Two candidates square off in a congressional primary race. One candidate accuses the other of domestic violence. The accused denies the charge and files a defamation claim. The accuser files a motion to dismiss under the Texas Citizens Participation Act (TCPA). The trial court allows the motion to be denied by operation of law. The accused appeals.
These are the facts in Nyanza Moore and Friends of Nyanza Davis Moore v. Derrick Reed (No. 14-20-00463-CV). We’ll be the first to say that if there is a case in which the TCPA should obviously apply, this might be it. A person who files for political office (especially, in this case, a person who has resigned another public office to run for a higher one) cannot by any stretch escape the TCPA’s definition of “public concern,” which encompasses a statement or activity regarding: (1) a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (2) a matter of political, social, or other interest to the community; or (3) a subject of concern to the public (this last subpart is like saying a matter of public concern is a matter of public concern, an odd definition to say the least). Reed argued that the allegedly defamatory statements were not a matter of public concern “because people in the public were not debating the specific issues addressed in [the] publications and the media was not covering any such debate.” But, citing SCOTX authority, the court of appeals opined that “a subject of legitimate news interest” counts, and a person who elects to thrust himself or herself into a political campaign “puts their character in issue as it relates to their qualifications for the office.” Reed’s alleged history of domestic violence clearly fit this bill.
Having established that the TCPA applied, the burden shifted to Reed to make a prima facie case of actual malice by clear and specific evidence. He did not do it. His evidence consisted of verified pleadings with attached exhibits showing Moore’s comments on a Facebook post that Reed had committed domestic violence and had a protective order against him. Even if those statements were not true, the actual malice standard requires more: knowledge of, or reckless disregard for, the falsity of the statement, not ill will, spite, or evil motive (citations omitted). That standard requires the plaintiff to prove that the defendant “‘in fact entertained serious doubts as to the truth of [the] publication,’ or had a ‘high degree of awareness of [the] probable falsity’ of the published information [citations omitted] (i.e., “calculated falsehood”). The plaintiff failed to meet this standard, even though, according to Reed, a logical inference could be made that Moore had serious doubts because she hired an investigator to track down rumors of the protective order. That might also show that Moore was doing her due diligence, but it does not show actual malice. Moreover, Reed failed to present any evidence regarding the reliability of statements made to Moore regarding the rumors about Reed. No clear and specific evidence, no relief from the TCPA. The court of appeals remanded to the trial court with orders to grant the motion to dismiss and to determine costs and attorney’s fees owing to Moore under the TCPA.
We see so many cases of improper use of the TCPA, that it is refreshing—and interesting—to see one that actually engages the core mission of the statute. In any event, if political candidates don’t have a thick hide, they probably ought to stay on the sidelines, the TCPA notwithstanding.
