Texas’s New Retraction Statute: Why This Strongly Pro-First Amendment Measure Should Be Passed Into Law

Posted in: Constitutional Law

As The First Amendment Center has reported, the Texas Legislature recently approved a bill allowing publishers to limit the damages that can be received by plaintiffs in libel lawsuits if the plaintiffs at issue did not request a correction to, or a retraction of, the offending material.

If Governor Rick Perry approves the measure, it will then become Texas law.  In this column, I’ll argue that this pro-First-Amendment bill ought indeed to be passed into law. If it is, I predict that we will see, in Texas, more freedom of speech, and less fear of the consequences, in court, of speaking out.

The Provisions of the Texas Bill

The Texas bill at issue stipulates that corrections and retractions of inaccurate statements, in order to count as effective, would need to be published in a timely manner, and would need to be presented in a way that is similarly prominent to the way in which the original information was presented.

This provision’s inclusion is only fair:  If the original material was printed in such a way as to grab the reader’s attention, then surely the retraction or correction ought to grab the reader’s attention, too. Of course, this provision may prove embarrassing for those who print erroneous headlines, as the correction then obviously ought to be a headline, as well.  But, as embarrassing as such a retraction-by-headline may be to the news source, it is also the only just solution to counteract the impact of the initial, false headline upon its target, and the only way to make sure that even those readers who only skim headlines know that one of those headlines was, in fact, false and defamatory.

Adding some sensible balance to the proposed Texas law is another provision, which stipulates as follows: If those requirements that I’ve described above are met, then the bill, if passed, would limit the damages that can be collected from a publisher that makes non-malicious errors in its reportage.

The bill would also limit a person or business from collecting punitive damages for a false and defamatory statement if he, she, or it fails to seek a retraction of the offending, allegedly libelous statement within 90 days.

Again according to the First Amendment Center, publishers reportedly hope that the proposed Texas law may prevent libel lawsuits by requiring swift, prominent corrections.  Arguably, this measure may benefit everyone, as swift, prominent corrections should diminish the damages that publishers pay when they do incur libel-law liability.

The Texas Law, If Passed, Would Be a Kind of Retraction Statute

The Texas law, if passed, would be what is called a retraction statute, in that it allows a defamation defendant to retract what he, she, or it has published. Such statutes vary from state to state. Many such statutes, like the proposed Texas statute, include a limited time period for the plaintiff to request a retraction of what was printed, and a limited time period for the defendant to comply with that request. A defendant’s retraction can typically lessen the damages that he, she, or it must pay, but it cannot reduce those damages to zero. Depending on the state, a timely retraction may, however, lessen punitive damages to zero, therefore leaving only compensatory damages—the kind of damages that seek simply to put the plaintiff back where he, she, or it was, before the wrong at issue was perpetrated—to be paid.

With So Many and Varied Media and the Pervasive Influence of Google Searches, Do We Still Need Retraction Statutes at All?

One might argue that we are in—or, at least, are approaching—an era when retraction statutes are becoming obsolete.  In the past, if The New York Times printed a piece of news, it was seen by many as gospel, with few to argue otherwise. Now, in contrast, virtually anyone can challenge the Times’ reportage by posting credible and conflicting evidence on the Internet, where such evidence may well show up in a related Google search, right alongside the Times’s own reportage on the same matter.  Thus, in libel cases, a new defense may echo the “X-Files”’s motto: “The truth is out there.”  Or put another way, the real court here, now that we have Google searches, may end up being not a court of law, but rather the court of public opinion.