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Huckabee v. Time Warner Entertainment Co.5/4/2000
original memo might suggest personal ill-will toward Judge Huckabee, nothing in either of these documents suggests that Cotts or Grant had any doubts about the truth of the broadcast. See Carr, 776 S.W.2d at 571; Casso, 776 S.W.2d at 558.
Likewise, Nevins's insistence that the filmmakers focus on divorce from the women's perspective is no evidence of actual malice. Without more, mere evidence of pressure to produce stories from a particular point of view, even when they are hard-hitting or sensationalistic, is no evidence of actual malice. See Tavoulareas v. Piro, 817 F.2d 762, 796 (D.C. Cir. 1985)(en banc); Perez v. Scripps-Howard Broadcasting Co., 520 N.E.2d 198, 204 (Ohio 1988)(both holding that editorial pressure to produce sensationalistic stories is not evidence of actual malice); see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989)("Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice."). Although evidence that HBO directed Grant to produce a sensational story without regard for its truth would raise a fact question, Judge Huckabee has not produced any such evidence. See Tavoulareas, 817 F.2d at 796.
2. Editorial choices.
Next, Judge Huckabee complains of HBO's choice of material for the documentary. His principal complaint is that Women on Trial did not discuss much of the evidence presented at the 1988 Hebert hearing, including (1) Wayne's initial treating physician's testimony that Wayne had denied that his father caused the injury ; (2) Child Protective Services case worker Wilma Smith's testimony that in his videotaped interview Wayne said that his mother told him to say that his father had abused him (although Wayne still maintained that such abuse occurred); (3) Smith's further testimony that in a subsequent interview with Wayne, he told her that his father had not abused him during the Christmas holidays, but that his father had touched his private area in July 1987; (4) Smith and social worker Cheryl Bennett's testimony that Wayne and his brother John often fought after Wayne returned from Michael; (5) Bennett's testimony that Sandra told her that she preferred that Michael not be allowed visitation rights and had inquired about what was necessary to terminate them; and (6) Wayne's grandmother's testimony that Michael had not bathed Wayne during their visit to her home. By failing to include this evidence, Judge Huckabee claims that HBO intentionally made it look like he was presented with an open-and-shut case against Michael Hebert, when in fact much of the evidence justified his order.
Further, Judge Huckabee complains about the film's failure to clarify two facts: first, that his statements in the interview with Grant came in response to questions about a "hypothetical" case; and second, that Sandra did not move to modify the temporary order in the three years after the court of appeals denied her petition for mandamus. Because of all these omissions, Judge Huckabee claims that the viewers saw him falsely as a judge who flouted his legal duty to render decisions in the best interests of children. See Tex. Fam. Code ยง 153.002.
A broadcaster's omission of facts may be actionable if it so distorts the viewers' perception that they receive a substantially false impression of the event. See Golden Bear Distrib. Sys. v. Chase Revel, Inc., 708 F.2d 944, 949 (5th Cir. 1983)(applying Texas law); Express Publishing Co. v. Gonzalez, 350 S.W.2d 589, 592 (Tex. Civ. App.-Eastland 1961, writ ref'd n.r.e.); see also Toney v. WCCO Television Cable & Satellite, Inc., 85 F.3d 383, 395 (8th Cir. 1996)(Byron White, J.)(applying Minnesota law); M
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