The DALLAS MORNING NEWS, INC. and Kevin Krause, Petitioners v. Lewis HALL and Richard Hall, Individually and on Behalf of Rxpress Pharmacies and Xpress Compounding, Respondents, 579 S.W.3d 370

3 The court of appeals did not rely on the Heiskell report, but Rxpress continues to cite it as evidence of falsity. In it, Heiskell maintains that the search warrant is proof that Rxpress was not under investigation. The News argues the report is inadmissible because Rxpress failed to demonstrate that an expert opinion is necessary to interpret the search warrant. Testimony by an expert witness is admissible only "if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702.

Notably, Rxpress makes no argument about why specialized knowledge is necessary to understand the search warrant. And we can think of none, either. A fact finder could easily read the search warrant and understand that it established where to search and what to search for. And a fact finder could reasonably draw a conclusion from the face of the search warrant that the government had a particular interest in communications involving Rxpress.

Because Rxpress has not demonstrated that Heiskell's specialized knowledge "will help the trier of fact to understand the evidence or to determine a fact in issue," his testimony is inadmissible and no evidence of falsity. See id. Rxpress failed to carry its burden under the Act because it has not established a prima facie case that the News falsely reported that Rxpress was "under investigation." See TEX. CIV. PRAC. & REM. CODE § 27.005(c). The News also argues that the court of appeals improperly rejected its substantial-truth defense under

section 27.005(

d) of the Act. TEX. CIV. PRAC. & REM. CODE § 27.005(d) ("[T]he court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim."). But because we hold that Rxpress failed to carry its burden to survive dismissal under

section 27.005(c), we need not decide whether the News established its substantial-truth defense under

section 27.005(d). Even if the search warrant does not establish by a preponderance of the evidence that Rxpress was "under investigation," as the court of appeals held, Rxpress fails to establish a prima facie case that the News's reporting was not substantially true. C The second allegedly defamatory meaning the articles convey is the implication that Rxpress has actually violated healthcare laws. The News denies that it either expressly stated or even vaguely implied that Rxpress was guilty of any crime.

Rather, it reported on official proceedings-the Halsey search warrant-and on third-party allegations-the various lawsuits involving Rxpress. Such reporting, the News insists, is statutorily privileged. See TEX. CIV. PRAC. & REM. CODE §§ 73.002(a) - (b), 73.005(b). Rxpress does not argue that the articles ever state directly that it is guilty of fraud and other misconduct; rather, it argues that the articles imply that it is guilty.

"[A] plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way." Turner v. KTRK Television, Inc. , 38 S.W.3d 103, 115 (Tex. 2000). So even if a publication "gets the details right but fails to put them in the proper context and thereby gets the story's 'gist' wrong," it may be liable for defamation. Id. (internal citation omitted).

Generally, media outlets enjoy a privilege that protects publications describing official proceedings of public concern. TEX. CIV. PRAC. & REM. CODE § 73.002(a). If the report of the proceeding is substantially true-"a fair, true, and impartial account"-the publication is privileged and not actionable. KBMT Operating Co. v. Toledo , 492 S.W.3d 710, 714-15 (Tex. 2016). And while the defendant must prove the applicability of the privilege, the plaintiff bears the burden to prove the report was false. Id.

Similarly, media outlets that accurately report allegations made by a third party about matters of public concern can assert the truth as a defense. TEX. CIV. PRAC. & REM. CODE § 73.005(b). And because this third-party-allegation rule-like the official-proceeding privilege-bears on substantial truth, the plaintiff has the burden under the Act to show falsity at the motion-to-dismiss stage. We recently recognized that true statements strung together and accompanied by speculative commentary might wrongly imply that the subject of a publication has committed a crime. D Magazine Partners, L.P. v.

Rosenthal concerned an article, "The Park Cities Welfare Queen," that described a woman living in a wealthy neighborhood but receiving food stamps. 529 S.W.3d 429, 431-32 (Tex. 2017). When the woman sued D Magazine, the article's publisher, for defamation, the magazine argued that each statement in the

article was literally true and that the

article never expressly accused the woman of lying or committing fraud. Id. at 438. This argument was correct as far as it went, but the

article also speculated that the plaintiff "must have been less than forthcoming" to welfare authorities. Id . at 437. And the magazine took the extra step of running the

article under the topic heading "CRIME." Id. at 438. We held that the

article impliedly accused the woman of obtaining welfare benefits by fraud. Id. at 439. We highlighted sections of the

article that juxtaposed statements in a way that insinuated accusations. For example, the

article reported that the address on file with the welfare authorities was an older address. It then identified another document showing her current home was worth more than $ 1 million and noted parenthetically that "[f]alsifying such a document is a felony." Id. at 439. By combining facts in this way, with such statements about the law, in the magazine's

section on "crime," we held the

article taken as a whole implied that she had committed a crime. Id. Rxpress seeks a holding like that in Rosenthal , but this case is not like Rosenthal . Rxpress does not cite, nor can we find, any statements in the News's articles implying that Rxpress is actually guilty of anything. In Rosenthal , the defendant made thinly veiled accusations such as the plaintiff "must have been less than forthcoming" and juxtaposed damning facts with seemingly on-point criminal statutes.

In this case, the News places the accusations against Rxpress in the context of the greater controversy facing the compounding industry, but that's it. It certainly makes clear that Rxpress was "under investigation." But Rxpress has already failed to carry its burden to show that that's not at least substantially true. The News reported on the search warrant and on allegations made in the Prime, Haynes, and Schuster lawsuits. These lawsuits involved assertions by-and against-Rxpress that are certainly not flattering, especially when placed in proximity to the notion that Rxpress is under federal investigation.

But not flattering is not defamatory-especially in the face of the third-party-allegation rule and the official-proceeding privilege. Basing its articles on the search warrant and court documents from the various lawsuits, the News fairly and accurately reported on the accusations, and qualified all of it with pervasive sourcing language: Federal authorities are investigating a North Texas compounding pharmacy accused of paying illegal kickbacks to physicians for writing prescriptions according to court documents obtained by The Dallas Morning News.

Rxpress Pharmacy and related entities in the Dallas area also paid sales reps commissions to market the pharmacy's services to doctors in apparent violation of federal anti-kickback laws, according to lawsuits . .... Disgruntled business partners and a pharmacy tax adviser leveled the accusations against Rxpress in separate lawsuits. The tax adviser said doctors invested in the pharmacy and wrote prescriptions to drum up business for the company. Rxpress paid them kickbacks in the form of investor dividends, she said .

The media enjoy a privilege to report on judicial and official proceedings without regard for whether the information from such proceedings is actually true. KBMT Operating Co. , 492 S.W.3d at 714 ; see also TEX. CIV. PRAC. & REM. CODE §§ 73.002(a), 73.005(b). We have held that a plaintiff "who sues a media defendant for defamation over a report on official proceedings of public concern has the burden of proving that the gist of the report was not substantially true-that is, that the report was not a fair, true, and impartial account of the proceedings.

That burden is not met with proof that the report was not a substantially true account of the actual facts outside the proceedings." KBMT Operating Co. , 492 S.W.3d at 715. Rxpress, however, complains that, by reporting that it is "under investigation" and embroiled in litigation, the News has implied that it is guilty of violating the law. But to give credence to that complaint-and to affirm the court of appeals-"would ill serve the public's interest in government activities." Id. at 714. The News argues that upholding the court of appeals' decision will chill First Amendment speech, and it is probably right.

The media does not simply report on individual events in isolation. Commonly, reporting involves investigating, tracking down related stories, and providing context for readers. The Fourteenth Court of Appeals recently considered a defamation suit arising from an

article about a physician, Dr. Joselevitz, whom the Texas Medical Board had investigated for negligently prescribing narcotic drugs, which resulted in the deaths of multiple patients. Cox Media Grp., LLC v. Joselevitz , 524 S.W.3d 850, 853-54 (Tex. App.-Houston [14th Dist.] 2017, no pet.). The article, "Texas doctors rarely charged in prescription drug epidemic," covered "pill mill" doctors and the broader opioid epidemic and featured Dr. Joselevitz prominently. Id. at 855. The court agreed with the media defendant's portrayal of the

article as a "comprehensive investigation of regulatory action against, and the lack of criminal prosecution of, doctors who allegedly violate laws regarding prescription drugs." Id. at 864 (internal quotation omitted). But despite covering investigations into Dr. Joselevitz's prescribing practices and noting his partial blame in patients' deaths, the court did not conclude that the

article implied Joselevitz was a "pill mill" doctor by reporting on those doctors in the same article. Id. at 863. This case is more like Joselevitz than Rosenthal . Because the News's reporting fell within the protections provided by sections 73.002 and 73.005 of the Civil Practice and Remedies Code, Rxpress's second alleged defamatory meaning is statutorily privileged. Accordingly, the articles are "not a ground for a libel action." TEX. CIV. PRAC. & REM. CODE § 73.002(a).

Because Rxpress has not met-and, under these circumstances, cannot meet-its burden under the Act to show a prima facie case for defamation, the News is entitled to dismissal. * * * The court of appeals held that Rxpress satisfied its burden under the Act to defeat the News's motion to dismiss. Because that holding was incorrect, we reverse the judgment of the court of appeals. We further remand this cause to the trial court for entry of a judgment of dismissal and a determination of costs and fees to be awarded to the News under the provisions of the Act. See TEX. CIV. PRAC. & REM. CODE § 27.009.

Justice Brown delivered the opinion of the Court. Justice Busby did not participate in the decision.