The Texas Supreme Court has ruled that characterizing abortion support organizations as “murderers” engaged in criminal activity is constitutionally protected political speech.

In two cases consolidated for oral argument, The Lilith Fund for Reproductive v. Mark Lee Dickson and Right to Life East Texas (No. 21-0978) and Mark Lee Dickson and Right to Life East Texas v. The Afiya Center and Texas Equal Access Fund (No. 21-1039), the Court upheld a decision of the Amarillo Court of Appeals affirming dismissal of the funds’ defamation claims under the Texas Citizens Participation Act (Ch. 27, CPRC). At the same time, it reversed the Dallas Court of Appeals, which determined that the funds’ defamation claim defeated TCPA dismissal because the use of the term “murderer” as applied to the funds could not be objectively verified by the court as true because it does not comport with the Penal Code definition of “murder.”

In an opinion by Justice Bland, the Court concluded that Dickson’s statements “are protected opinion about abortion law made in pursuit of changing the law, placing them at the heart of protected speech under the United States and Texas Constitutions,” even as applied to “specific advocacy groups that support abortion rights.” Additionally, the statements made no threats against the groups or encourage violence against them, and no reasonable reader would perceive the statements as conveying false information about the groups, only that they expressed Dickson’s opinion about the “legality and morality of their conduct.” It is interesting to note, however, that the Court left open the possibility that similar statements could forfeit constitutional protections if they advocated violence against the funds or falsely alleged that the funds and individuals associated with them committed specific acts of “murder.”

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