Mark Lee Dickson and Right to Life East Texas v. the Afiya Center and Texas Equal Access Fund ( 2021 )

DISSENT and Opinion Filed October 25, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00988-CV
MARK LEE DICKSON AND RIGHT TO LIFE EAST TEXAS, Appellants
V.
THE AFIYA CENTER AND TEXAS EQUAL ACCESS FUND, Appellees
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-08104
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
–2–
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 penalize2 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
1
Justice Blackmun’s majority opinion in Roe appeared to concede that no one—not even the United
States Supreme Court (or presumably a jury)—could answer the question of when life begins as a matter
of fact. “When those trained in the respective disciplines of medicine, philosophy, and theology are unable
to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a
position to speculate as to the answer.” 410 U.S. 113, 159 (1973).
2
The plaintiffs’ petition in this case seeks “punitive damages in an amount of more than $300,000[].”
Pet. at 20. The jury will presumably be instructed that it “may in its discretion award [an amount] as a
penalty or by way of punishment.” See TEX. PATTERN JURY CHARGE 115.38.
3
As noted, the Roe majority declined to answer the question of when life begins, preferring to rest its
holding on the weighing of the right to privacy it recognized against the state’s compelling interest in the
potential for life, with state power preserved after “viability.” 410 U.S. at 165–66. Whether that factual
and legal analysis is correct has been a matter of sharp public debate since.
–3–
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
4
The complained of statements are as follows:
(1) Dickson’s drafting and advocating for the passage of the original ordinance, which banned
appellees from operating within city limits and declared them to be “criminal organizations.”
(2) Dickson’s posting of the following statement on Facebook on July 2, 2019.
“Abortion is Freedom” in the same way that a wife killing her husband would be freedom—
Abortion is Murder. 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.
(3) RLET’s posting of a similar statement from Dickson on Facebook that reads as follows:
As I have said before, abortion is freedom in the same way that a wife killing her husband
is freedom. Abortion is murder. The thought that you can end the life of another innocent
human being and not expect to struggle afterwards is a lie. In closing, despite what these
groups may think, what happened in Waskom was not a publicity stunt. The Lilith Fund
was in error when they said on a July 2nd Facebook post, “Abortion is still legal in
Waskom, every city in Texas, and in all 50 states.” We said what we meant, and we meant
what we said. Abortion is illegal in Waskom, Texas. In the coming weeks more cities in
Texas will be taking the same steps that the City of Waskom took to outlaw abortion in
their cities and become sanctuary cities for the unborn. If NARAL Pro-Choice Texas and
the Lilith Fund want to spend more money on billboards in those cities we welcome them
to do so. After all, the more money they spend on billboards the less money they can spend
on funding the murder of innocent unborn children.
(4) Dickson’s posting of the following statement on Facebook on November 26, 2019:
Nothing is unconstitutional about this ordinance. Even the listing of abortion providers as
examples of criminal organizations is not unconstitutional. We can legally do that. This is
an ordinance that says murdering unborn children is outlawed, so it makes sense to name
examples of organizations that are involved in murdering unborn children. That is what we
are talking about here: The murder of unborn children. Also, when you point out how the
abortion restrictions in 2013 cost the State of Texas over a million dollars, you should also
point out how many baby murdering facilities closed because of those restrictions. We went
from over 40 baby murdering facilities in the State of Texas to less than 20 baby murdering
facilities in the State of Texas in just a few years. Even with the win for abortion advocates
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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.”).
with Whole Woman’s Health v. Hellerstedt, how many baby murdering facilities have
opened back up? Not very many at all. So thank you for reminding us all that when we
stand against the murder of innocent children, we really do save a lot of lives.
(5) Dickson’s posting of the following statement on Facebook on June 11, 2019, shortly after Waskom
adopted the sanctuary-cities ordinance, and RLET’s re-posting of this statement on Facebook:
Congratulations Waskom, Texas for becoming the first city in Texas to become a
“Sanctuary City for the Unborn” by resolution and the first city in the Nation to become a
“Sanctuary City for the Unborn” by ordinance. Although I did have my disagreements with
the final version, the fact remains that abortion is now OUTLAWED in Waskom, Texas! .
. . . All organizations that perform abortions and assist others in obtaining abortions
(including Planned Parenthood and any of its affiliates, Jane’s Due Process, The Afiya
Center, The Lilith Fund for Reproductive Equality, NARAL Pro-Choice Texas, National
Latina Institute for Reproductive Health, Whole Woman's Heath and Woman’s Health
Alliance, Texas Equal Access Fund, and others like them) are now declared to be criminal
organizations in Waskom, Texas. This is history in the making and a great victory for life!
(6) Mr. Dickson’s utterance of the following statement during an interview with CNN:
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.
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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.
I. 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 law5
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
5
The legislature has codified this law in Chapter 73 of the Civil Practice & Remedies Code.
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address it primarily in relation to my broader concern that a contrary reading would
implicate the First Amendment.
A. 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).
6
Rhetorical hyperbole is extravagant exaggeration that is employed for rhetorical effect. A person of
ordinary intelligence would perceive appellants’ words as nothing more than rhetorical hyperbole. To the
extent appellants’ comments express their views that abortion should be considered murder, that is their
opinion on the morality and legality of abortion. Under the entire context of the conversation being had,
appellants’ accusations are rhetorical hyperbole or opinions on a hotly debated topic of public concern and
is protected speech under the Constitution.
–7–
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.
1. 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
matters7 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
7
Examples abound. Recently, Press Secretary Jen Psaki accused South Carolina Governor Henry
McMaster of “literally killing people” by not welcoming the federal government sending its workers or
volunteers door-to-door to engage its citizens relative to the COVID-19 vaccine. An Oklahoma school
board member said kids could “commit murder” by not wearing masks in school. Would listeners
understand these statements in their context as part of a public debate, albeit a heated one? See also Nat’l
Rifle Ass’n v. Dayton Newspapers, Inc., 555 F. Supp. 1299 (S.D. Ohio 1983) (statement that National Rifle
Association “happily encourages . . . murders and robberies” was protected opinion).
8
https://www.youtube.com/watch?v=3l263xKfLV8
–8–
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
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to the contrary insufficiently considers the chilling effect such litigation (or threats
of it) would have on protected political speech.9
2. 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 debate10 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.
9
I take judicial notice that the internet provides a national and indeed international medium for the
dissemination of political rhetoric. Venue in defamation cases can arise as readily in Massachusetts as in
Alabama, and the expense of defending a tort claim in remote forums may be enormous. Internet Sols. v.
Marshall, 39 So. 3d 1201 (Fla. 2010). The notion that juries (and judges) in these states might deploy their
laws to punish and suppress locally unpopular political views is hardly fanciful, and precisely why the
federal Constitution (as well as those of the states) protects the debate from the cudgel of litigation and the
attendant threat and expense it entails. While the Supreme Court has recognized these concerns are real,
they are not embodied in due process, personal jurisdiction protection. Instead, “the potential chill on
protected First Amendment activity stemming from libel and defamation actions is [supposed to be] already
taken into account in the constitutional limitations on the substantive law governing such suits.” Calder v.
Jones, 465 U.S. 783, 791 (1984). I believe that consideration operates in both directions, and that state libel
and defamation standards should strive to avoid constitutional conflict. Cf. City of Fort Worth v. Rylie, 602
S.W.3d 459 (Tex. 2020). Whether the law here is developed by courts or by statutes, we should read it with
an eye toward the Constitution and our role under it.
10
Of course, critics charge the recognition of an extra-textual right to privacy in Griswold v.
Connecticut, 381 U.S. 479 (1965), (and Roe’s application of it) as having the same effect of politicizing
judicial review. Roe, 410 U.S. at 152 (“The Constitution does not explicitly mention any right of privacy”);
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., dissenting). As state judges
have no say in that debate, I merely note it here and suggest that further digging is what people in holes
should not do.
–10–
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
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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
11
Would a juror believing life begins at birth be empowered to award actual and punitive damages on
the basis of that understanding? And, regardless of how a jury arrives at a favorable verdict, how would it
be perceived by those wishing to express a view on this hotly debated topic other than as a judicial threat?
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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.
B. 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
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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.
II. 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
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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
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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
12
“[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an
independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute
a forbidden intrusion on the field of free expression.’” Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 499 (1984) (quoting Sullivan, 376 U.S. at 284–85).
–16–
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.
13
If the prospect of shifting litigation costs in failed litigation are nevertheless sufficient to chill future
potential meritorious litigation, the actual expense of defending meritless litigation is just as likely to chill
future protected speech. The TCPA, of course, recognizes this serious concern and provides a direct remedy
in the form of fee recoupment.
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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
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