.” The statement is therefore not actionably
defamatory, and Coleman’s claims should be dismissed.
I.
A.
Tommy Coleman is a career prosecutor. From 2008 to 2012, he
served as an assistant district attorney in the Williamson County DA’s
office. That office wrongfully prosecuted Michael Morton for murder in
the 1980s and then resisted later efforts to determine Morton’s
innocence, efforts which culminated in Morton’s exoneration in 2011. 1
1 The long history of the Morton case has been widely reported.See,
e.g., Pamela Colloff, The Innocent Man, Part One, TEXAS MONTHLY, November
2012, https://www.texasmonthly.com/true-crime/the-innocent-man-part-one;
Pamela Colloff, The Innocent Man, Part Two, TEXAS MONTHLY, December
2012, https://www.texasmonthly.com/true-crime/the-innocent-man-part-two.
3
In 1986, Morton’s wife Christine was found bludgeoned to death
in bed in the couple’s Austin home. Williamson County prosecutors
charged Morton with the murder. During the investigation, a bloody
bandana was found at a construction site about 100 yards from the
Mortons’ home. The Williamson County DA’s office never DNA tested
the bandana or turned it over to Morton’s defense attorneys. Morton
was convicted of his wife’s murder and sentenced to life in prison in
1987. All along, he maintained his innocence.
Beginning in 2005, Morton’s attorneys sought access to
potentially exculpatory evidence previously withheld by prosecutors,
including the bloody bandana. In 2010, after years of opposition by
Williamson County prosecutors, a court ordered DNA testing of the
bloody bandana. The DNA on the bandana matched that of a convicted
felon from California named Mark Alan Norwood. Norwood had a
criminal record in Texas and lived in the state at the time of Christine
Morton’s murder. The same DNA was found at the murder scene of
Debra Baker in Travis County in 1988, after Christine Morton’s murder.
Because of the DNA testing, Michael Morton was exonerated, and Mark
Norwood was convicted for the murders of both Christine Morton and
Debra Baker.
Morton was released from prison in 2011, almost 25 years after
his wrongful conviction. Tommy Coleman was a Williamson County
Assistant District Attorney at the time of Morton’s exoneration and
The parties do not dispute any of this background information about the
Morton case, some of which may be outside the record but which we provide
for context.
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during the post-conviction proceedings that precipitated the DNA
testing of the exonerating bandana. The newspaper article in question
reports that, in the courtroom during one of Morton’s post-conviction
hearings, Coleman was heard demeaning Morton’s efforts to prove his
innocence: “Ewww! Bloody bandana! Bloody bandana . . . .” At this
stage of the litigation, Coleman does not dispute this episode. Instead,
he maintains that, despite his courtroom comments, he did not “assist”
in Morton’s post-conviction proceedings because he never argued in
court, signed pleadings, discussed case strategy, or gave any public
statements or interviews in the Morton case.
The disputed article reports that Coleman left his position in
Williamson County in 2012 after a new DA decided to revamp the office
by replacing prosecutors she believed were trained in the practices that
led to Morton’s wrongful conviction. Coleman has not contested this
characterization of events. At the time of the article, Coleman was a
prosecutor in Polk County, but his counsel stated at oral argument that
Coleman has now moved to a different DA’s office.
B.
On June 18, 2020, the Polk County Enterprise, a newspaper in
Polk County, published a story by Valerie Reddell titled, “Battle lines
drawn over prosecutor’s conduct.” The article’s first paragraph refers to
“one of the worst episodes of wrongful conviction in the history of Texas
jurisprudence” and then says that “one of the prosecutors in this case
made a soft landing in the Polk County Criminal District Attorney’s
Office.” The article’s second paragraph states: “Prior to his arrival in
Livingston, Tommy Lamar Coleman assisted with the prosecution of
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Michael Morton during his tenure at the Williamson County District
Attorney’s Office.” This statement—that Coleman “assisted with the
prosecution of Michael Morton”—is the focus of the parties’ arguments.
Most of the remainder of the article describes the history of the
Morton case in a way that is sharply critical of the Williamson County
DA’s office. The article recounts Coleman’s controversial courtroom
utterance, which is described as follows:
Coleman is singled out in media reports for mocking
requests to test that bandana for DNA.
“Ewww! Bloody bandana! Bloody bandana,” Coleman is
reported as saying in a demeaning tone during a hearing
in September 2011.
The article contains no other factual details supporting its initial
statement that Coleman “assisted with the prosecution of Michael
Morton.” The last few paragraphs of the article vaguely allege other
instances of possible misconduct by Coleman, though the import of these
paragraphs is unclear. Coleman does not complain about these
additional allegations.
Needless to say, the article did not please Coleman. He posted
the article to his Facebook page with the statement, “I think someone
just bought me a new Corvette today. I will be sure to put their names
on the personalized plates.” His then-boss, Polk County District
Attorney Lee Hon, published a letter in the Enterprise defending
Coleman. Coleman claims the article was written by Reddell as
retaliation for Coleman’s recent social media activity, which apparently
either criticized the Enterprise, supported one of its competitors, or both.
The content of Coleman’s social media posts is not in the record, but the
day after the posts, Reddell called Coleman to complain about them.
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Reddell suggested the Enterprise might take legal action, and she asked
Hon to discipline or fire Coleman. Reddell’s allegedly defamatory article
criticizing Coleman appeared in the Enterprise a few days later.
On June 25, 2020, Coleman’s attorneys sent a demand letter to
Reddell and to Polk County Publishing Company, which owns the
Enterprise. The letter demanded the Enterprise publish a retraction on
the top of the front page and provided language for the retraction.
Coleman posted about the demand letter on his “Tommy Coleman for
Polk County” Facebook page.
On July 2, 2020, the Enterprise ran a front-page “Correction”
titled “Coleman not involved in Morton trial and prosecution.” The
five-sentence correction stated that the original article
“mischaracterized” Coleman’s role at the Williamson County DA’s office
because Coleman was not licensed as a lawyer until 2002 and “was not
involved in the initial trial and prosecution of Michael Morton in 1987.”
It closed with an acknowledgment that “[t]he proceedings that took
place between 2005 and 2011 should not have been referred to as
‘prosecution.’ We regret the error.” Coleman posted the correction on
his Facebook page.
In August 2020, Coleman sued for defamation. The defendants
moved to dismiss the suit under the Texas Citizens Participation Act.
The motion made several arguments, including that the challenged
statement was not actionably false. The trial court denied the TCPA
motion.
The court of appeals affirmed. 668 S.W.3d 385 (Tex. App.—
Beaumont 2021). It held that: (1) Coleman was not a limited purpose
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public figure; (2) Coleman established the article’s falsity for TCPA
purposes; and (3) Coleman did not need to show damages because the
article amounted to defamation per se. Id. at 393–94, 398. The
defendants petitioned for review in this Court, and we granted the
petition.
II.
A.
As an initial matter, there is no dispute that the TCPA applies.
Coleman filed this suit in response to the Enterprise’s publication of a
story about matters of public concern. See TEX. CIV. PRAC. & REM. CODE
§ 27.003(a). The Morton case is plainly a matter of public concern. So
are questions about the character and fitness of the prosecutors
employed by the Polk County District Attorney’s office, a matter of great
public concern to the citizens of Polk County. Unlike some TCPA
appeals, this is exactly the kind of lawsuit—by a government official
against a reporter in response to a critical news story—that all can agree
has been subjected by the Legislature to early testing of its merits and
to early appeals.
To avoid TCPA dismissal, Coleman had to “establish[] by clear
and specific evidence a prima facie case for each essential element of”
his defamation claim. Id. § 27.005(c). One such element is “the
publication of a false statement of fact” by the defendant. Dall. Morning
News, Inc. v. Tatum, 554 S.W.3d 614, 623 (Tex. 2018). Among other
arguments, the defendants contend that Coleman cannot establish that
the article’s statement that he “assisted with the prosecution of Michael
Morton” is actionably false. Because we agree, we hold that Coleman’s
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defamation claim should have been dismissed, and we do not reach the
defendants’ remaining arguments.
B.
Establishing the falsity of an allegedly defamatory article is not
as simple as showing that the article contains a statement that falls
short of literal truth. “A statement need not be perfectly true; as long
as it is substantially true, it is not false.” KBMT Operating Co. v. Toledo,
492 S.W.3d 710, 714 (Tex. 2016). Assessing substantial truth requires
more than merely asking whether one statement plucked from a lengthy
article is true or false. Instead, “the meaning of a publication, and thus
whether it is false and defamatory, depends on a reasonable person’s
perception of the entirety of a publication and not merely on individual
statements.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex.
2000). An allegedly defamatory article is substantially true if its “gist”
is correct, regardless of whether it “err[s] in the details.” Tatum, 554
S.W.3d at 629 (quoting Neely v. Wilson, 418 S.W.3d 52, 63–64 (Tex.
2013)). In other words, a news article “with specific statements that err
in the details but that correctly convey the gist of a [true] story is
substantially true” and therefore not actionable. Neely, 418 S.W.3d at
63–64.
Identifying the gist of an allegedly defamatory publication is a
question of law for the court. See Turner, 38 S.W.3d at 114 (“Whether a
publication is capable of a defamatory meaning is initially a question for
the court.”). Courts determine an article’s “gist or meaning by
examining how a person of ordinary intelligence would view it.” Neely,
418 S.W.3d at 64. This inquiry is objective and asks how a “hypothetical
9
reasonable reader” would understand the article, not how any particular
reader actually understood it. New Times, Inc. v. Isaacks, 146 S.W.3d
144, 157 (Tex. 2004). With respect to spoken defamation, also called
slander, we have described the “hypothetical reasonable reader” test as
the “average listener” standard. McIlvain v. Jacobs, 794 S.W.2d 14, 16
(Tex. 1990).
III.
Coleman’s allegation of falsity focuses on the article’s statement
that Coleman “assisted with the prosecution of Michael Morton.” To
demonstrate the statement’s falsity, Coleman averred that he was not a
licensed lawyer when Morton was convicted in 1987; that he was only a
prosecutor in the Williamson County DA’s office from 2008 to 2012; and
that, while there, he never appeared as counsel, signed court filings,
discussed case strategy, argued in court, or gave any public statements
or interviews in the Morton case.
At the outset, we note that two different phases of the Michael
Morton “case”—separated by roughly 25 years—are at issue here: (1) the
initial prosecution and conviction in the mid-1980s, and (2) the
post-conviction proceedings in 2010–11 that precipitated Morton’s
exoneration. Coleman argues that the challenged statement
misrepresents his involvement as to both phases of the case, which we
address in turn.
A.
Coleman’s principal complaint concerns the earlier phase of the
Morton case. In his view, the article falsely communicates that he
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participated in the notoriously flawed initial prosecution and conviction
of Morton in the 1980s.
We begin, therefore, by asking what a reasonable reader would
understand the article, as a whole, to convey about Coleman’s
involvement in Morton’s initial prosecution and conviction in the 1980s.
The answer is nothing. For the following reasons, the gist of the article
does not communicate to the reasonable reader that Coleman
participated in the initial prosecution of Michael Morton in the 1980s.
The entirety of the article recounts the 25-year history of the
Michael Morton “case.” Absent from the article is any sense of the
procedural distinction between the “prosecution” phase and the
“post-conviction” phase of Michael Morton’s decades-long “case.” The
article is written from a non-lawyer perspective that does not approach
the story in terms of the distinction between these two procedural
postures and, instead, simply sees one long, sad Michael Morton “case.”
This is an eminently reasonable perspective, although a legally
imprecise one. 2 Indeed, even lawyers keenly aware of the procedural
distinctions might colloquially call the entire episode—from arrest, to
conviction, to exoneration, to remuneration—“the Michael Morton case.”
2 Unlike the article, the correction published by the Enterprise
acknowledges the procedural distinction between prosecution and
post-conviction proceedings and therefore the technical inaccuracy of the
article’s use of the word “prosecution”: “The proceedings that took place
between 2005 and 2011 should not have been referred to as ‘prosecution.’ We
regret the error.” While the Enterprise’s decision to publish the correction may
amount to the paper’s admission that its story “erred in the details,” such a
correction is not an admission that the article lacked substantial truth. See
Tatum, 554 S.W.3d at 629 (distinguishing between a publication that is not
substantially true and a publication that merely “err[s] in the details”).
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In these colloquial terms—terms surely more familiar to the ordinary
reader than criminal-procedure terminology—one side in the
decades-long “case” is Morton, and the other side of the “case” is the
Williamson County prosecutors, i.e., the “prosecution.”
When referencing the entire history of the Morton “case,” many
reasonable non-lawyers—and even some lawyers—might very well refer
to the Williamson County DA’s decades-long effort to put Morton in
prison and keep him there as the “prosecution” of Michael Morton.
Again, the author appears to have employed the legal terms
“prosecution” and “case” in this imprecise but not unreasonable way.
Nothing in the article suggests to the reasonable reader that, in the
article’s re-telling of the case’s entire history, a procedural distinction is
contemplated between the 1980s “prosecution” and the 2010–11
post-conviction proceedings. Because the article gives no indication that
it is speaking with this procedural distinction in mind, its statement
that Coleman “assisted with the prosecution of Michael Morton” does
not convey to the reasonable reader that Coleman assisted in any
particular aspect of the 25-year effort by Williamson County prosecutors
to obtain and maintain Morton’s imprisonment.
The article thus treats the entire regrettable Morton episode as
one “case,” in which anyone who participated on the Williamson County
side “assisted with the prosecution” of Michael Morton. The reasonable
reader who is unfamiliar with the procedural distinctions would have no
reason to assume from what the article says about Coleman that he was
involved in the initial prosecutorial misconduct in the 1980s. The only
detail of Coleman’s “assistance” recounted in the article is his snide
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courtroom comment in 2011, a detail which gives the reader no reason
to assume that Coleman also participated 25 years earlier in the
long-past history of the case.
Of course, many reasonable readers are familiar with the relevant
procedural distinctions. 3 Such readers would pick up on, as do we, the
non-lawyer author’s conflation of the various procedural phases of the
Morton saga. The only detail provided about Coleman’s “assistance” is
his mocking statement during the post-conviction proceedings 25 years
later, and nothing in the article suggests he had any earlier involvement
in the case—other than, perhaps, the disputed word “prosecution.” But
even the reasonable reader who understands the procedural significance
of that word would not necessarily assume that the author of this news
article is using the word in a legally precise sense. In fact, anyone who
appreciates lawyerly precision has probably read plenty of news stories
about legal affairs that gloss over lawyerly distinctions or contain
inadvertent mischaracterizations of legal or procedural concepts. These
journalistic imprecisions are not to be applauded, and they certainly can
mislead the average reader in some cases. But errors of law by those
reporting on the law are not automatically actionable as defamation. If
it were otherwise, the “freedom . . . of the press” would be hard-pressed
indeed. See U.S. CONST. amend. I (protecting the “freedom . . . of the
press”).
3 We need not labor over whether the hypothetical reasonable reader
thinks in terms of these procedural distinctions, because neither the
reasonable reader who does think in those terms nor the reasonable reader
who does not would understand this article to allege that Coleman participated
in the initial prosecution of Morton in the 1980s.
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As always, the question is whether the gist of the article, as a
whole, communicates defamatory falsehoods about the plaintiff to the
reasonable reader. Scripps NP Operating, LLC v. Carter, 573 S.W.3d
781, 790 (Tex. 2019). Here, a reader who is sensitive to the procedural
distinctions with which Coleman is concerned would be the first to
understand that the article itself is not concerned with those
distinctions. In fact, the more procedurally sensitive reader would be
the most likely to understand the lengthy procedural timeline—under
which Coleman’s courtroom comments came 25 years after Morton’s
conviction—and would therefore be very unlikely to assume from
Coleman’s involvement in 2011 that he was also involved in the 1980s.
In sum, a reasonable reader of the entire article would not gather
from the article’s statement that Coleman “assisted with the
prosecution” that he was involved in any particular aspect of the Michael
Morton “case” during any particular time. Instead, viewing the article
as a whole, the report that Coleman mocked the exonerating evidence in
the courtroom while he was employed by the DA’s office is the specific
factual detail the article provides to support its general statement that
Coleman “assisted with the prosecution.” The article does not convey to
the reasonable reader that Coleman participated in some other, earlier
aspects of the Morton prosecution. Rather, its gist is that Coleman’s
“assist[ance] with the prosecution of Michael Morton” was his “mocking”
and “demeaning” courtroom support for his office’s post-conviction
efforts to refuse DNA testing. Because the gist of the article as a whole
does not convey the impression that Coleman worked as a prosecutor in
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the initial stages of the Morton case in the 1980s, the article is not false
in that regard.
B.
Coleman nevertheless contends that, even if we restrict the
timeframe to the 2010–11 post-conviction proceedings, the article’s
claim that he “assisted” with those proceedings is actionably false. He
maintains that he never appeared as counsel, signed court filings,
discussed case strategy, argued in court, or gave any public statements
or interviews in Morton’s post-conviction proceedings. He does not deny,
at least at this stage, that he made light of the “bloody bandana” audibly
in the courtroom in a mocking and demeaning way during those very
post-conviction proceedings.
As with his argument about the word “prosecution,” Coleman’s
argument about the 2010–11 post-conviction proceedings hinges on a
rather technical understanding of what it means for a lawyer to “assist”
in his office’s courtroom efforts. Even if Coleman did not provide formal
support as a lawyer for his office’s efforts to keep Morton behind bars,
he does not contest that he provided moral support in a public way in
the courtroom. The unflattering and uncontested account of his
courtroom statements provides the factual support for the gist of what
the article claims about Coleman—that he “assisted,” in a regrettable
way, in the 2010–11 phase of the Michael Morton case as a Williamson
County prosecutor.
As explained above, the gist of this article—at least with respect
to Coleman’s involvement in the Morton case—is that Coleman “assisted
with the prosecution” of Morton by publicly mocking Morton’s key
15
evidence in a courtroom in 2011. For purposes of this TCPA appeal,
Coleman does not dispute the key fact—his demeaning statements in
the courtroom. He instead disputes the article’s characterization of that
fact as “assistance” in the “prosecution.” We are not convinced. A
reasonable reader—whether sensitive or not to the lawyerly distinctions
on which Coleman’s arguments rely—would not come away from
reading the entire article with a false impression of Coleman’s
connection to the post-conviction phase of the Morton case. The gist of
the article as a whole conveys to the reader the uncontested fact that
Coleman “assisted” the “prosecution” by mocking the exonerating
evidence in the courtroom. The article conveys no further details or
allegations about Coleman’s involvement in the post-conviction phase of
the case. Thus, in the context of the article as a whole, the broad
statement that Coleman “assisted with the prosecution” does not convey
false information about Coleman’s involvement in the post-conviction
phase of the proceedings.
C.
Finally, even if we agreed with Coleman that the article conveys
falsehoods about his involvement in Morton’s post-conviction
proceedings, we would still need to ask “whether the alleged defamatory
statement was more damaging to [Coleman’s] reputation, in the mind of
the average [reader], than a truthful statement would have been.”
McIlvain, 794 S.W.2d at 16. Assuming the challenged statement falsely
characterizes Coleman’s involvement in the post-conviction proceedings,
a precisely true version (as an author like Reddell might put it) would
be something like: “Coleman publicly supported his office’s decades-long
16
efforts to keep an innocent man behind bars by audibly mocking—in the
courtroom—Michael Morton’s requests for DNA testing of the very piece
of evidence that would ultimately exonerate Morton after 25 years of
wrongful imprisonment.”
Nothing in the Enterprise article would be more damaging to
Coleman’s reputation, in the eyes of the average reader, than this
undisputedly true 4 account of Coleman’s participation in Morton’s
post-conviction proceedings. For this additional reason, the article’s
statement that Coleman “assisted with the prosecution” of Morton is not
actionable, as a matter of law, with respect to Coleman’s involvement in
Morton’s post-conviction proceedings. See Toledo, 492 S.W.3d at 714.
IV.
For these reasons, Coleman’s claims should have been dismissed
pursuant to the TCPA. The judgment of the court of appeals is reversed,
and the case is remanded to the district court for further proceedings
consistent with this opinion.
James D. Blacklock
Justice
OPINION DELIVERED: February 16, 2024
4 The factual question of whether and how Coleman made these
controversial courtroom comments is not before this Court. Coleman does not
dispute in this Court that he did so, but our decision in this TCPA appeal
should not be construed to resolve any factual questions regarding the episode.
17