In Lilith Fund for Reproductive Equity v. Dickson, (TX Sup. Ct., Feb. 24, 2023), the Texas Supreme Court in two companion cases ordered trial courts to dismiss defamation actions brought against Mark Lee Dickson and Right to Life East Texas. At issue were statements Dickson made on his own and on Right to Life's Facebook pages describing plaintiffs, two pro-choice organizations, as "criminal organizations" and saying that the organizations "exist to help pregnant Mothers murder their babies." The postings were part of a campaign to convince other Texas cities to enact anti-abortion ordinances similar to one enacted in 2019 by Waskom, Texas. The court, concluding that defendants' postings were expressions of opinion rather than fact, and that the suits should be dismissed under the Texas Citizens Participation Act, said in part:
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.
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....
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....
A subjective belief, even when sincerely held by a speaker, is not the standard for determining whether a statement of opinion is defamatory. The touchstone is the reasonable reader’s reception, not the speaker’s self-serving statements of intent or interpretation.
Justice Devine, joined by Justice Blacklock, filed a concurring opinion saying in part:
I join in full the Court’s well-reasoned and thorough opinion. But it is regrettable that it took the courts of our State so long to dismiss the Funds’ obviously meritless lawsuits that were filed to silence their political adversaries. Defamation law must never become a weapon of intimidation against opponents, no matter the party or the side of a political issue.
The Texas Supreme Court has links to the briefs and oral arguments in the case. Jonathan Turley discusses the decision.
