The Dallas Court of Appeals has affirmed a Dallas trial court’s denial of a motion to dismiss a defamation claim under the Texas Citizen Participation Act. The Court’s opinion, authored by Justice Pederson, III and joined by Justices Nowell and Osborne, holds that the TCPA does not shield a defendant from publishing false and defamatory statements that characterized two groups that assist women seeking abortions as murderers and criminal organizations.
The case, Mark Lee Dickson and Right to Life East Texas v. The Afiya Center and Texas Equal Access Fund (No. 05-20-0988-CV) arose from the enactment of an ordinance by the City of Waskom that outlawed abortion, which initially declared abortion to be “an act of murder, with malice aforethought,” and named specific groups, including the defendants as criminal organizations. The final version of the ordinance deleted the reference to specific groups, but retained the offense of assisting a person in obtaining an abortion. Following adoption of the ordinance, the defendant made television appearances and posted several statements on Facebook touting the ordinance and once again naming the plaintiffs and other groups as “criminal organizations in Waskom, Texas.” The plaintiffs brought suit for defamation and conspiracy. The trial court denied the defendants’ TCPA motion to dismiss.
On appeal, the defendants argued that the TCPA protected their speech and that the plaintiffs could not make the requisite showing by clear and specific evidence that: (1) the defendants had made a false statement of fact, (2) that defendants had made the statements with malice or negligence, or (3) that defendants had suffered damages as a result of the statements. The defendants argued further that even if those showings were made by clear and specific evidence, the speech was still protected because they were true or substantially true or were “constitutionally protected opinion or hyperbole.”
The court of appeals rejected each of these arguments in turn. It found that the plaintiffs had provided clear and specific evidence, as required by the TCPA, establishing a prima facie case for the essential elements of a defamation action. This case requires a showing of the publication of a false statement of fact to a third party that defamed the plaintiff, the requisite degree of fault, and damages. The court of appeals determined that the plaintiffs met this burden by showing, as a matter of verifiable fact, that they were neither murderers nor “criminal organizations.” The court concluded that the Texas Penal Code, which is objectively verifiable, specifies that abortion is not murder and that a person who performs or assists a lawful abortion is not a criminal.
With respect to the degree of fault element, the court of appeals ruled that the defendants were not limited purpose public figures for purposes of applying an actual malice standard on the basis that the person against whom a defamatory statement is alleged may not create its own defense by making the claimant a public figure. It concluded that the defendants knew or should have known that their statements were false based on the clear state of Texas law at the present moment. Finally, both the defendants’ “truth” and “rhetorical hyperbole” defenses failed, first, as we have seen, because the statements are verifiably false, and second because, based on the evidence, a reasonable person could conclude that the defendants literally “meant what they said.” Consequently, the court of appeals could not rule as a matter of law that the defendants’ speech was constitutionally protected opinion.
This case is interesting because it engages what everyone thought the purpose of the TCPA was when it was first enacted: to put defamation plaintiffs to their proof early in the case where the rights to speech, petition, and association in matters of public interest are involved. One would assume the defendants will take the matter to SCOTX, where it will undoubtedly attract a lot of public attention from all points on the spectrum.