Texas Supreme Court’s anti-SLAPP rulings confirm and expand journalist protections

posted on 5.03.2016

After several years of negative rulings in successive media-related cases, the Texas Supreme Court has proffered a glimmer of hope in the form of two favorable opinions in the last few weeks.

Both cases involve the application of the state's anti-SLAPP law to fend off nuisance libel actions.

Interestingly, both defamation claims arose out of the same report concerning Salem Abraham, the longest-serving member on the Canadian I.S.D. board of trustees.

Canadian is a small town in the Texas Panhandle.

Also, both Texas Supreme Court opinions were authored by Justice John P. Devine.

In 2012, the online political blog AgendaWise published a story about Abraham’s presence at a campaign event for Texas House of Representatives candidate Jim Landtroop. 

Abraham was a supporter of Ken King, a fellow Canadian school board member, and Landtroop’s primary and primary runoff opponent in Texas HD 88.

Abraham and another Canadian school-district trustee traveled to Levelland, where they listened to remarks from the candidate and also from Gov. Rick Perry.

Following these remarks, the moderator asked if there were any questions for Landtroop, and Abraham was recognized for a question.  

After hearing the nature of Abraham's question, however, the moderator decided to move on, stating that the question was not appropriate for the event.

The meeting was subsequently adjourned, and a Landtroop campaign worker approached Abraham, asking him to leave.  

The court’s opinion said after briefly discussing the matter, “Abraham proceeded to leave, but not before handing out printed materials stating the facts, as he knew them, about Canadian ISD taxes.  

These materials challenged statements in Landtroop's campaign mailer that were critical of King–statements that Abraham also viewed as false criticism of his school district and fellow school-board members.”

Shortly after the meeting, AgendaWise, a politically oriented internet blog, reported on Abraham's attendance at the Landtroop's campaign event.

The online article said “Abraham had to be forcefully removed from a Landtroop campaign event this week by Governor Perry's DPS detail.”

Abraham contacted AgendaWise and its executive director, Daniel Greer, to complain that they had misrepresented his being “forcefully removed” from the meeting.  

In response, Greer and AgendaWise published a correction to the article saying Abraham was asked to leave for heckling and that Abraham cooperated.

Abraham complained again, objecting to the use of the word “heckling” to describe his conduct.  

Greer and AgendaWise again corrected the article, deleting the heckling reference. 

AgendaWise also sent two letters of apology to Abraham over the error, but days later, Abraham sued AgendaWise and Greer for libel.

In the first case, Greer v. Abraham, AgendaWise and Greer sought to dismiss Abraham’s defamation claim by filing a motion to dismiss under the Texas Citizen Participation Act (TCPA), more commonly known as the state’s anti-SLAPP litigation law.

TAB and other groups successfully shepherded the law through the 2011 Texas Legislature.

Greer’s motion noted the posting was on a matter of public concern (a TCPA requirement) and as such Abraham, a public figure, had to present “clear and specific evidence” of actual malice.

The TCPA requires the dismissal of legal actions that impinge on First Amendment rights unless “the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.”  

The trial court dismissed Abraham’s underlying action under the TCPA, concluding that he had not met his burden as to the actual-malice element.  

The Court of Appeals, however, reversed the ruling, concluding that actual malice was not an element of the Abraham's defamation claim because the publication did not mention or relate to his official conduct or his fitness for office.

The Texas Supreme Court reversed the appeals court’s decision by upholding the “actual malice” standard in defamation cases involving public officials.

Hunt Buckley and Alicia Calzada, attorneys with TAB Associate member law firm Haynes Boone LLP, say the decision is important because the court said ”reference to the person’s official capacity is not necessary if they are so well known in their community that they are generally associated with their position.  The relevant community is the community in which the public official serves, not the circulation reach of the story.”

The second case, Sullivan v. Abraham, spoke to the issue of recovery of attorneys’ fees related to successful anti-SLAPP dismissal motions, specifically whether a “justice and equity” standard exists.

Importantly, the court said it did not, a ruling which clarifies the issue for lower courts.

Paul Watler, an attorney with TAB’s Texas legal counsel Jackson Walker LLP, said the court held that “a libel defendant who succeeded on an anti-SLAPP act dismissal motion was entitled to ‘reasonable’ attorney fees unreduced by considerations of ‘justice and equity’.”

It is a phrase appearing in the statutory fee provision of the TCPA.

Delving into the rules of grammar and punctuation, Watler said the court determined that the "justice and equity" factor in the statute modified only litigation expenses, not attorney fees.

Watler said the court was clear – if the Legislature had meant otherwise, it would have added a comma that the court was unwilling to read into the act.

As a result, the court vacated a judgment awarding the defendant political blogger only a tenth of the lawyer fees he actually incurred.

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

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