Another Texas Supreme Court Win For The TCPA
On June 30, 2017, the Texas Supreme Court issued its latest judgment and opinion in a case involving the Texas Citizens Participation Act (the “TCPA”). The TCPA is Texas’s version of an anti-SLAPP statute, protecting a broad swath of communications by providing a procedure for quick dismissal of legal actions that are “based on, relate[d] to, or in response to” a person’s exercise of the right to free speech, petition, or association. The activity that constitutes the “exercise of” the “right of free speech,” “right to petition,” or “right of association” is communication. Tex. Civ. Prac. & Rem. Code, § 27.001(2), (3), and (4) (defining “exercise of” the right to free speech, the right to petition, and the right of association to include a “communication”); Serafine v. Blunt, 466 S.W.3d 369, 372 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring) (explaining that communication is “the act that distinguishes ‘the exercise of’ each of the rights within each of their respective definitions”). A communication “includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code, § 27.001(1).
In Hersh v. Tatum, the Court resolved an important issue–since the TCPA protects communications or speech, can a defendant who denied making the communication at issue avail herself of the protections of the TCPA? The Court held that she could.
Paul Tatum, a high-school junior, committed suicide after wrecking his mom’s car. Given that he did not have any history of mental illness, his parents, John and Mary Ann Tatum, believed that trauma from the car wreck was the catalyst for his suicide. The paid obituary stated that he died “as a result of injuries sustained in an automobile accident.”
At the time of Paul’s death, Julie Hersh, an advocate for mental health and suicide prevention, was promoting her book Struck by Living, which related her own struggle with depression. Much of her advocacy related to removing the stigma associated with mental illness and suicide. Eleven days after Paul’s death, Ms. Hersh published a blog post advocating for transparency in obituaries, based on her belief that families who omit suicide as the cause of death in a family member’s obituary prevent awareness of mental-health issues. The blog post did not mention Paul.
Hersh met with Steve Blow, a writer for the Dallas Morning News who she knew, to discuss her views on suicide, hoping he would write a column and mention her book. A few weeks later, Blow did write a column advocating for greater transparency in obituaries when the cause of death was suicide, specifically mentioning the paid obituary for Paul. While his column did not otherwise mention the Tatums, the quotation from the paid obituary made clear that he was referring to Paul’s suicide.
The Tatums sued Hersh for intentional infliction of emotional distress. In their petition as quoted by the Court, they claimed that Hersh “went to Blow and encouraged him to make the Tatum tragedy public”; that she “promoted Paul’s death and the [o]bituary to Blow . . . as ‘news’” and “incited Blow to write about suicide in obituaries”; “[d]uring that conversation . . . the two discussed the details of the Tatum death and his [o]bituary” with Hersh “feeding the details of the Tatum tragedy to Blow”; and Hersh “encouraged Blow to use [the obituary] as a demonstrative and a specific example of the alleged problem discussed in her blog.” Their claim, according to their petition as quoted by the Court, “turn[s] simply on whether Hersh’s actions in exploiting the tragedy of a grieving family for her personal gain by encouraging [Blow] to criticize [Paul’s obituary] constitute extreme and outrageous conduct.” Hersh moved under the Act to dismiss the Tatums’ action.
Both Hersh and Blow denied discussing Paul’s death in their conversation, but otherwise admitted that they had the conversation. The issue, then, was whether the TCPA protects a defendant who denies making the specific communication made the basis of the legal action. The Court held that it does.
The Court referred to Section 27.006(a), which requires the trial court, “[i]n determining whether a legal action should be dismissed . . . ,” to “consider the pleadings” as well as affidavits. The Court pointed out that “it would be impossible to determine the basis of a legal action, and thus the applicability of the [TCPA], without considering the plaintiff’s petition.” The Court then (rightly, I believe) observed that “[t]he basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” While Section 27.005(b) requires a defendant to show the basis of the legal action “by a preponderance of the evidence,” the Court determined that this section must be read in harmony with Section 27.006(a). The Court held that “When it is clear from the plaintiff’s pleadings that the action is covered by the [TCPA], the defendant need show no more.” In his concurring opinion, Justice Boyd criticized the majority for focusing on the “based on” language in the statute, asserting that by doing so the majority had “improperly and unnecesarily limit[ed]” the “scope and effect” of the TCPA. For Justice Boyd, it was sufficient that the legal action was “related to” or “in response to” Hersh’s communication with Blow about suicide prevention, a matter of public concern, and the legal action was “related to” or “in response to” that communication, regardless of whether Hersh ever mentioned Paul to Blow.
The opinion and judgment in this case is just the latest in a handful of TCPA cases decided by the Texas Supreme Court. The vast majority of those cases have resulted in wins for the TCPA and the litigants relying upon it. If Justice Boyd’s concurrence is any indication, the Texas Supreme Court will probably continue its broad interpretation of the TCPA and provide defendants with the broad protection the TCPA mandates.