Are the volunteer board members of a public TV station protected from lawsuits if the station broadcasts something defamatory?

Texas AG Opinion JM-951: Do Public TV Board Volunteers Get Charitable Immunity?

Plain-English summary

Public television stations in Texas are usually run by nonprofits, and the people who oversee them are often volunteers who sit on a board of directors. Texas passed a Charitable Immunity and Liability Act in 1987 to protect volunteers and charities from lawsuits, so they would not be scared away from serving. A state senator asked how that protection plays out when a public TV station is sued, especially for putting something defamatory on the air.

The Attorney General worked through it in pieces.

First, does a public TV station even count as a "charitable organization" under the Act? The Act protects, among others, nonprofit organizations operated for educational purposes. Public TV stations are typically licensed by the FCC only to nonprofit educational organizations, so they fit the general description. But whether any particular station qualifies is a question of fact, and the Attorney General cannot make factual findings in an opinion. So the answer is that a public TV station may qualify, but it has to be proven case by case on the actual record.

Second, is defamation the kind of harm the Act covers? Yes. Slander is spoken defamation, and it has long been actionable in Texas. When a defamatory statement is read from a script and broadcast, the law treats it as libel rather than slander. Either way, defamation is an "injury" within the meaning of the Act.

Third, and this is the big limit: does the Act actually shield a station and its volunteers when a defamatory broadcast goes out? Not always. The Act flatly does not apply to conduct that is intentional, wilfully or wantonly negligent, or done with reckless disregard for others. So while a plaintiff does not need to prove intent to win an ordinary defamation case, if the defamation is proven to be intentional, it falls outside the Act's protection entirely. Volunteers and employees cannot hide behind the charitable-immunity law for an intentional smear.

The Attorney General also pointed to a separate, narrower shield that exists just for broadcasters. Under a different statute, a broadcaster is not liable for a defamatory statement made by someone else (say, a guest) unless the plaintiff proves the broadcaster failed to use due care to prevent it from airing. Because the volunteer board members of a nonprofit-licensed station are the station's "operators," they can invoke that limited defense too.

Finally, a caution that is not about lawsuits at all. Public broadcasters are subject to the FCC's "personal attack" rule, which requires notifying and offering response time to a person attacked on the air during a controversial issue. Breaking that rule does not create civil liability, but it can put the station's FCC license at risk.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Charitable Immunity and Liability Act (Civil Practice and Remedies Code chapter 84) has been amended since 1988, including changes to the definitions and to the insurance and liability-cap provisions, and the FCC's personal-attack and fairness rules were repealed in the years after this opinion. The Texas nonprofit corporation statute cited here has since been recodified into the Business Organizations Code. Anyone assessing a public broadcaster's liability today should consult the current statutes and current FCC rules rather than the 1987-88 provisions cited here.

Who this opinion affected (as of 1988)

Public television stations run by nonprofits: They could potentially claim charitable-organization status under the Act, subject to proving it on the facts.

Volunteer board members and directors of those stations: They could be immune from civil liability for acts within their duties, but not for intentional or reckless conduct.

Station employees: Their money-damages liability could be limited under the Act, provided the required insurance was in place.

Common questions

Does a public TV station qualify as a charitable organization under the Act?
It may. The Act protects nonprofit organizations operated for educational purposes, and public TV stations are typically licensed only to nonprofit educational organizations, but whether a particular station qualifies is a question of fact that must be resolved on the record.

Is a defamatory broadcast covered by charitable immunity?
Sometimes. Defamation is an injury the Act reaches, but the Act does not apply to intentional or reckless conduct, so intentional defamation is outside its protection and volunteers and employees cannot claim immunity for it.

Is broadcasting a defamatory statement libel or slander?
When a defamatory statement is read from a script and broadcast, Texas law treats it as libel. Slander is oral defamation. Both are actionable.

Do board members have any other protection?
Yes. A separate statute gives broadcasters, including the operators of a nonprofit-licensed station, a limited defense: they are not liable for a defamatory statement made by someone other than the broadcaster unless they failed to exercise due care to prevent it from airing.

Background and statutory framework

The Charitable Immunity and Liability Act of 1987 (Civil Practice and Remedies Code chapter 84) was adopted to reduce the liability exposure and insurance costs of bona fide, well-supported charitable organizations and their employees and volunteers, in order to encourage volunteer services (section 84.002). It provides limited grants of immunity for volunteers and limitations on money-damages liability for employees and organizations (sections 84.004-84.007), all subject to numerous provisos. Critically, none of the immunity-conferring or liability-limiting provisions apply to an act or omission that is intentional, wilfully or wantonly negligent, or done with conscious indifference or reckless disregard for the safety of others (section 84.007(a)), and the liability limits do not apply unless the organization maintains a specified amount of liability insurance (section 84.007(g)).

Charitable-organization status (section 84.003). Whether an entity is a charitable organization is a question of fact; section 84.003(1) sets out two alternative sets of criteria, covering nonprofit entities exempt under Internal Revenue Code section 501(c)(3) or 501(c)(4) and organized and operated exclusively for charitable, religious, youth sports and recreational, or educational purposes (among others), and bona fide charitable or educational organizations meeting listed conditions. The Attorney General cannot engage in fact-finding and the senator provided no facts about a particular station. FCC rules license noncommercial educational television stations only to nonprofit educational organizations shown to serve the educational needs of the community (47 C.F.R. section 73.621; see also Commission Policy Concerning the Noncommercial Nature of Educational Broadcast Stations, 86 F.C.C.2d 141 (1981)). Because the Act protects nonprofit entities organized and operated for educational purposes (section 84.003(1)(A) and (B)), public television stations may qualify as charitable organizations, but each case awaits resolution on a proper factual record.

Defamation as injury (section 84.004). Section 84.004(a) makes a volunteer serving as an officer, director, or trustee immune from civil liability for any act resulting in death, damage, or injury within the course and scope of the volunteer's duties. Libel is defamation expressed in written or graphic form (section 73.001). Slander, the oral transmission of a defamatory statement, is actionable at common law (McDaniel v. King, 16 S.W.2d 931, 932 (Tex. Civ. App. - San Antonio 1929, no writ)), and the broadcasting of a defamatory statement read from a script is libel rather than slander (Kennedy v. Texoma Broadcasters, Inc., 507 S.W.2d 864, 866 (Tex. Civ. App. - Dallas 1974, no writ)). Defamation is therefore an injury within the meaning of section 84.004(a).

Intentional defamation and the broadcaster's defense. Because section 84.007(a) states unequivocally that the Act does not apply to intentional, wilfully or wantonly negligent, or reckless conduct, the special nature of some defamations means the Act will not apply to every libel or slander. While proof of intent is not required to establish liability for actual damages in a defamation action (Hornby v. Hunter, 385 S.W.2d 473 (Tex. Civ. App. - Corpus Christi 1964, no writ)), any defamation proven to be intentional is outside the Act's protection. Separately, section 73.004 provides a limited defense: a broadcaster is not liable for a defamatory statement published or uttered in a broadcast by one other than the broadcaster unless the complaining party proves the broadcaster failed to exercise due care to prevent it, and "broadcaster" includes the owner, licensee, or operator and its agents and employees. Board members of a public television station licensed to a Texas nonprofit corporation are the station's operators, since a nonprofit corporation's affairs are managed by its board of directors (V.T.C.S. art. 1396-2.14).

FCC personal-attack rule. The opinion cautioned that public broadcasters are also subject to the FCC personal-attack rule (47 C.F.R. section 73.1920), which requires that a person attacked on the honesty, character, or integrity during presentation of a controversial issue of public importance be notified and offered a reasonable opportunity to respond, with exceptions for certain categories including bona fide newscasts and attacks by candidates. A violation does not result in civil liability, but it may cause the FCC to revoke a public broadcaster's license.

Citations

Statutory and regulatory authority:

• Section 84.002, Civil Practice and Remedies Code (purpose of the Charitable Immunity and Liability Act of 1987)
• Section 84.003, Civil Practice and Remedies Code (definitions of "charitable organization," "volunteer," "employee")
• Section 84.004, Civil Practice and Remedies Code (volunteer immunity)
• Section 84.007, Civil Practice and Remedies Code (exclusions for intentional/reckless conduct; insurance requirement)
• Section 73.001, Civil Practice and Remedies Code (definition of libel)
• Section 73.004, Civil Practice and Remedies Code (broadcaster's limited defense)
• 47 U.S.C. section 396 (public broadcasting)
• V.T.C.S. art. 1396-2.14 (nonprofit corporation managed by a board of directors)
• 47 C.F.R. section 73.621 (licensing of noncommercial educational stations); 47 C.F.R. section 73.1920 (FCC personal-attack rule)

Cases:

• McDaniel v. King, 16 S.W.2d 931 (Tex. Civ. App. - San Antonio 1929, no writ) (Texas appellate court; slander actionable at common law)
• Kennedy v. Texoma Broadcasters, Inc., 507 S.W.2d 864 (Tex. Civ. App. - Dallas 1974, no writ) (Texas appellate court; broadcasting a defamatory script is libel)
• Hornby v. Hunter, 385 S.W.2d 473 (Tex. Civ. App. - Corpus Christi 1964, no writ) (Texas appellate court; intent not required for defamation liability for actual damages)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-951
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0951.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

September 2, 1988

Honorable Hugh Parmer
Chairman
Intergovernmental Relations Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JM-951

Re: Whether a public television station is a "charitable organization" for purposes of liability, including slander and libel, and related questions (RQ-1513)

Dear Senator Parmer:

You ask our opinion on a number of questions concerning the application of the Charitable Immunity and Liability Act of 1987 (the Act) to suits against public television stations and volunteer members of the supervisory boards responsible for the control of such stations. We will first review the Act and then answer each of your questions in turn.

We assume that by "public television stations" you mean those broadcasting entities licensed by the Federal Communications Commission pursuant to section 301 of Title 47 of the United States Code; and which are owned and operated by nonprofit entities; and which provide noncommercial, educational broadcast programming for the public.[1] See also 47 U.S.C. section 396.

The Charitable Immunity and Liability Act of 1987 was adopted by the legislature to "reduce the liability exposure and insurance costs" of "bona-fide" and "well-supported" charitable organizations "and their employees and volunteers in order to encourage volunteer services and maximize the resources devoted to delivering these services." Civ. Prac. & Rem. Code section 84.002.

The Act provides for limited grants of immunity for volunteers serving charitable organizations and for limitations on liability in money damages for employees and for the organizations. See Civ. Prac. & Rem. Code sections 84.004, 84.005, 84.006, 84.007. Both the grants of immunity and the limitations on liability are subject to numerous provisos. See Civ. Prac. & Rem. Code section 84.007. In particular, it is important to note in reviewing your questions that none of the immunity-conferring and liability-limiting provisions in the Act apply to

an act or omission that is intentional, wilfully or wantonly negligent, or done with conscious indifference or reckless disregard for the safety of others. (Emphasis added.)

Civ. Prac. & Rem. Code section 84.007(a). Additionally, the limitations on liability available to a charitable organization and its employees do not apply unless the organization maintains a specified amount of liability insurance. Civ. Prac. & Rem. Code section 84.007(g).

You first ask whether a public television station is a "charitable organization" within the meaning of section 84.003(1) of the Act.

Such a determination is a question of fact. The Act sets out two alternative sets of criteria for determining whether a particular entity is a "charitable organization" for the purposes of the Act:

(1) 'Charitable organization' means:

(A) any organization exempt from federal income tax under Section 501(a) of the Internal Revenue Code of 1986 by being listed as an exempt organization in Section 501(c)(3) or 501(c)(4) of the code, if it is a nonprofit corporation, foundation, community chest, or fund organized and operated exclusively for charitable, religious, prevention of cruelty to children or animals, youth sports and youth recreational, or educational purposes, excluding private primary or secondary schools, alumni associations and related on-campus organizations, or is organized and operated exclusively for the promotion of social welfare by being primarily engaged in promoting the common good and general welfare of the people in a community; or

(B) any bona fide charitable, religious, prevention of cruelty to children or animals, youth sports and youth recreational, or educational organization, excluding alumni associations and related on-campus organizations, or other organization organized and operated exclusively for the promotion of social welfare by being primarily engaged in promoting the common good and general welfare of the people in a community, and that:

(i) is organized and operated exclusively for one or more of the above purposes;

(ii) does not engage in activities which in themselves are not in furtherance of the purpose or purposes;

(iii) does not directly or indirectly participate or intervene in any political campaign on behalf of or in opposition to any candidate for public office;

(iv) dedicates its assets to achieving the stated purpose or purposes of the organization;

(v) does not allow any part of its net assets on dissolution of the organization to inure to the benefit of any group, shareholder, or individual; and

(vi) normally receives more than one-third of its support in any year from private or public gifts, grants, contributions, or membership fees.

(2) 'Volunteer' means a person rendering services for or on behalf of a charitable organization who does not receive compensation in excess of reimbursement for expenses incurred, and such term includes a person serving as a director, officer, trustee, or direct service volunteer.

(3) 'Employee' means any person, including an officer or director, who is in the paid service of a charitable organization, but does not include an independent contractor.

(4) 'Good faith' means the honest, conscientious pursuit of activities and purposes that the organization is organized and operated to provide.

Civ. Prac. & Rem. Code section 84.003.

We cannot engage in fact-finding in the opinion process, and you provide no facts concerning a particular public television station. Certainly, the licensee of a public television station may be, in the appropriate circumstances, a "charitable organization." For instance, we note that the rules and regulations of the Federal Communications Commission stipulate that public noncommercial television broadcasting stations will

be licensed only to nonprofit educational organizations upon a showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service.

47 C.F.R. section 73.621. See also Commission Policy Concerning the Noncommercial Nature of Educational Broadcast Stations, 86 F.C.C.2d 141 (1981). The Act clearly protects nonprofit (whether or not tax-exempt) entities organized and operated for educational purposes as "charitable organizations." Civ. Prac. & Rem. Code section 84.003(1)(A) and (B). Thus, public television stations may qualify as charitable organizations, but each case must await resolution on a proper factual record.

You next ask whether libel or slander, or both, are included within the definitions of "damage" or "injury" as used in section 84.004(a) of the Civil Practice and Remedies Code.

Section 84.004(a) of the code provides in relevant part that

a volunteer who is serving as an officer, director, or trustee of a charitable organization is immune from civil liability for any act resulting in death, damage, or injury if the volunteer was acting in the course and scope of his duties or functions as an officer, director, or trustee within the organization. (Emphasis added.)

Civ. Prac. & Rem. Code section 84.004(a).

Libel is

a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. (Emphasis added.)

Civ. Prac. & Rem. Code section 73.001. Slander, the oral transmission of a defamatory statement, is actionable under the common law. McDaniel v. King, 16 S.W.2d 931, 932 (Tex. Civ. App. - San Antonio 1929, no writ). The broadcasting of a defamatory statement read from a script is libel, rather than slander. Kennedy v. Texoma Broadcasters, Inc., 507 S.W.2d 864, 866 (Tex. Civ. App. - Dallas 1974, no writ). Thus, defamation is an "injury" within the meaning of section 84.004(a) of the Act. An action for defamation may or may not require the plaintiff to plead and prove actual damages. See generally 36 Tex. Jur. 2d sections 93-95.

You also ask whether a defamatory public television broadcast will subject a public television station and volunteer members of the board of directors which govern the station to liability for the defamation.

The special nature of some defamations may mean that the Charitable Immunity and Liability Act will not apply to every libel or slander. This is so because section 84.007 of the Act states unequivocally that the Act does not

apply to an act or omission that is intentional, wilfully or wantonly negligent, or done with conscious indifference or reckless disregard for the safety of others. (Emphasis added.)

Civ. Prac. and Rem. Code section 84.007(a). While proof of intent is not required to establish liability for actual damages in a defamation action, see Hornby v. Hunter, 385 S.W.2d 473 (Tex. Civ. App. - Corpus Christi 1964, no writ), any defamation proven to be intentional is outside of the protection conferred by the Act. Thus, volunteers and employees associated with a charitable entity will not be able to claim the protection of the Act in the case of intentional defamation.

The Civil Practice and Remedies Code provides a limited defense for broadcasters accused of transmitting a defamation:

(a) A broadcaster is not liable in damages for a defamatory statement published or uttered in or as a part of a radio or television broadcast by one other than the broadcaster unless the complaining party proves that the broadcaster failed to exercise due care to prevent the publication or utterance of the statement in the broadcast.

(b) In this section, 'broadcaster' means an owner, licensee, or operator of a radio or television station . . . and the agents and employees of the owner, licensee, or operator.

Civ. Prac. & Rem. Code section 73.004. This provision furnishes a limited defense for the members of the board of directors of a public television station licensed to a Texas not-for-profit corporation, for they are the "operators" of the station. See, e.g., V.T.C.S. art. 1396-2.14 (the affairs of a nonprofit corporation shall be managed by a board of directors).

We also caution that in addition to the Texas law of defamation, public broadcasters are subject to the "personal attack" rules of the Federal Communications Commission. That rule provides:

(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the person or group attacked:

(1) Notification of the date, time and identification of the broadcast;

(2) A script or tape (or an accurate summary if a script or tape is not available) of the attack; and

(3) An offer of a reasonable opportunity to respond over the licensee's facilities.

(b) The provisions of paragraph (a) of this section shall not apply to broadcast material which falls within one or more of the following categories:

(1) Personal attacks on foreign groups or foreign public figures;

(2) Personal attacks occurring during uses by legally qualified candidates;

(3) Personal attacks made during broadcasts not included in paragraph (b)(2) of this section and made by legally qualified candidates, their authorized spokespersons, or those associated with them in the campaign, on other such candidates, their authorized spokespersons or persons associated with the candidates in the campaign; and

(4) Bona fide newscasts, bona fide news interviews, and on-the-spot coverage of bona fide news events, including commentary or analysis contained in the foregoing programs.

(c) The provisions of paragraph (a) of this section shall be applicable to editorials of the licensee, except in the case of noncommercial educational stations since they are precluded from editorializing (section 399(a), Communications Act).

47 C.F.R. section 73.1920.

A violation of this rule will not result in civil liability, but it may cause the Communications Commission to revoke the license of a public broadcaster.

SUMMARY

The Charitable Immunity and Liability Act of 1987, Civ. Prac. & Rem. Code ch. 84, may provide for immunity to volunteers serving as members of the boards of directors of public broadcasters. Whether the Act applies to a public broadcasting station, its employees, and volunteers is a question of fact. Defamation is a category of injury subject to the Act. Public broadcasting stations, their operators, agents and employees may have a limited defense in the case of defamations broadcast over their facilities. Civ. Prac. & Rem. Code section 73.004.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General

[1] We do not address those public television stations which are licensed to public entities such as the state, its universities, or a political subdivision. See generally Civ. Prac. & Rem. Code ch. 101.