Texas High Court Denies Netflix 'Guardians Inc' Defamation Rehearing

Despite the opinion of more than ten free speech organizations, the Texas Supreme Court declined to rehear a petition for review filed by Netflix concerning a San Antonio court-appointed guardian’s defamation claim.

In denying a motion to rehear the petition for review, the state’s highest court skipped an opportunity to weigh in on whether the Texas Civil Practice and Remedies Code Section 73.005(b) allows third party allegation attribution or endorsement exceptions.

The Texas Supreme Court, chaired by 75-year-old Nathan Hecht since 2013, also failed to issue an opinion when it denied the original petition for review on January 26 and motion for rehearing on August 30.

Hecht is set to retire from the Texas Supreme Court bench on Dec. 31.

As previously reported in Newsbreak, the case stems from an episode called “Guardians Inc” in the Netflix series “Dirty Money” in which San Antonio court appointed guardian Tonya Barina sued the streaming service for how she was depicted in filmed comments made by Laura Martinez and her attorney Phil Ross.

The investigative series "Dirty Money" was created and directed by Oscar-winning filmmaker Alex Gibney who was named one of America's most successful and prolific documentary filmmakers by the New York Times.

The claims of defamation emerged after a Bexar County Probate Judge appointed Barina the guardian of 87-year-old military veteran Charles Thrash who owned an auto shop on West Avenue for 50 years and had been in the news for marrying Martinez without Barina’s permission. The city of San Antonio is located in Bexar County, Texas.

Martinez and her San Antonio attorney Phil Ross alleged financial exploitation of Thrash while under Barina’s watch. The episode aired on March 11, 2020 but has since been removed from Netflix menu offerings.

After a lower court ruled against Netflix, the popular streaming platform appealed to San Antonio's 4th District Court of Appeals, which upheld the lower court's decision.

The chief justice of San Antonio's 4th District Court of Appeals is Rebeca C. Martinez.

Netflix attorney Katherine M. Bolger subsequently wrote in a Dec. 27, 2023 pleading to the Texas Supreme Court that in upholding the lower court’s decision, the state appellate court had created an exception within Texas Civil Practice and Remedies Code Section 73.005(b).

“The [Guardians Inc] program accurately quotes from third parties concerning matters of public concern,” Bolger stated. “This Court should review and reverse the appellate court’s erroneous application of this important statute."

The welfare and civil rights of adults who are placed under court supervision as wards of the state have been under Congressional review in recent years and the subject of multiple lawsuits, both state and federal.

“Equally important is the profound chilling effect the Fourth Court’s opinion will have on the discussion of issues of public concern in Texas as compellingly highlighted in the numerous amicus curiae [filed by] documentary filmmakers and nonfiction authors whose livelihoods the Fourth Court’s opinion directly threatens,” Bolger wrote in her March 13 motion for rehearing.

The coalition of documentary filmmakers and nonfiction authors, also known as “Documentarians, Authors and Texas Lawyers,” sided with Netflix in alleging that the San Antonio court of appeals purported an exception to ‘an unambiguous statute out of whole cloth.’

“The film does not contain any statement that actually endorses or adopts the allegations of any party portrayed in it," Attorney James Hemphill wrote in the Feb. 26 amicus brief on behalf of "Documentarians, Authors and Texas Lawyers."

The organization was led by Lawrence Wright, an Austin resident who won the Pulitzer Prize for his book “The Looming Tower: Al-Qaeda and the Road to 9/11.”

Wright’s book “Going Clear: Scientology, Hollywood, and the Prison of Belief” was adapted into a documentary that won three Primetime Emmy Awards.

Organizations that joined Wright's "Documentarians, Authors and Texas Lawyers" amicus brief include the Freedom of Information Foundation of Texas, Center for Investigative Reporting, the Media Institute, Tully Center for Free Speech, Freedom of the Press Foundation, Motion Picture Association, Inc., the Authors Guild, National Coalition Against Censorship, the Association of American Publishers, Inc., the National Press Photographers Association, the Freedom to Read Foundation, American Booksellers for Free Expression, News/Media Alliance, First Amendment Foundation, Inc. and the Media Coalition Foundation, Inc.

“There is no rule that required [Netflix] to evaluate or comment on Ross and Martinez’s allegations at all,” Netflix attorney Bolger unsuccessfully argued. “That is the whole point of the third-party-allegation rule—that [Netflix] need not decide whether Ross and Martinez are correct, they just need to accurately report what they said.”