Greer v. Abraham
| Decision Date | 15 April 2016 |
| Docket Number | No. 14–0669,14–0669 |
| Citation | 489 S.W.3d 440 |
| Parties | Daniel Greer and Fix the Facts Foundation d/b/a AgendaWise, Petitioners, v. Salem Abraham, Respondent |
| Court | Texas Supreme Court |
Brandan Montminy, Joseph M. Nixon, N. Terry Adams Jr., Beirne, Maynard & Parsons, L.L.P., Houston, James Edwin Trainor III, Beirne, Maynard & Parsons, L.L.P., Austin, for Petitioners
Courtney D'lynn Miller, John H. Lovell, Lovell, Lovell, Newsom & Isern, L.L.P., John T. Smithee, Templeton, Smithee, Hayes, Heinrich & Russell LLP, Amarillo, for Respondent Salem Abraham
delivered the opinion of the Court.
The TCPA requires the dismissal of legal actions that impinge on First Amendment rights unless “the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id . § 27.005(c). The trial court dismissed the public official's underlying action under the TCPA, concluding that the official had not met his burden as to the actual-malice element. The court of appeals reversed and remanded, concluding that actual malice was not an element of the public official's defamation claim because the publication did not mention or relate to his official conduct or his fitness for office. 474 S.W.3d 731, 736 (Tex.App.—Amarillo 2014)
(mem.op.). Because we conclude actual malice was an element of the public official's defamation claim, we reverse and remand to the court of appeals for it to consider other issues raised by the official, but not addressed by the court.
The public official and plaintiff in this case is Salem Abraham. He was elected to the Canadian Independent School District Board of Trustees in 2001 and remained in that office for more than a decade. In 2012, Abraham was supporting his friend and fellow Canadian ISD board member, Ken King, in King's campaign for state representative. King's opponent in that race, Jim Landtroop, portrayed King as fiscally irresponsible during the campaign. A Landtroop campaign mailer stated King had increased spending and raised taxes while on the Canadian school board.
Abraham, who served as the school board's vice-president during King's service, and as its president before that, believed this was untrue. Moreover, he viewed Landtroop's campaign mailer targeting Canadian ISD's spending and taxes as false criticisms of not only King, but also of himself, the other school board members, and the school district itself. Learning that a future Landtroop campaign event was to take place in Levelland, Texas, Abraham decided to attend. The Landtroop campaign billed the event as a public meeting.
Levelland is about 200 miles from Canadian. On the day of the event, Abraham and another school-district trustee traveled to Levelland, where they listened to remarks from the candidate and also from the governor. Following these remarks, the moderator asked if there were any questions for the candidate, and Abraham was recognized for a question. After hearing the nature of Abraham's question, however, the moderator decided to move on, stating that the question was not appropriate for the event.
The meeting was subsequently adjourned, and a Landtroop campaign worker approached Abraham, asking him to leave. After briefly discussing the matter, Abraham proceeded to leave, but not before handing out printed materials stating the facts, as he knew them, about Canadian ISD taxes. These materials challenged statements in Landtroop's campaign mailer that were critical of King—statements that Abraham also viewed as false criticism of his school district and fellow school-board members.
Shortly after the public meeting, AgendaWise, a politically oriented internet blog, reported on Abraham's attendance at Landtroop's campaign event in Levelland. The internet article identified Abraham as the campaign treasurer of Landtroop's opponent and a significant financial contributor to the opposition. The article ended with a statement about Abraham's departure from the event that Abraham found offensive. The blog reported: “Abraham had to be forcefully removed from a Landtroop campaign event this week by Governor Perry's DPS detail.”
Abraham contacted AgendaWise and its executive director, Daniel Greer, to complain that they had misrepresented his being “forcefully removed” from the meeting. In response, Greer and AgendaWise published the following correction to the article:
Abraham complained again, objecting this time to the use of the word “heckling” to describe his conduct. Greer and AgendaWise again corrected the article, deleting the first two sentences regarding Abraham's exit from the meeting and amending its previous correction to read:
Correction: On Wednesday August 1, Mr. Abraham contacted AgendaWise claiming he was not forcefully removed by DPS agents, as an earlier version of this story claimed. According to Mr. Abraham, he was asked to leave by campaign personnel, voluntarily cooperated, and DPS wasn't involved. The portion about Mr. Abraham's exit has been omitted.
AgendaWise also sent two letters of apology to Abraham over the error.
A few days later, Abraham sued AgendaWise and Greer for libel. The defendants1 (hereafter collectively referred to as Greer) answered and moved to dismiss pursuant to the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.001
–.011. The TCPA provides an expedited procedure for the early dismissal of groundless legal actions that impinge on First Amendment rights. Id .
§ 27.003. The Act imposes the initial burden on the movant, in this case Greer, to establish by a preponderance of the evidence “that the legal action is based on, relates to, or is in response to the party's exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.” Id . § 27.005(b). The Act then shifts the burden to the nonmovant, in this case Abraham, stating that the court may not dismiss “if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id . § 27.005(c).
Abraham does not dispute that his pleadings implicated the TCPA or that his burden under the Act was to establish a prima facie case for each element of his defamation claim. He also did not dispute, at least in the trial court, that he was a public official. For a public-official plaintiff, an essential element of the defamation claim is that the defendant published the alleged falsehood with “actual malice.” See Bentley v. Bunton, 94 S.W.3d 561, 590 (Tex.2002)
(citing New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ). Actual malice in this context does not mean bad motive or ill will but rather knowledge of, or reckless disregard for, the falsity of a statement. Id . at 590–91. Recognizing this potential burden, Abraham asked the trial court for limited discovery to gather evidence as to Greer's state of mind at the time of publication.
The request was necessary because the filing of a TCPA motion to dismiss typically suspends all discovery in the underlying legal action until the court rules on the motion. Tex. Civ. Prac. & Rem. Code § 27.003(c)
. When good cause exists, however, the Act allows limited discovery relevant to the motion. Id . § 27.006(b). In this case, the court granted Abraham's request for limited discovery, but Greer responded by asserting the journalist's privilege and declining to reveal his sources. See id . § 22.023(a) ().
In addition to limiting discovery, the TCPA also expedites the process by requiring the trial court to rule on a motion to dismiss within thirty days of the motion's hearing. Id . § 27.005(a).2 The trial court granted Greer's motion to dismiss near the end of this period. About the same time, Abraham challenged Greer's status as a journalist and filed a motion to compel him to answer discovery. See id . § 22.024 (). Although the court did not rule on the motion to compel, it did file findings of fact and conclusions of law at Abraham's request.
In its findings, the court classified Abraham as a public official and the defendants as print media. It also concluded that the statements published by the defendants about Abraham were false and libelous but that Abraham could not establish malice by clear and specific evidence because of the defendants' assertion of the journalist's privilege. Finally, the court concluded Abraham did not bring the legal action “to deter or prevent Defendants from exercising constitutional rights, nor for an improper purpose, nor to harass, delay, or to increase the cost of litigation.” See id . § 27.007(a) ().3
Abraham appealed, complaining that actual malice was not an element of his claim...
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