The Lilith Fund for Reproductive Equity v. Mark Lee Dickson and Right to Life East Texas ( 2023 )

Supreme Court of Texas
══════════
No. 21-0978
══════════
The Lilith Fund for Reproductive Equity,
Petitioner,
v.
Mark Lee Dickson and Right to Life East Texas,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════
~ consolidated for oral argument with ~
══════════
No. 21-1039
══════════
Mark Lee Dickson and Right to Life East Texas,
Petitioners,
v.
The Afiya Center and Texas Equal Access Fund,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════
Argued October 26, 2022
JUSTICE BLAND delivered the opinion of the Court.
JUSTICE DEVINE filed a concurring opinion, in which Justice
Blacklock joined.
In these companion cases, advocacy groups supporting legalized
abortion have sued an opponent of it, claiming that he legally defamed
them by making statements that equate abortion to murder and by
characterizing those who provide or assist in providing abortion,
including the plaintiffs, as “criminal” based on that conduct. The
speaker responded that his statements represent his opinion about that
conduct as part of his advocacy for changes in the law and its
interpretation.
Two courts of appeals considered whether the speaker’s
statements could be defamatory and reached opposite conclusions. One
court of appeals placed the statements in the context of the ongoing
moral, political, and legal debate about abortion. It concluded that the
statements are political opinions that voice disagreement with the legal
protections afforded to abortion providers. That court of appeals ordered
the suit dismissed.
The other court of appeals examined whether a court could legally
verify the speaker’s statements—in other words, it asked whether
abortion met the legal definition of murder under the Texas Penal Code
at the time. Concluding that the speaker’s statements were inconsistent
with the Penal Code, that court of appeals permitted the defamation suit
to continue.
We granted review to resolve the conflict between the two courts.
We hold that the challenged statements are protected opinion about
2
abortion law made in pursuit of changing that law, placing them at the
heart of protected speech under the United States and Texas
Constitutions. Such opinions are constitutionally protected even when
the speaker applies them to specific advocacy groups that support
abortion rights. In our state and nation, an advocate is free “to speak,
write or publish his opinions on any subject,”1 perhaps most especially
on controversial subjects like legalized abortion.
An examination of the statements and their context shows no
abuse of the constitutional right to freely speak. The speaker did not
urge or threaten violence, nor did he misrepresent the underlying
conduct in expressing his opinions about it. Either potentially could
have removed his constitutional protections.
The Texas Citizens Participation Act provides for early dismissal
of lawsuits that chill a citizen’s exercise of free speech unless the lawsuit
has merit. Because the speaker in this case properly invoked the Act and
the plaintiffs failed to adduce evidence of defamation in response, these
cases must be dismissed. Accordingly, we affirm the judgment of the
court of appeals that dismissed the defamation suit before it, and we
reverse the judgment of the court of appeals that permitted the
companion suit to advance.
I
A
The events giving rise to these two lawsuits occurred in the years
preceding the United States Supreme Court’s decision in Dobbs v.
1 Tex. Const. art. I, § 8.
3
Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). During
that time, many groups and individuals vigorously sought to uphold and
expand access to legal abortion. Others just as vigorously sought to
criminalize abortion, advocating that the United States Supreme
Court’s decisions in Roe v. Wade, 410 U.S. 113 (1973), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),
which afforded constitutional protections to some abortions, should be
overturned. In the wake of Dobbs, their advocacy positions with respect
to the law as it stands in Texas are now reversed.
The Lilith Fund for Reproductive Equity, the Afiya Center, and
Texas Equal Access Fund—the plaintiffs in these cases—publicly
advocate for legalized abortion. Mark Lee Dickson and Right to Life East
Texas—the defendants in these cases—publicly advocate against
legalized abortion.
The dispute between these opposing sides to the debate centers
on Dickson’s activities in East Texas. In June 2019, Dickson successfully
lobbied the city council in Waskom, Texas, to pass an ordinance
declaring the town to be a “Sanctuary City for the Unborn.”
The 2019 Waskom Ordinance states that abortion is “an act of
murder with malice aforethought,” and it conditionally criminalizes
aiding or abetting most abortions should the United States Supreme
Court overrule Roe v. Wade. The Ordinance initially listed the plaintiffs
in these suits, among others, as “criminal organizations” that “perform
abortions and assist others in obtaining abortions.”2 Though the
2 A year later, Waskom repealed and replaced the Ordinance with a
version that omits the identification of any “criminal organizations.”
4
Ordinance is the genesis of this controversy, the plaintiffs have not sued
the City of Waskom, nor do they seek to set aside the Waskom Ordinance
based on a legal or constitutional challenge. Instead, the plaintiffs
challenge Dickson’s speech in the wake of the Ordinance’s passage.
Shortly after the City passed the original Ordinance, Dickson
posted statements about it to his Facebook page and to the Right to Life
East Texas Facebook page. In his posts, he encouraged others to join his
campaign to bring similar ordinances to other Texas cities. In one post,
he asks readers to sign a petition favoring such ordinances. In another,
he quotes the Ordinance and identifies the plaintiffs in this case as
“criminal organizations.” In other posts, Dickson writes that the
plaintiffs “exist to help pregnant Mothers murder their babies” and
“murder innocent unborn children.” Dickson appended hashtag links to
attract views from like-minded readers and to direct them to other
messages opposing abortion.
Readers responded in the comments section of Dickson’s posts
with statements of their own. Some comments supported Dickson’s
views and others opposed them, with both sides at times employing fiery
language. The plaintiffs also responded with billboards near Waskom
that presented their opposing message, that “abortion is freedom.”
CNN reported on the controversy, quoting Dickson as saying:
“The idea is this: in a city that has outlawed abortion, in those cities if
an abortion happens, then later on when Roe v. Wade is overturned,
those penalties can come crashing down on their heads.”
In June 2020, the plaintiffs wrote Dickson and Right to Life East
Texas, requesting that Dickson retract his statements labeling plaintiffs
5
as “criminal organizations.” The plaintiffs asked Dickson to “specifically
clarify that neither you, nor to your knowledge anyone else, has any
evidence or reason to believe that any of the organizations named above
nor any of their agents has committed any acts in violation of the
criminal laws of the United States or of any state or local government.”
Dickson did not reply.
B
One week later, the Afiya Center sued Dickson and Right to Life
East Texas in Dallas County. The same day, the Lilith Fund filed a
nearly identical suit against Dickson and Right to Life East Texas in
Travis County. In both suits, the plaintiffs allege that Dickson’s
statements are legally defamatory because they connect the plaintiffs
with “literal, criminal murder.” The plaintiffs further allege that Right
to Life East Texas engaged in a “conspiracy to commit defamation” by
permitting Dickson to post his statements on its Facebook page.
Dickson and Right to Life East Texas moved to dismiss both suits
under the Texas Citizens Participation Act.3 Under the Act, a court
“shall dismiss” a legal action based on the defendant’s exercise of the
right to free speech, unless “clear and specific evidence” establishes “a
prima facie case for each essential element of the claim in question.”4
Among other arguments, Dickson contended that he made no false
statements of fact because (1) it is not defamatory to quote or report on
a city ordinance; (2) his characterization of abortion as murder is a true
3 Tex. Civ. Prac. & Rem. Code §§ 27.001–.011.
4 Id. § 27.005.
6
statement; and (3) it is not defamatory to characterize the plaintiffs as
criminal organizations in this context because his use of “murder” is
“obviously not intended to be taken in its literal sense, but rather as an
expression of [his] view that abortion is tantamount to murder.”5
Dickson further argued that the plaintiffs are limited-purpose public
figures who did not establish that he acted with actual malice, which
requires knowledge of, or reckless disregard for, the falsity of the
statement.6
The plaintiffs responded that Dickson falsely characterized
abortion as murder when it was no such thing under Texas law, and to
call them “criminal organizations” based on this characterization when
some abortions were legal in Texas is defamatory.
The Travis County district court did not rule on Dickson’s motion
to dismiss, and it was denied by operation of law.7 The Seventh Court of
Appeals reversed.8 The court of appeals concluded that “a reasonable
person of ordinary learning would deem [the] accusation about Lilith
being a criminal entity engaged in criminal acts as opinion,” which the
speaker made in seeking “a change in law.”9 The context surrounding
Dickson’s comments is “an indisputable part of the entire canvas upon
which he left his words,” and that context, the court concluded, informed
5 See 1 Rodney A. Smolla, Law of Defamation § 4:13 (2d ed. 2005).
6 See Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016).
7 See Tex. Civ. Prac. & Rem. Code § 27.008(a).
8 647 S.W.3d 410, 419 (Tex. App.—Amarillo 2021).
9 Id. at 417.
7
a reasonable person that Dickson’s statements were not intended to be
taken literally.10
In the other lawsuit, the Dallas County district court denied
Dickson’s motion, and the Fifth Court of Appeals affirmed.11 The court
of appeals undertook to determine whether the statement “abortion is
murder” was objectively false, and it sought to verify whether abortion
fell within the definition of murder in the Texas Penal Code. The court
observed that the United States Supreme Court had declared Texas
laws criminalizing abortion to be unconstitutional.12 It also recited an
“unambiguous” concurring opinion from the Court of Criminal Appeals
that “[a] mother choosing to abort her unborn child is not a crime under
Texas law.”13 The court of appeals thus concluded that the Afiya Center
had made a prima facie case for defamation because “they have not
committed a crime generally, or murder specifically, while engaging in
any conduct condemned by [Dickson].”14
A justice dissenting from the court of appeals’ denial of en banc
review criticized the panel’s failure to consider the overall context of
Dickson’s statements, which he viewed as plainly demonstrating a
moral and social context to Dickson’s characterizations that reflected his
10 Id. at 418.
11 636 S.W.3d 247 (Tex. App.—Dallas 2021).
12 Id. at 259.
13Id. (quoting State v. Hunter, 624 S.W.3d 589, 589 (Tex. Crim. App.
2021) (Keller, P.J., concurring in denial of review)).
14 Id. at 260.
8
disagreement with the Supreme Court’s decision in Roe v. Wade.15 The
dissenting justice observed that “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.”16
We granted the parties’ competing petitions for review from the
directly conflicting appellate court judgments.
II
“Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that privilege;
and no law shall ever be passed curtailing the liberty of speech or of the
press.”17 These words have been with us in some form since the
Republic’s Constitution.18 Each generation’s struggles and fears,
however, test our society’s commitment to the principle. From the
inception of the First Amendment, which provides that “Congress shall
make no law . . . abridging the freedom of speech,”19 it has been the task
of the courts—and all of government—to reaffirm that society must bear
the speech of everyone, including speech that others find intolerable or
15 650 S.W.3d 513, 513–14 (Tex. App.—Dallas 2021) (Schenck, J.,
dissenting from denial of en banc review).
16 Id. at 513.
17 Tex. Const. art. I, § 8.
18 Repub. Tex. Const. of 1836, Declaration of Rights, cl. 4 (“Every citizen
shall be at liberty to speak, write, or publish his opinions on any subject, being
responsible for the abuse of that privilege. No law shall ever be passed to
curtail the liberty of speech or of the press; and in all prosecutions for libels,
the truth may be given in evidence, and the jury shall have the right to
determine the law and fact, under the direction of the court.”).
19 U.S. Const. amend. I.
9
offensive. In upholding the right to freely speak and protest, courts have
vindicated all sorts of speakers, including abolitionists, antiwar
protesters, civil rights groups, religious minorities, unionizers,
communists, and even groups advocating racial hatred or fascism.20
Wading against currents of public opinion, courts have protected
unpopular and even reprehensible speech. The United States Supreme
Court held a Texas law prohibiting desecration of the flag
unconstitutional despite public sentiment that seemed to
overwhelmingly favor criminalizing flag burning.21 The Court also
20 See David Martin, Trial of the Rev. Jacob Gruber 21–22 (1819),
https://www.loc.gov/resource/rbcmisc.lst0094/ (describing the trial and
ultimate acquittal by a jury of a Maryland pastor indicted for inciting “acts of
mutiny and rebellion” after his delivery of antislavery sermons (emphasis
omitted)); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514
(1969) (affirming students’ rights to protest the Vietnam War at school); Cox v.
Louisiana, 379 U.S. 536, 558 (1965) (reversing convictions of civil rights
protesters); Fowler v. Rhode Island, 345 U.S. 67, 69–70 (1953) (holding
unconstitutional an ordinance that banned Jehovah’s Witnesses from
gathering in a public park but permitted other Christian services); Ex parte
Tucker, 220 S.W. 75, 75–76 (Tex. 1920) (vacating an injunction restraining
union members from “vilifying, abusing, or using opprobrious epithets to or
concerning any party or parties in the employment of plaintiff”); Herndon v.
Lowry, 301 U.S. 242, 263–64 (1937) (granting habeas relief to a member of the
Communist Party of Atlanta convicted of inciting insurrection for possessing
communist literature); Village of Skokie v. Nat’l Socialist Party of Am., 373
N.E.2d 21, 26 (Ill. 1978) (striking an injunction barring the display of a
swastika).
21 Texas v. Johnson, 491 U.S. 397, 420 (1989); see id. at 426 (Rehnquist,
C.J., dissenting) (discussing public sentiment against flag burning); see also
Patricia Lofton, Note, Texas v. Johnson: The Constitutional Protection of Flag
Desecration, 17 Pepp. L. Rev. 757, 783–84 (1990) (summarizing popular and
political responses to the Johnson decision, including a 97–3 vote in the U.S.
Senate registering “profound disappointment” and a national poll revealing
that 71% of Americans supported an amendment to the Constitution to ban
flag burning).
10
granted First Amendment protection to a public protest at a soldier’s
funeral and burial,22 and to grotesque depictions of animal cruelty.23
Our Court similarly has protected speech targeting others. We
have vacated injunctions restraining unionizers who harassed
employees and restraining a dissatisfied customer from accusing a car
dealer of violating the lemon laws.24 In granting habeas relief to a news
dealer arrested for distributing a newspaper banned as a “nuisance
publication,” the Court of Criminal Appeals observed that speech of all
sorts—“political, secular, religious, decent or indecent, obscene or
otherwise”—is constitutionally protected.25
Perhaps no speech more deserves and requires protection from
governmental censure than that critical of the government and its
decisions. Such protection demonstrates our “profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.”26
22 Snyder v. Phelps, 562 U.S. 443, 458 (2011) (concluding that the
protest was a matter of public concern).
23United States v. Stevens, 559 U.S. 460, 482 (2010) (holding a federal
statute criminalizing depictions of animal cruelty unconstitutionally
overbroad).
24 Tucker, 220 S.W. at 75–76; Hajek v. Bill Mowbray Motors, Inc., 647
S.W.2d 253, 254–55 (Tex. 1983) (per curiam) (vacating an injunction
restraining a customer from driving a car painted with words accusing a
dealership of selling a “lemon” vehicle).
25 Ex parte Neill, 22 S.W. 923, 924 (Tex. Crim. App. 1893) (granting
habeas relief to a news dealer selling a newspaper banned by the city of
Seguin).
26 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
11
Open debate is not without its limits. Constitutional protections
give way in the face of certain classes of speech. Statements in which
“the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
individuals” may, for example, constitute “true threats” afforded no
constitutional protection.27 Similarly, statements “directed to inciting or
producing imminent lawless action” may be proscribed without
offending the speaker’s constitutional rights.28
Defamatory statements are a further category of speech that can
fall outside the free speech constitutional guarantee. “[T]here is no
constitutional value in false statements of fact. Neither the intentional
lie nor the careless error materially advances society’s interest in
‘uninhibited, robust, and wide-open’ debate on public issues.”29 States
thus “retain substantial latitude in their efforts to enforce a legal
remedy for defamatory falsehood injurious to the reputation of a private
individual.”30 And the Texas Constitution expressly permits the law to
hold a speaker “responsible for the abuse” of the “liberty to speak, write
or publish his opinions on any subject.”31
Any limitation that defamation law places on free speech,
however, may not muzzle a speaker from asserting an opinion in an
27 Virginia v. Black, 538 U.S. 343, 359 (2003).
28 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
29 Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (quoting
Sullivan, 376 U.S. at 270).
30 Id. at 345–46.
31 Tex. Const. art. I, § 8.
12
ongoing debate about the law. “Under the First Amendment there is no
such thing as a false idea. However pernicious an opinion may seem, we
depend for its correction not on the conscience of judges and juries but
on the competition of other ideas.”32
III
The Texas Citizens Participation Act protects speech on matters
of public concern by authorizing courts to conduct an early and expedited
review of the legal merit of claims that seek to stifle speech through the
imposition of civil liability and damages.33 To invoke the Act, a
defendant must timely move to dismiss a claim and demonstrate that it
“is based on or is in response to” the defendant’s “exercise of the right of
free speech, right to petition, or right of association.”34 The Act defines
the exercise of free speech as “a communication made in connection with
a matter of public concern.”35
Gertz, 418 U.S. at 339–40 (distinguishing between ideas and false
32
statements of fact), quoted in Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989).
33 In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). The Act describes its
purpose as balancing constitutional rights with the rights of people to recover
for legitimate injuries under the law:
The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to the
maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits for
demonstrable injury.
Tex. Civ. Prac. & Rem. Code § 27.002.
34 Id. § 27.003.
35 Id. § 27.001(3).
13
After a defendant demonstrates that a claim falls within the Act’s
ambit, the plaintiff must establish it has “clear and specific evidence” to
support “each essential element” of that claim.36 In this case, the parties
agree that the plaintiffs’ claims are based on Dickson’s exercise of his
free speech rights and that the Act thus applies. With that
understanding, we turn to whether the plaintiffs have adduced a prima
facie case for their defamation claims.
A
To prevail on a claim of defamation, a plaintiff must prove “(1) the
publication of a false statement of fact to a third party, (2) that was
defamatory concerning the plaintiff, (3) with the requisite degree of
fault, and (4) damages, in some cases.”37 This case turns on the first
element. We examine whether Dickson’s statements in the context they
were made are constitutionally protected opinions about the
government’s enactment and interpretation of its laws, or instead are
false statements of fact. Whether an alleged defamatory statement
constitutes an opinion rather than a verifiable falsity is a question of
law.38
We answer this legal question from the perspective of a
reasonable person’s perception of the entirety of the communication, not
from isolated statements.39 Both the United States and Texas
Constitutions protect “‘statements that cannot reasonably be
36 Id. § 27.005(c).
37 Lipsky, 460 S.W.3d at 593.
38 Dall. Morning News v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018).
39 Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002).
14
interpreted as stating actual facts about an individual’ made in debate
over public matters.”40
Accordingly, statements that are verifiably false are not legally
defamatory if the context of those statements discloses that they reflect
an opinion.41 A reasonable person reads communications in their
entirety and is aware of relevant contemporary events.42 In furtherance
of this principle, our Court has held that a judge and district attorney
had no defamation claim based on a satirical article attributing to them
fictitious statements and actions.43 We rejected the imposition of civil
liability in that case because an objectively reasonable reader would not
form “an opinion about the article’s veracity after reading a sentence or
two out of context.”44 We also rejected the effort to use subjective
interpretations of belief based on isolated statements as evidence of
defamation.45
Similarly, in a defamation case in which the plaintiff parents
alleged that a newspaper editorial defamed them by telling readers that
the parents were deceptive in concealing aspects of a family tragedy, we
40 Id. at 580 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20
(1990)).
41 Tatum, 554 S.W.3d at 624.
42 See id. at 639; New Times, Inc. v. Isaacks, 146 S.W.3d 144, 160 (Tex.
2004).
43 New Times, 146 S.W.3d at 147.
44 Id. at 159.
45 Id. at 158–59.
15
rejected the notion that such an implication was defamation.46 The
editorial’s suggestion of deception was not actionable, we held, because
the “column’s context manifestly discloses that any implied accusation
of deception . . . is opinion.”47
In considering the entire communication, a reasonable person is
also cognizant of the speaker’s method and style of dissemination.48 “It
is one thing to be assailed as a corrupt public official by a soapbox orator
and quite another to be labelled corrupt in a research monograph
detailing the causes and cures of corruption in public service.”49 Courts
should consider whether the overall language conveys a personal
viewpoint about the facts. Thus, our Court rejected the parents’
defamation claim against a newspaper based on its editorial because
“[t]he column as a whole, though it includes facts, argues in support of
the opinion that the title conveys.”50
B
Before encountering Dickson’s statements, a reasonable reader is
acquainted with the history of society’s debate about abortion.51 In this
country, a reasonable reader could not be ignorant of the ongoing, highly
46 Tatum, 554 S.W.3d at 639.
47 Id.
48 See Bentley, 94 S.W.3d at 583.
49 Id. (quoting Ollman v. Evans, 750 F.2d 970, 983 (D.C. Cir. 1984) (en
banc)).
50 Tatum, 554 S.W.3d at 639.
See New Times, 146 S.W.3d at 160 (noting that a reasonable person
51
would be aware of the contemporary event that the satirical article referenced).
16
publicized, and fervent debate over many decades regarding the
morality and legality of abortion. The public was actively shaping the
laws surrounding abortion even before the United States Supreme
Court declared some abortions to be constitutionally protected in Roe v.
Wade.52 When the Supreme Court revisited abortion in an attempt to
settle its constitutionality in Planned Parenthood of Southeastern
Pennsylvania v. Casey, a plurality of the Court wrote that “[m]en and
women of good conscience can always disagree, and we suppose some
always shall disagree, about the profound moral and spiritual
implications of terminating a pregnancy, even in its earliest stage.”53
Nonetheless, the plurality asked “the contending sides of a national
controversy to end their national division by accepting a common
mandate” based on the plurality’s assessment of constitutional law.54 As
the Court observed in last year’s Dobbs decision removing constitutional
protections for abortion, however, “Casey did not achieve that goal” of
unifying Americans on the topic.55 “Americans continue to hold
passionate and widely divergent views on abortion, and state
legislatures have acted accordingly.”56
In between these Supreme Court cases, the courts have
entertained regular contests over parental-notification laws, federal
52See Roe, 410 U.S. at 139–40 (discussing efforts beginning in the late
1960s to liberalize abortion laws in many states).
53 505 U.S. at 850.
54 Id. at 867.
55 Dobbs, 142 S. Ct. at 2242.
56 Id.
17
funding for abortions, partial-birth abortions, informed-consent
requirements, regulatory requirements for abortion clinics, and private
civil enforcement.57 The two major political parties have made
statements on abortion part of their party platforms nearly every year
since Roe v. Wade.58 In short, the debate over abortion is a fixture of our
political landscape.
57 See, e.g., Bellotti v. Baird, 443 U.S. 622, 651 (1979) (holding
unconstitutional a Massachusetts statute requiring a minor seeking an
abortion to notify her parents); Harris v. McRae, 448 U.S. 297, 326 (1980)
(concluding that the Hyde Amendment, which denied public funding for
certain abortions, was not unconstitutional); Gonzales v. Carhart, 550 U.S.
124, 168 (2007) (upholding a federal statute restricting partial-birth
abortions); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d
570, 572 (5th Cir. 2012) (vacating an injunction suspending Texas laws
requiring physicians to display sonogram images of the fetus to the mother and
make the fetus’s heartbeat audible before performing an abortion); Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2318 (2016) (holding
unconstitutional a Texas statute requiring abortion providers to be licensed
equivalently as ambulatory surgical centers and have admitting privileges at
a hospital within 30 miles); Whole Woman’s Health v. Jackson, 142 S. Ct. 522,
539 (2021) (rejecting a pre-enforcement challenge to a Texas law providing for
civil enforcement of abortion ban).
58 For example, compare the 1980 Democratic Party Platform (“The
Democratic Party supports the 1973 Supreme Court decision on abortion rights
as the law of the land and opposes any constitutional amendment to restrict or
overturn that decision.”) with the 1980 Republican Party Platform (“While we
recognize differing views on [abortion] among Americans in general—and in
our own Party—we affirm our support of a constitutional amendment to
restore protection of the right to life for unborn children.”), and the 2020
Democratic Party Platform (“We believe unequivocally, like the majority of
Americans, that every woman should be able to access high-quality
reproductive health care services, including safe and legal abortion.”) with the
2020 Republican Party Platform (adopting the 2016 party platform, which
stated: “We support a human life amendment to the Constitution and
legislation to make clear that the Fourteenth Amendment’s protections apply
to children before birth.”). See National Political Party Platforms, The
18
A reasonable person is further aware that the primary argument
espoused against legalized abortion is that abortion is an unjust killing
of human life—that it is, in essence, murder.59 Equally apparent is that
such statements reflect an opinion about morality, society, and the
law.60
Opinions that an unjust killing is tantamount to murder are not
limited to the abortion debate. Opposition to war is often expressed as
an objection to murder.61 Opponents of capital punishment characterize
American Presidency Project, https://www.presidency.ucsb.edu/documents/
presidential-documents-archive-guidebook/party-platforms-and-nominating-
conventions-3.
59Dobbs, 142 S. Ct. at 2240 (“Some believe fervently that a human
person comes into being at conception and that abortion ends an innocent
life.”). The argument that abortion is murder predates Roe v. Wade by at least
a century. E.g., Horatio R. Storer, Contributions to Obstetric Jurisprudence, 3
N. Am. Medico-Chirurgical Rev. 64, 64 (1859), https://archive.org/details/
northamericanmed31859phil/page/64/mode/2up (“By the Common Law and by
many of our State Codes, fœtal life, per se, is almost wholly ignored and its
destruction unpunished; abortion in every case being considered an offence
mainly against the mother, and as such, unless fatal to her, a mere
misdemeanor, or wholly disregarded. By the Moral Law, the wilful killing of a
human being at any stage of its existence is Murder.” (emphasis omitted)).
See Van Duyn v. Smith, 527 N.E.2d 1005, 1007, 1014 (Ill. App. Ct.
60
1988) (rejecting abortion provider’s defamation suit against a protester who
distributed a “Wanted” poster based on the provider’s participation in
“prenatal killings” as not a verifiable defamatory statement of fact, given the
context).
Actor Sean Penn attracted notoriety for accusing a presidential
61
administration of “deceiving the American people into a situation that is
murdering young men and women from this country and others” and calling
for the president and his cabinet to be imprisoned. Real Time with Bill
Maher (HBO television broadcast May 4, 2007), quoted in Robert
Bejesky, Support the Troops: Renewing Angst over Massachusetts v. Laird and
Endowing Service Members with Effectual First and Fifth Amendment Rights,
19
it as “state-sanctioned murder.”62 Vegetarian advocates chant that
“meat is murder.”63 The animal-rights advocacy group People for the
Ethical Treatment of Animals equates wearing fur clothing to murder.64
This historical background of debate on controversial subjects, including
abortion, provides important context to a reasonable reader of the
statements challenged in this case.
An ordinary reader gleans additional context by reading the full
text of Dickson’s Facebook statements and the responses to them.65 As
the statements themselves make clear, Dickson was engaged in a
campaign to pass ordinances similar to the Waskom Ordinance in other
towns. He used his Facebook page and that of Right to Life East Texas
78 Alb. L. Rev. 447, 470 (2015). Antiwar protesters Code Pink charge that
drone strikes against Al-Shabaab militants in Somalia are “murder.” Toby
Blomé, 4th Annual Shut Down Creech: “Stop the Murder, Stop the War
Crimes”, CodePink (Oct. 25, 2018), https://www.codepink.org/
_stop_the_murder_stop_the_war_crimes.
62 E.g., David S. Cohen, State-Sanctioned Murder is Back, Thanks to
SCOTUS, Rolling Stone (July 14, 2020), https://www.rollingstone.com/
culture/culture-news/supreme-court-death-penalty-state-sanctioned-murder-
daniel-lewis-lee-1028702/ (objecting to the Supreme Court’s refusal to
intervene in a federal execution).
63 E.g., Mitchell Byars, Protesters Chanting “Meat is Murder” Ruin
$1,000 Worth of Food at Boulder’s Ideal Market, Police Say, The Denver Post
(Feb. 27, 2017), https://www.denverpost.com/2017/02/27/boulder-ideal-market-
meat-is-murder/; The Smiths, Meat is Murder (Rough Trade Records 1985).
64 E.g., PETA (@peta), Twitter (Nov. 29, 2017, 9:55 AM),
https://twitter.com/peta/status/935899955092512768 (“Fur is murder! PETA
joined hundreds of protesters on #FurFreeFriday in #BeverlyHills to speak up
for animals killed for fur.”).
65 See New Times, 146 S.W.3d at 159 (noting that a reasonable reader
does not form a perception of a piece based on snippets considered out of
context).
20
to inform, persuade, and encourage his supporters. His activities
attracted counter-lobbying efforts from groups that support legalized
abortion.
The challenged statements were a part of this campaign. Some
recite the Waskom Ordinance or reference its effect. Several posts
include links to petitions and advocacy hashtags. Other posts engage
with the plaintiffs’ and others’ responsive speech favoring legalized
abortion. As the responding comments show, the collective impression
is not that Dickson was disseminating facts about particular conduct,
but rather advocacy and opinion responding to that conduct.66 Dickson
invited the reasonable reader to take political action.
The tone and language Dickson employs is exhortatory, not
factual: “If you want to see your city pass an enforceable ordinance
outlawing abortion be sure to sign the online petition”; “Stand strong
leaders of Big Spring. You are going to be on the right side of history”;
“[W]e need to be battling these battles on the home front of our cities.”
Like the first-person editorial characterizing the parents’ description of
a family tragedy as deceptive, the language used clues the reader that
Dickson’s purpose is advocacy, not the dissemination of facts.67
Further, a statement must concern the plaintiff to be
defamatory.68 Dickson’s opinions about the effectiveness of the
66 See Bentley, 94 S.W.3d at 583 (observing that the reasonable reader
is sensitive to the method of dissemination).
67 See Tatum, 554 S.W.3d at 639 (assessing the “first-person, informal
style” of the communication under review).
68 Id. at 623.
21
Ordinance or United States Supreme Court decisions, or about abortion
generally, right or wrong, are not about the plaintiffs. They do, however,
inform the context of the statements that specifically refer to the
plaintiffs.69
In those specific statements, Dickson describes the plaintiffs as
“criminal organizations” in connection with the Waskom Ordinance and
based on the plaintiffs’ support of legalized abortion. In one statement,
Dickson quotes the Ordinance, then paraphrases that “[a]ll
organizations that perform abortions and assist others in obtaining
abortions (including . . . The Afiya Center, The Lilith Fund for
Reproductive Equality [sic] . . . Texas Equal Access Fund, and others
like them) are now declared to be criminal organizations in Waskom,
Texas.” The plaintiffs do not contend that Dickson misrepresented the
contents of the Ordinance. Rather, the Lilith Fund argues that the
Ordinance “was part of the defamation, not merely context for it”
because Dickson assisted in drafting the Ordinance and lobbied for its
passage.
The Lilith Fund cites no authority in support of its argument that
a speaker who republishes the contents of a city ordinance may be held
liable for defamation based on the content of the ordinance. To the
extent that Dickson could be liable, however, we observe that his
recitation of the Ordinance was made in the same context as his other
statements, as part of his overall campaign to advocate for changes to
69 See id. at 624 (requiring statements to be considered in context).
22
abortion laws. His statements about the Ordinance are no different in
context than the other challenged statements.
In another statement, Dickson describes the effect of the
Ordinance as “treat[ing] groups like . . . the Lilith Fund as criminal
organizations.” Dickson’s prediction as to the Ordinance’s legal effect—
however forcefully couched—was pure opinion. Whether the Ordinance
constitutionally or effectively criminalizes particular actions is not
before the Court. Whether Dickson is right or wrong about the
Ordinance’s effectiveness, the statement is not a false statement about
the plaintiffs’ conduct.
In another post responding to the “abortion is freedom” billboards,
Dickson also identifies one of the plaintiffs as listed as a criminal
organization in Waskom:
The Lilith Fund and NARAL Pro-Choice Texas are
advocates for abortion, and since abortion is the murder of
innocent life, this makes these organizations advocates for
the murder of those innocent lives. This is why the Lilith
Fund and NARAL Pro-Choice Texas are listed as criminal
organizations in Waskom, Texas. They exist to help
pregnant Mothers murder their babies.
A reasonable person, equipped with the national, historical, and
temporal context, and informed by the overall exhortative nature of his
posts, could not understand Dickson as conveying false information
about the plaintiffs’ underlying conduct, as opposed to his opinion about
the legality and morality of that conduct. A reasonable person would
understand that Dickson is advancing longstanding arguments against
legalized abortion, in the context of an ongoing campaign to criminalize
abortion, on public-discourse sites regularly used for such advocacy.
23
The plaintiffs argue that opinion based on a false assertion of fact
can be actionable defamation. In other words, they argue that Dickson’s
advocacy declaring them to be “criminal” goes beyond mere opinion. The
plaintiffs rely on Bentley v. Bunton, in which our Court concluded that
a radio host’s repeated insistence that he possessed evidence of a judge’s
corruption was not constitutionally protected.70 The radio host claimed
undisclosed (and nonexistent) court records, public records, and
interviews with courthouse employees supported his accusation. Unlike
the statements made by the radio host in Bentley, however, the plaintiffs
in this case do not assert that Dickson falsely conveyed that they had
engaged in particular conduct when they had not. Instead, Dickson
conveyed his moral judgment of the plaintiffs’ actions: that abortion is
an unjust killing that ought to be criminalized and that plaintiffs are
complicit in advancing such conduct.
Relying on Dickson’s statements to CNN, the plaintiffs further
respond that readers could be misled into believing that those who assist
others in obtaining abortions in Waskom could be held criminally
culpable. Dickson’s statement to CNN does not identify the plaintiffs,
however, and thus is not actionable as to them.71 Moreover, the question
70 94 S.W.3d at 585–86.
71 A statement need not identify a plaintiff by name. See Tatum, 554
S.W.3d at 622 (observing that the opinion column did not refer to the plaintiffs
by name but contained enough details for a person familiar with the plaintiffs
to identify them). However, the defamatory statements must “concern[]” the
plaintiff. E.g., Lipsky, 460 S.W.3d at 593. Dickson’s statements to CNN refer
only to unspecified entities or individuals who violate the Waskom Ordinance.
24
is not whether a statement may mislead any reader, but whether it
would mislead a reasonable reader.72
Notable is what Dickson does not say in his statements. He does
not refer to the Penal Code nor to any Texas criminal law. He does not
falsely claim that the plaintiffs have been arrested or prosecuted, or
otherwise indicate to the reasonable person that the plaintiffs have been
convicted of crimes based on specific conduct. To the contrary, Dickson
invokes a moral premise, calling for his readers to change existing law
to match that moral premise. In one of his comments, Dickson compares
Roe v. Wade to the Supreme Court’s long-repudiated endorsement of
slavery. Dickson’s analogy demonstrates that abortion’s criminalization
is his goal, in contrast to then-existing Supreme Court precedent.
Finally, Dickson argues in this Court that abortion is literally
murder and that the Waskom Ordinance is enforceable in the wake of
Dobbs. The plaintiffs respond that we should take Dickson at his word
and offer the Court’s opinion as to the legal merit of his claims and thus,
according to the plaintiffs, their truth.
We have no reason to doubt Dickson’s sincere beliefs that abortion
is an unjust killing and that the Waskom Ordinance should have the
effect he claims. But the sincerity of one’s belief does not transform an
opinion into a fact. In Bentley, the radio host’s “consistent position at
trial that his accusations of corruption were true [was] a compelling
indication that he himself regarded his statements as factual and not
72New Times, 146 S.W.3d at 157 (“Thus, the question is not whether
some actual readers were [misled], as they inevitably will be, but whether the
hypothetical reasonable reader could be.” (footnote omitted)).
25
mere opinion.”73 We noted, however, that the host relied on nonexistent
records of conduct that had never occurred to inform that belief, making
the statements actionable based on the falsity of the underlying facts.74
A subjective belief, even when sincerely held by a speaker, is not the
standard for determining whether a statement of opinion is
defamatory.75 The touchstone is the reasonable reader’s reception, not
the speaker’s self-serving statements of intent or interpretation.76
* * *
The Texas Citizens Participation Act carries forward the state’s
commitment to the free exchange of ideas enshrined in our Texas and
United States Constitutions. Aware of the chilling effect that
defamation lawsuits have against individuals ill-equipped to finance
protracted litigation, the Legislature has armed speakers with tools to
seek quick dismissal of meritless suits brought to stop public debate.
73 94 S.W.3d at 584.
74 Id. (“Bunton repeatedly insisted that evidence he had seen but had
not disclosed supported his assertions. He had reviewed many public records,
he said, and talked with courthouse employees. Much other information was
publicly available, he continually assured viewers, to substantiate Bentley’s
corruption in office.”).
75See Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 854 (Tex.
2005) (“As we recently noted, the reasonable-reader standard is objective
rather than subjective.”).
76E.g., New Times, 146 S.W.3d at 157–58 (stressing that the test is not
whether some readers may be misled, but whether the hypothetical reasonable
reader could be misled).
26
In dismissing these cases, we express no opinion on the opinions
of others. Instead, we return both sides of the abortion debate to the
battlefield of speech where it belongs. “If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes
of education, the remedy to be applied is more speech, not enforced
silence.”77
Considering the context available to a reasonable reader, we hold
that the plaintiffs failed to adduce specific evidence that Dickson’s
statements were defamatory.78 We therefore affirm the judgment of the
Seventh Court of Appeals. We reverse the judgment of the Fifth Court
of Appeals, and we remand both causes to their respective trial courts
for entry of a judgment of dismissal and further proceedings under the
provisions of the Act.79
Jane N. Bland
Justice
OPINION DELIVERED: February 24, 2023
77Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring).
78Because the plaintiffs’ conspiracy allegations against Right to Life
East Texas depend on the merit of the claims against Dickson, a lack of “clear
and specific evidence” of defamation requires the dismissal of the claims
against both defendants. See Tex. Civ. Prac. & Rem. Code § 27.005(c).
79 See id. § 27.009.
27