The U.S. Fifth Circuit Court of Appeals has certified two unsettled questions of Texas defamation law to the Texas Supreme Court.
Jane Roe v. Leighton Paige Patterson; Southwestern Baptist Theological Seminary (No. 23-40281; No. 24-0368, accepted May 10, 2024) arose from a 2015 lawsuit brought by a former student against the seminary and its president alleging defamation and failing to protect her from sexual assault. A federal district court granted summary judgment for Defendants. Plaintiff appealed. The Fifth Circuit affirmed in part and certified in part.
The Fifth Circuit’s request focuses on two statements Plaintiff alleged to be defamatory. The first came from a press release by the president’s lawyer that Plaintiff “had given . . . many contradictory statements.” The Fifth Circuit agreed with the district court that the statement could be interpreted as accusing Plaintiff of being untruthful. Plaintiff, however, failed to prove damages for mental anguish because she presented not direct evidence of “the nature, duration, and severity of the mental anguish, which caused a substantial disruption in the claimant’s daily routine” (citations omitted). As to the first defamatory statement, therefore, the 5th Circuit affirmed the district court.
The certified question, however, arose from second allegedly defamatory statement. This statement came from a letter submitted by seminary donors to the seminary’s board of trustees, in which the donors defended the president and made several allegations about Plaintiff, including that she had engaged in consensual sexual activities in campus buildings, lied about the rape, texted nude pictures of herself to the alleged perpetrator, and made false statements to police. Plaintiff argued that the president is vicariously liable for making these statements because his assistant participated in supplying information for and drafting the letter. This assistant also provided a draft of the letter to the president’s lawyer for approval and communicated the president’s appreciation of the letter after it was published. “We are persuaded,” the Court wrote, that the summary judgment evidence creates a genuine issue over whether [the assistant] was indeed acting as [the president’s] agent and ‘for the accomplishment of the objective of the agency,’ during his involvement with the letter” (citations omitted). However, the Court could not conclude, based on Texas law, whether “assuming agency, [the president] can be liable for the allegedly defamatory statements in the letter.”
Consequently, the Court determined asked for SCOTX’s response to two questions: (1) whether a person can be held liable for supplying defamatory material to another for publication; and (2) “if so, [whether] a defamation plaintiff [can] survive summary judgment by presenting evidence that a defendant was involved in preparing a defamatory publication, without identifying any specific statements made by the defendant.”
SCOTX has not yet scheduled oral argument.
