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Elizabeth Pagano is the editor of the Austin Monitor.
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Thursday, January 8, 2015 by Elizabeth Pagano
Zimmerman libel suit against Bulldog dismissed
Less than 24 hours after being sworn in to office as the new District 6 representative, City Council Member Don Zimmerman had his lawsuit against the Austin Bulldog dismissed and was ordered to pay court costs and attorney’s fees.
Zimmerman filed the lawsuit in October, alleging libel in an article published by the Bulldog written by Ken Martin, its founder and editor.
Following Judge Amy Meachum’s latest ruling, Martin spoke to the Austin Monitor via email.
“As a journalist in the Austin area for more than 33 years, I never doubted that the court would uphold our absolute right to publish an important story about a City Council candidate that was based on a fair, true and impartial account of a judicial proceeding,” said Martin.
Martin’s story referred to alleged physical abuse of Zimmerman’s daughter and subsequent court action that gave his ex-wife sole managing conservatorship of the daughter.
On election night, Zimmerman attempted to drop the suit without prejudice. However, Judge Meachum ruled that the court did have jurisdiction to hear the Bulldog’s motion for award of attorney’s fees and sanctions against Zimmerman. Meachum heard the case this past Monday and granted the motion to dismiss the case Wednesday. He awarded court costs and attorneys fees to Martin.
“In fact,” said Martin, “my story about Don Zimmerman’s loss of the right to have access to or even communicate with his daughter went above and beyond meeting that standard by quoting him at length, as he denied the very facts contained in the court records.”
“Yet Zimmerman and his attorney Stephen Casey — who is also his campaign treasurer —insisted on pursuing this baseless lawsuit to suppress reporting by other media during his campaign for City Council. Unfortunately, this crafty tactic succeeded, and he was elected without proper scrutiny by larger media outlets that, in my opinion, were completely warranted.”
Martin continued: “Let’s be thankful for the Texas Citizens Participation Act enacted in 2011 that provides an expeditious way to resolve these unwarranted attacks on press freedoms.”
In Texas, the law, which is also known as the anti-SLAPP law, allows defendants to seek dismissal of such cases with 60 days of their filing.
In addition to awarding just under $10,000 in costs, attorney’s fees and sanctions, the court also denied a request for limited discovery that would have allowed Zimmerman access to some of Martin’s email. He made the request Jan. 2, 2015.
Meachum heard the case Monday, with Graves Dougherty Hearon & Moody PC attorney Pete Kennedy representing the Bulldog. Though Casey represented Zimmerman, he was traveling Monday. He did participate in the hearing via phone, but attorney David Rogers took lead chair.
Rogers explained that his client was requesting limited discovery “in order to know about the subjective mental impressions of the reporter.”
Email, he explained, could show that Martin acted with malice.
“Let’s see the emails,” said Rogers. “Did he know? Did he have doubts? Did he express them to anybody? We should be able to get that.”
Rogers also said the bigger question was whether it was “per se defamation to call somebody a child abuser.”
“It might be,” said Rogers. “In which case, malice and negligence aren’t necessary.”
Kennedy said that in this case, “malice” was a specific legal standard. He explained that because Zimmerman is a public figure, he had to prove actual malice, not common-law malice. That would require proof that Martin knew the article was substantially false before proceeding with publication. He argued that, because the plaintiffs had failed to show that the article was substantially false in the first place, “there is no point for them to root around in a reporter’s notes, trying to find evidence that they can’t find.”
In addition to the suit against the Bulldog, Casey also demanded that the Monitor remove a Whisper about the Bulldog story. Though the Monitor does not believe the item was defamatory, it removed the item from its site.
Zimmerman has 30 days to file an appeal once the new court order is on file with the district court. Meachum’s ruling also awarded attorney’s fees in the event of appeal.
Zimmerman did not respond to a request from the Monitor for comment on the ruling.
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Key Players & Topics In This Article
Don Zimmerman: Former Austin City Council Member for District 6 (2014-2016)
Graves Dougherty Hearon & Moody: Local law firm with practice areas that include Real Estate issues. GDHM is a donor to the parent organization of the Austin Monitor.
The Austin Bulldog: An independent, nonprofit local newspaper dedicated to investigative reporting.