D Magazine Fights to Kill Defamation Lawsuit

DALLAS (CN) - The Texas Supreme Court agreed to consider D Magazine's request to dismiss a libel lawsuit from a Dallas-area woman who claims the magazine defamed her in an article headlined "The Park Cities Welfare Queen."

The court on June 24 granted D Magazine and its corporate owners' petition for review of Janay Bender Rosenthal's original Feb. 11, 2014 complaint, which she filed in Dallas County Court.

In it, Rosenthal claimed that the magazine had defamed her in its March 2013 article that revealed she had applied for food stamps - Supplemental Nutrition Assistance Program benefits - though she lived in a five-bedroom $1 million house.

Rosenthal demanded more than $1 million in damages from D Magazine Partners, Magazine Limited Partners and Allison Media, for libel and deceptive trade.

No judgment has been rendered in that case. It is pending until D Magazine's appeals are exhausted, Rosenthal's attorney John DeFeo said in an interview this week.

The article at issue, published without a byline, was attributed to "an anonymous Park Cities parent."

The satirical piece explained in five steps how to get food stamp benefits through dubious methods. D Magazine printed it in its "Crime" section, Rosenthal said in her complaint.

Before it was published, according to Rosenthal's lawsuit, D Magazine editor Tim Rogers called her and "asked if she had any comments about 'committing fraud with food stamps.'"

At the time, DeFeo said in the interview, Rosenthal had "very little money" after a custody battle with her ex-husband, and had to apply for SNAP benefits to be able to "remain independent."

Rosenthal said in her lawsuit that she told editor Rogers that "she did not know anything about fraud in obtaining food stamps," but that "she suspected who was behind the article": someone who had been harassing and stalking her, and that there were criminal charges pending against the stalker, who had threatened her with death, and that the district attorney had told her not to talk about it.

DeFeo said in the interview that "the magazine knew the stalker was involved in illegally obtaining information" it used in its article, including Rosenthal's Social Security number and SNAP benefits application.

Rosenthal said D Magazine never followed up her information about the stalker. Nor did it mention "that her daughter receives benefits from the Texas Crime Victim's Fund or that Janay was encouraged by the Attorney General's Office to seek Medicaid and SNAP benefits because the cost of the years-long battle to protect her daughter from abuse had brought her to the brink of financial ruin."

In July 2014 a Dallas County Court dismissed with prejudice Rosenthal's claim of deceptive trade and defamation of her daughter, but refused to dismiss the defamation claim involving Rosenthal herself.

"(T)he court finds that plaintiff has established by clear and specific evidence a prima facie case of defamation," Dallas County 134th Judicial Court Judge Dale Tillery ruled.

D Magazine appealed again, to the Fifth District Court of Appeals in Dallas, which denied the request in August 2015 by 2-1 vote.

Justice Lana Myers wrote for the majority that the term "welfare queen" is an inherent accusation of fraud.

But Justice Ada Brown wrote in dissent that the article did not include verifiably false statements, so it did not constitute libel. Brown suggested that the article's subject of criticism was the food stamps program, rather than Rosenthal herself.

In a June 2 amicus brief this year to the Texas Supreme Court, the Texas Press Association et al. criticized the majority ruling for, among other things, using a Wikipedia definition of "welfare queen" to justify its conclusion.

"In the face of ever-expanding availability of content from unverified, collaborative websites, like Wikipedia, Texas court and counsel need guidance on whether, when, and how to use it," the media groups wrote.

They backed Brown's dissenting opinion, saying that "(a)s a general rule, literally true statements are non-actionable regardless of what conclusions people may infer from them."

However, Rosenthal claimed in her original complaint that "numerous friends and family who read the article concluded that Janay had been arrested for 'food stamp' fraud/theft."

The Health and Human Services Commission confirmed that its investigation of Rosenthal benefits "found no evidence anyone has fraudulently obtained or otherwise abused state benefits," according to Rosenthal's original complaint.

The Texas Supreme Court granted D Magazine's petition for review on June 24, but has not yet set a date for further proceedings.

DeFeo & Associates is based in Dallas.D Magazine's attorney Jason Bloom is with Haynes and Boone, also in Dallas.

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