Laura Prather in the Austin Chronicle: Zimmerman Suit Not Yet "Bygone"


At 9:46pm Tuesday, Dec. 16, as the final City Council election returns were arriving, District 6 Council Member-elect Don Zim­mer­man filed a notice of nonsuit regarding his lawsuit against Ken Martin and his online politics newsletter the Austin Bulldog. Zimmerman had sued Martin and the Bulldog for defamation after Martin reported details in early October of how the candidate had lost custody of his teenage daughter...

A successful defamation suit must show – as the Bulldog's motion to dismiss states – "that the defendant published a substantially false and defamatory statement about the plaintiff with actual malice." Zimmer­man seems to have taken offense because, as Martin had reported, he argues that the custody court's findings are false. On election night, Zimmerman was still angry about his custody case becoming public. He told the Chronicle that he had a witness who would testify that the bruises his daughter's doctor interpreted as evidence of abuse were actually from a fencing class. However, it's not clear how disputing the accuracy of the court's findings – which Zimmerman had officially accepted – would help prove defamation on the Bulldog's part, since Martin hewed closely to the publicly available court documents, rather than making claims of his own...

Laura Lee Prather, a lawyer with Haynes and Boone, LLP and the lead author of the TCPA, said that the intent of the law is for people to be able to "write and speak about matters of public concern without fear of retribution." Simply dropping a defamation suit "does not repair the chilling effect of the filing of the lawsuit." She pointed to a recent case she had argued in Harris County, Susan Delgado v. Carol Alvarado. In that case, state Rep. Alvarado was sued for defamation by former challenger Delgado. Although Delgado nonsuited after Alvarado filed a motion to dismiss, the judge not only heard the motion, but granted it, awarding Alvarado approximately $11,000 in costs.

Excerpted from the Austin Chronicle, December 23, 2014. To view full article, click here.

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