DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION Opinion by Justice Schenck The Constitution forbids all three branches of government from suppressing or proscribing speech, particularly speech on matters of public concern and debate. The state and the state courts may not deploy tort law to achieve that purpose without violating our own constitution and the First and Fourteenth Amendments of the federal Constitution. Because the plaintiffs’ claims in this case seek to suppress and punish speech any reasonable observer would see as a criticism of past judicial decision-making, I believe it is especially perilous to overlook the obvious implications this suit has to the First Amendment and the judiciary alike. The legislature has directed us to be on the watch for such efforts and to bring them to a prompt halt with reimbursement of the interim costs. I would follow that direction. I. When does life begin for purpose of its recognition under the states’ police powers and protections—conception, viability, birth, or some other time? Is the federal Constitution properly read to include a right to privacy that forecloses the states’ plenary power to answer those questions in the rough and tumble political process associated with the legislative process? And, in answering that second question in Roe v. Wade, did the United States Supreme Court remove the answers Texas gave to the first question both from its law books and its permitted public discourse? All but the last of these questions have intensely divided public and legal opinion alike for four decades. It will likely come as a surprise to many, then, that by framing the last question as one of fact actionable (and suppressible and punishable) under state tort law, these first two questions are set to be answered in a civil jury trial in a Dallas County district courtroom. Until recently, perhaps, no one would seriously doubt that citizens had the absolute right to differ with their government, and not only to think their own thoughts about when life begins,[1] but to speak them aloud in the form of disagreeing with judicial pronouncements—even ones venerated by what would be the other side of a political debate—such as the controversial holding in Roe. Nevertheless, this lawsuit unavoidably seeks to penalize[2] a statement premised on the opinion that life begins at some point prior to the moment that Roe and its progeny permit the state’s interest in protecting the potential for life to control.[3] Our panel opinion turns aside the Texas Citizen’s Participation Act’s (“TCPA”) appeal seeking recognition and protection of the free speech implications this case presents. As detailed below, I disagree with the panel’s holding. Accordingly, I dissent from the Court’s denial of appellants’ request for en banc reconsideration. II. This appeal originated from the trial court’s denial of appellants Mark Lee Dickson (“Dickson”) and Right to Life East Texas’s (“RLET”) Motion to Dismiss appellees’ defamation and conspiracy to defame claims under the TCPA. Dickson is opposed to abortion and has encouraged cities throughout Texas to enact ordinances that outlaw abortions within their city limits. The City of Waskom enacted such an ordinance. Following the Waskom’s enactment of the ordinance, Dickson and RLET made various comments about abortion and the Waskom’s enactment of an ordinance declaring abortion illegal within the city’s limits.[4] Given this context of an ongoing and heated national debate over Roe and a controversial local ordinance related to that debate, one would assume that our common law would not attempt to regulate speech about either the validity of the ordinance or the Supreme Court decision it confronts, or to “penalize” either viewpoint in that debate, but would instead assiduously constrain its reach to avoid those constitutional thickets. Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 13 (1970) (“This case involves newspaper reports of public meetings of the citizens of a community concerned with matters of local governmental interest and importance. The very subject matter of the news reports, therefore, is one of particular First Amendment concern.”). As detailed below, I do not believe our law does or should reach these statements or attempt to subject them to the penalties sought below for uttering them. Further, had the legislature not already directed us to so declare and promptly, I believe the federal and state constitutions would compel us to act on our own account. III. THE TCPA AND COMMON LAW DEFAMATION Our panel does an excellent job of identifying the statements at issue and considering their potential for a favorable verdict if the statements may be treated as questions of fact. So far as it goes, I agree with the panel’s treatment of the issues; but the first and most immediate problem is fairly pedestrian: does the common law[5] recognize a viable claim here? Our sister court in Amarillo has examined the very controversy presented in this case and has determined that the speech involved here falls within the TCPA and that the plaintiffs cannot make out the prima facie case that the statute would require to permit the case to proceed. See Dickson v. Lilith Fund for Reprod. Equity, No. 07-21-00005-CV, 2021 WL 3930728 (Tex. App.—Amarillo Sept. 2, 2021, no pet. h.) (mem. op.). I agree in full with my colleagues’ analysis there and will address it primarily in relation to my broader concern that a contrary reading would implicate the First Amendment. The Defamation Standard Should Not Be Applied or Expanded to Function as a Restraint on Protected Political Speech Dickson’s statements decrying appellees’ promotion of abortion procedures as “murder” and their activities as “criminal” clearly amount to opinion or rhetorical hyperbole,[6] as our colleagues in Amarillo have explained. Lilith, 2021 WL 3930728, at *6; see also Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 795 (Tex. 2019); Backes v. Misko, 486 S.W.3d 7, 26 (Tex. App.—Dallas 2015, pet. denied). Whether an utterance is an opinion or rhetorical hyperbole turns not on what the speaker intended but what a reasonable person would believe and presents as a question of law for the court to decide. Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). It is of no moment whether one parses the issues as part of the plaintiffs’ case or as an affirmative defense. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d); Baumgart v. Archer, 581 S.W.3d 819, 825 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). The panel, however, treats both statements as actionable statements of fact for which the defendants must stand trial and face potential punishment, notwithstanding the potential chilling effect either might have on their or others’ speech. In doing so, the panel, unintentionally I suspect, embraces a reading of our defamation law that would extend it to opinion and rhetorical hyperbole, and constitutional infirmity, as detailed below. Courts and Juries Are Not Equipped to Decide Political Disagreements As we ponder the reach of our state tort law, we should recall that Dickson is hardly alone in expressing himself in forceful or hyperbolic ways about public matters[7] like the municipal ordinance at issue here. Suppose, just by way of example, someone was to take to an international medium viewable from any part of the state to declare that Texas Governor Greg Abbott is “a psychopathic murderer.”[8] While the Governor as a public figure would be required to show heightened scienter as to falsity, regardless of the venue, rural or urban, the underlying defamation claim would be the same. That court would thus face the same question we have here: would a reasonably intelligent listener understand this statement to be one of fact or political hyperbole or relating to an ongoing debate over challenging public health policy questions? A question of “fact” in Dallas is a question of fact in Cut and Shoot as well. Are we to have rural and urban juries with varying views on the issue of abortion deciding whether speech concerning same is actionable, potentially coming to different conclusions? Given the propensity any merits judgment in this case would have to foment, rather than resolve, civil conflict and to politicize the judiciary, I would favor a reading of our defamation law that would avoid the constitutional conflict that would stem from reading any of these statements as “factual” as opposed to political hyperbole. This would leave the political debate on the floors of the legislative bodies and in the town squares where the remedy of further speech is freely available, permitting the judiciary to play a more sober role only where unprotected and provably false, genuine factual assertions are involved. Cf. Fam. Planning Spec. v. Powers, 46 Cal. Rptr. 2d 667 (Cal. Ct. App. 1995) (suit brought by doctors identified by name in pamphlet and said incorrectly to employ a gruesome form of late-term, partial breech extraction). As a contrary reading increases the prospect for lawsuits on a myriad of topics already boiling amongst a polarized nation over which the Constitution assures the various points of view a voice free from judicial suppression, short of imminent threats of violence or incitement of riots, I would not construe such statements as potentially actionable under our defamation law. Our reading of the substantive law to the contrary insufficiently considers the chilling effect such litigation (or threats of it) would have on protected political speech.[9] What Will Our Jury Be Answering Here, If Not Questions of Opinion and Permissible Political Viewpoints? Obviously, the political and jurisprudential debates over Griswold‘s recognition of a right to privacy and Roe‘s application of it to abortion are not questions state courts are capable of resolving. In my view, however, further injecting the judiciary into that debate[10] is inappropriate and inadvisable— particularly in a state that has chosen partisan election of its appellate judiciary. And, yet, by attacking statements challenging Roe‘s validity (and defending an ordinance doing the same) as false statements of fact, this seems unavoidably to be the path this case has set for us. Dickson’s statements are no doubt pointed and offensive to his targets. Believing as he does that life begins at conception, he decries their advocacy of abortion services as “murder.” And, urging that Texas statutes criminalizing the procedure remain unrepealed, if unenforceable, and that the act of performing any abortion is a “crime,” he thus decries the enterprise as a “criminal organization.” To be actionable, however, these statements must be both factual and incorrect. Again, the statement’s intended effect on the listener is not part of the analysis. See Carr, 776 S.W.2d at 570. Unless our jury is to answer when life begins or opine on the jurisprudential correctness of Roe, how are these statements to be weighed as “factual” matters at all, rather than matters of opinion or rhetorical hyperbole (leaving aside their political or protected nature for the moment)? I believe that any reasonable observer would view them as opinion and rhetoric and that the TCPA requires justices on appeal to make that judgment if the statute is to have its intended effect. But what of the statement that the plaintiffs are “criminal organizations” presumably involved in a crime? Is not the accusation of criminal conduct a statement of fact and defamatory? That may be, but what then is the factual “crime” that Dickson ascribes to the plaintiffs? If one wishes to engage in the debate over whether the Texas statutes regarding murder remain extant but dormant, how is that a factual, rather than legal inquiry? Why or how would a jury ever be empowered to give a helpful answer to that question? How would a jury be instructed to answer that question?[11] Ignoring the antecedent logical problem of what crime an observer would ascribe from Dickson’s statements, the answer to the factual component of that question (if there is one) is obvious: the “crime” is “murder.” Dickson helps us with that as he says as much directly. That position, obviously, is grounded in his opinion that life begins at conception—a view even the majority in Roe saw as incapable of being proven in a court of law. 410 U.S. at 159; Benton, 94 S.W.3d at 580. The constitution protects Dickson’s right to state his opinion that life begins at conception and, as a result, that abortion is murder. To suggest that the statement that “abortion is murder” is protected as a statement of opinion or rhetoric but that it is a “crime” is not protected strains comprehension. To be sure, jurors could be exposed to the esoteric legal debate over the authority of federal courts to strike down (rather than declare unenforceable) state laws. But, ignoring that this is not a “factual” matter at all, even the effort to put this issue and speech on trial risks the appearance of the judiciary quashing dissent and opposition to its own work product. Citizens have the right to disagree with Supreme Court holdings. Having the state judiciary adjudicate and declare the speech to be unlawful and punishable risks the resulting trial resembling a seditious libel case—one brought to punish unlawful speech critical of and seeking to alter their government. This form of libel, of course, was the one form thought to directly be prohibited by the First Amendment from the outset. New York Times Co. v. Sullivan, 376 U.S. 254, 295 (1964) (Douglas, J., concurring) (“[S]ince the adoption of the Fourteenth Amendment a State has no more power than the Federal Government to use a civil libel law or any other law to impose damages for merely discussing public affairs and criticizing public officials.”). Because the challenged statements in this case are opinion and rhetoric, they should not be actionable at common law. Lilith, 2021 WL 3930728 at *3. The TCPA Requires Us to Consider the Free Speech Concerns This Case Presents The TCPA is found in a chapter of our civil practice and remedies code titled “Actions Involving the Exercise of Certain Constitutional Rights.” See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–27.011. I believe we are obliged under that statute to consider and make a judgment (quickly) about whether the case may go forward. As our supreme court has said: “The TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.” In re Lipksy, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding). Necessarily implied in that binary formulation is the notion that the former cannot be the latter: speech likely to be understood as political debate and protected as such is protected by the federal and state constitutions and is not the makings of a meritorious lawsuit. I understand that this has the effect of depriving the plaintiffs of the potential fruits of a jury’s assessment, but this is precisely what the TCPA and the Constitution command of us, lest the prospect of juries and the costs of litigation be deployed as a tool of suppression of protected speech with the judiciary facilitating the suppression. As the broad language of the TCPA has compelled us to struggle with and recognize seemingly incompressible applications of its scope, finding it to apply here but not to cover the speech at issue leaves the act with no center. EVEN COMMON LAW SPEECH RESTRAINTS RAISE CONSTITUTIONAL IMPLICATIONS THAT WE CANNOT AVOID. Appellants urge that continuation of this lawsuit would impinge on their constitutional right to free speech. I agree. As noted, I believe that this concern informs the reach of the substantive defamation law and is embraced by the TCPA. But, even if the TCPA did not already direct us to consider that question, I believe we would be compelled to do so directly given the constitutionally protected speech interests at stake here. I assume that no one would contend that the speech at issue in this case could be foreclosed by an injunction, as the Supreme Court has already so held. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 760, 775 (1994) (signs displayed in front of doctor’s home decrying him as a “baby killer” protected). The question, then, is whether our tort law can be read to permit a claim for actual and punitive damages after the fact in light of its effect on protected speech. Both the United States Constitution and the Texas Constitution protect freedom of expression. The First Amendment applies to the states through the Fourteenth Amendment. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996). The Supreme Court has made clear that state “judicial action is to be regarded as action o[f] the State for the purposes of the Fourteenth Amendment” as a general matter. Shelley v. Kraemer, 334 U.S. 1, 15 (1948). Thus, actions within state courts, including and especially those targeted at protected speech, constitute state action subject to First and Fourteenth Amendment scrutiny. Fla. Star v. B.J.F., 491 U.S. 524, 541 (1989); Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992). Even in its present interlocutory posture, this case mirrors the question posed in New York Times Co. v. Sullivan: Although this is a civil lawsuit between private parties, the [Texas] courts have applied a state rule of law which [defendants] claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that the law has been applied in a civil action, and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised. 376 U.S. at 283. The constitutional safeguard afforded by the First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Id. at 269. Even if the state’s defamation law purported to reach to and proscribe rhetoric or purported to leave its recognition to a jury,[12] the judiciary cannot be used to constrain speech on a matter of public concern by subjecting the speaker to liability for civil damages. Greenbelt, 398 U.S. at 13–14; Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002) (Constitution protects rhetorical hyperbole made in debate over public matters). It makes no difference if the speech is critical or offensive to its listener. Popular speech needs no protecting, and there is no right to not hear critical or offensive speech. See Boos v. Barry, 485 U.S. 312, 322 (1988) (“As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”). Speech consisting of rhetoric on matters of public concern and likely to be so understood in the perception of a reasonable person is protected under the Constitution. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); Bentley, 94 S.W.3d at 579; see also 1 Rodney A. Smolla, Law of Defamation § 4:13 (2d ed. 2005) (“[A] doctor who performs abortions may be faced with the specter of protesters marching in front of his or her clinic with signs declaring that the doctor is a ‘murderer.’ The word ‘murder’ in this context, again, is obviously not intended to be taken in its literal sense, but rather as an expression of the protesters’ view that abortion is tantamount to murder.”). This protection should extend to relief not only from an adverse final judgment, but from the chilling effect of the costs of litigation prior to judgment and the interim threat of punitive damages. Treating the question as one of fact for a jury is contrary to controlling law and our obligation to make an independent appellate determination of the claims’ impact on protected speech. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984); Bentley, 94 S.W.3d at 590. It also subjects protected speech to the chilling effects of the massive interim costs. Cf. Christiansburg Garment Co. v. Equal Empl. Opp. Comm’n, 434 U.S. 412, 421 (1978).[13] For that reason, even if we were not directed by the legislature to do so in the TCPA, I would recognize the need to bring this case to an end directly in view of our own constitutional guarantee of free speech and as part of the judiciary’s obligation to provide for the efficient administration of justice. TEX. CONST. art. V, § 31 & art. I, § 8. CONCLUSION This lawsuit seeks to chill constitutionally protected speech and advocacy. The speech involved in this case is the quintessential example of what the TCPA was enacted to protect. Juries and judges are no more able to answer the questions involved here than the body politic has been over these past decades. Any judgment entered on the merits in this case can only chill the public debate and breed resentment toward the courts. Accordingly, I would reverse the trial court’s denial of the motion to dismiss without delay and remand with instructions to award appropriate attorney’s fees to the defendants. Because the panel decision directly conflicts with the holding of another court of appeals, impinges on a fundamental right, and injects the judiciary into an intractable political debate, I would grant the motion for en banc reconsideration. /David J. Schenck/ DAVID J. SCHENCK JUSTICE 200988HD.P05
