Jul 30, 2010

Is Philip R. Klein a Pubic Figure?

On the lawsuit page of the SET Political Review, Philip R. Klein wrote today (emphasis is mine):
Counsel for STE and OKW refuse and pass to file a brief. Counsel for Klein files their brief in front of the Texas Supreme Court on July 12, 2010.
Counsel for STE and OKW file a response barley under the deadline.
Philip's chronic dyslexia is readily apparent: John Morgan, Esq. dated "their brief " on July 21, not July 12, as Klein claims. See for yourself on the documents above, anonymously linked from Klein's site.

According to the Texas Supreme Court site:
  • Event Type:    Brief filed.
  • Description:    Real Parties in Interest 
  • Date:    7/23/2010
The briefing schedule specifies 15 days to respond with our final brief after John Morgan and Philip Klein filed their reply brief.
Relators shall file any reply brief within fifteen days after receiving real party/parties in interest brief (no later than August 10, 2010).
Our attorney, Jeffrey L. Dorelll, indeed filed our final reply brief today. Readers can decide for themselves whether we filed "barley under the deadline," since this was due on August 5 at the earliest.

Our attorneys debated the status of Philip R. Klein as a public figure.

John S. Morgan: Mr. Philip Klein is not a public figure.
Relators assume falsely that Mr. Philip Klein, individually, and the owner of PRK Enterprises, Inc., and Klein Investments, Inc., is a public figure. In considering the constitutional issues, if any, this Court should be aware that Mr. Klein is not a “public figure” as that term is defined by the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 3009 (1974).

Mr. Klein is a private investigator and a professional bodyguard, as well as a part-time fireman. He holds no public office, he is not a politician, he has not run for office and his only exposure in the media have been for short spots on CNN, Fox News, Dateline NBC, and some local stations regarding specific cases that he has investigated; as well as some local talk radio appearances at 6:30 a.m. for three minutes each. Mr. Klein has drawn the ire of powerful plaintiff attorneys in Southeast Texas, because Mr. Klein was active in the tort reform movement and was a spokesperson for Citizens Against Lawsuit Abuse. At no time has Mr. Klein satisfied the standards for a public figure for purposes of constitutional analysis. In short, Mr. Klein and his companies have never sought nor obtained a role of special prominence in the affairs of society. Id. at 3009.
Jeffrey L. Dorrell: Is Klein a Public Figure (emphasis is original)?
The U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964), required public officials to prove actual malice when suing for defamation involving public issues. Bentley v. Bunton, 94 S.W.3d 561, 590 (Tex. 2002). Later, the court extended the New York Times actual-malice standard to public figures. Curtis Publ’g v. Butts, 388 U.S. 130, 155 (1967). Thus, whether or not Klein is a public figure is centrally important to whether he will be required to show actual malice by Relators as part of his case for defamation.

Klein’s strained attempt to deny that he is a public figure in his brief does more to prove that he is a public figure than that he is not. Again without citations to the record or any appendix, Klein claims to be a “private investigator,” “professional bodyguard,” and “part-time fireman.” Klein’s Brief, p. 8. Klein forgets that he testified in the case at bar he is actually employed as the owner and editor of an Internet website known as the “Southeast Texas Political Review” (Tab J of Relators’ petition, 5:10-21). In previous litigation, Klein has admitted that he uses this blog to regularly “publish [] commentary on local issues.” See, e.g., Klein & Assocs. Political Rels. v. Port Arthur Indep. Sch. Dist., 92 S.W.3d 889, 892 (Tex. App.— Beaumont 2002, pet. denied). Somewhat surprisingly, Klein judicially admits that he has appeared on the national television networks CNN and Fox News, the national television program Dateline NBC, and that he has regular appearances on local talk radio programs in the southeast Texas area. Klein’s Brief, p. 8. Klein admits he was “active in the tort reform movement” and was even a spokesperson for Citizens Against Lawsuit Abuse. Id. As a result, Klein admits he has “drawn the ire of powerful plaintiff attorneys in Southeast Texas.” Id.

Klein apparently fails to recognize that to determine whether he is a public figure, courts will examine whether Klein (i) actually sought publicity surrounding the controversy; (ii) had access to the media; and (iii) voluntarily engaged in activities that necessarily involved the risk of increased exposure and injury to reputation. See, e.g., McLemore, 978 S.W.2d at 572-73 (plaintiff invited public attention by becoming involved in Branch Davidian controversy); Einhorn v. LaChance, 823 S.W.2d 405, 411-12 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d) (pilots engaged public’s attention in attempt to influence airborne emergency-medical-services industry). By his own admissions, Klein scores three for three. Furthermore, in at least one previous case in which the litigious Klein sued a local school district and its trustees for defaming him (after the district sued Klein for defamation first), Klein admitted in his brief he was a limited-purpose public figure.[1] Klein & Assocs. Political Rels., 92 S.W.3d at 897 (“Klein says he is a limited-purpose public figure.”). This admission proved fatal to Klein’s defamation suit, as Klein failed to make the required showing of actual malice. Id.

Klein cannot show actual malice in the case at bar, either. Klein’s oversimplified and conclusory argument that malice is shown by Relators’ “hateful and vicious comments”[2] (Klein’s Brief, p. 14) betrays an ignorance of the Court’s jurisprudence on this issue. Publishing a statement with ill will, spite, hatred, or wanton desire to injure does not constitute malice. Masson v. New Yorker Mag., Inc., 501 U.S. 496, 510 (1991); Freedom Newspapers v. Cantu, 168 S.W.3d 847, 855 (Tex. 2005). Neither, of course, does satirical parody. Hustler Mag. v. Falwell, 485 U.S. 46, 54 (1988); New Times, Inc. v. Isaaks, 146 S.W.3d 144, 161 (Tex. 2004).

As even a limited-purpose public figure, Klein must show actual malice on the part of Relators by clear and convincing evidence in order to compel disclosure of documents revealing their identity. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172, (Tex. 2003). Klein cannot show even a scintilla of evidence of actual malice. Therefore, Klein cannot—at this point, at least—compel the destruction of Relators’ constitutionally protected anonymity.

[1] Limited-purpose public figures are public figures for a limited range of issues surrounding a particular public controversy. McLemore, 978 S.W.2d at 571.
[2] Klein’s Brief, p. 14.
My Commentary: Philip R. Klein is a weasel.


Anonymous said...

Primetime Phil is just too modest. His brief cites 3-minute TV appearances at 6:30 a.m. KBTV has posted a 6-minute, 48-second clip clip dated July 28, with 9:39 a.m. listed as the starting time. And at least nine organizations have asked this distinguished public figure to speak at their meetings.

Anonymous said...

I thought Klein had a publicist. If so, he's the only non-public figure I've ever heard of who did.

Anonymous said...

Gus you misspelled "public" in the title.

Anonymous said...

Anon 735, you missed the joke.

Anonymous said...

Whatever he is, he's large.