A Texas District Court ruled last year that Allison Publications, owners of D Magazine, violated the rights of a black freelance writer, “Maya Pembledon,” by filing a “frivolous” lawsuit against her. The writer had set out to expose “racist advertising and hiring practices” she believed had been occurring at the magazine. The court ruled against Allison Publications, issuing a $10,000 fine as a sanction to discourage future lawsuits of this nature.
Allison Publications, D Magazine’s parent organization, has now filed an appeal with the Second District Court of Appeals in Texas, alleging that the lower court erred in several critical areas of law when ruling against D Magazine and its controversial editor, Tim Rogers.
The appeal states that the counsel for Allison Publications believes the court incorrectly dismissed the publication’s defamation lawsuit by misinterpreting the Texas Citizens Participation Act. The TCPA is intended to prevent companies and wealthy individuals from using the courts to silence members of the public attempting to exercise free speech.
The appeal claims that the court could not apply the rules of the TCPA on the basis that the defendant is known by court records only as “Jane Doe” and publishes articles under the pen name “Maya Pembledon.” Her identity is unknown, even to her own counsel, according to the appeal.
The appeal asks the court to consider whether the TCPA can be applied and whether fines can be levied when the defendant is an unknown person. The appeal also asks the court to consider “a nationally percolating question about the standard for ‘unmasking’ anonymous speakers.”
Attorneys for Allison explain at length in the appeal the potential issues with judgments to anonymous individuals through the courts, claiming the outcome of the lower court case to be “unprecedented.” The largest issue the appeal notes is that Allison Publications has no way to know who they are actually suing, or for that matter, paying fines to, when that person remains anonymous.
The precedent, according to the appeal, results in businesses (in this case, a publication) having no legal recourse against defamation.
Allison Publications had requested that the court “unmask” Pembledon, but the court refused to do so, and lawyers for the publication claim the reason why is unclear. Pembledon has refused to provide her true identity, fearing retribution by “white business owners and journalists” according to the writer’s preliminary statements in the original case.
The original defamation suit dismissed by the court was filed by Allison Publications and alleged that Pembledon had contacted businesses that pay to advertise in D Magazine and accused the publication of “being racist” and that advertisers were asked how they felt about being represented by “racists.”
D Magazine argued that the questions, and the nature in which they were asked, did not amount to a journalistic effort and should not be considered protected free speech under the TCPA or the First Amendment.
The trial court disagreed with Allison Publications and found for the defendant in September 2021. Court records show that the trial court ordered Allison Publications to pay $10,650 to “Jane Doe” for attorney’s fees and an additional $10,000 in sanctions.
Attorneys for the involved parties did not respond to comment for this article.
For more news related to this story, see how a black journalist alleged racism by D Magazine and its publisher, then got sued.