Lilith Fund for Reproductive Equity v. Dickson

Docket Number21-0978, No. 21-1039
Decision Date24 February 2023
Citation662 S.W.3d 355
Parties The LILITH FUND FOR REPRODUCTIVE EQUITY, Petitioner, v. Mark Lee DICKSON and Right to Life East Texas, Respondents consolidated for oral argument with Mark Lee Dickson and Right to Life East Texas, Petitioners, v. The Afiya Center and Texas Equal Access Fund, Respondents
CourtTexas Supreme Court

Beth E. Klusmann, Austin, Judd E. Stone II, Warren Kenneth Paxton, Austin, Brent Webster, Houston, for Amicus Curiae State of Texas in 21-0978 and 21-1039.

Jonathan F. Mitchell, Thomas Brejcha, H. Dustin Fillmore III, Fort Worth, Douglas Bryan Hughes, Charles W. Fillmore, Fort Worth, for Respondents in 21-0978.

Elizabeth Gene Myers, Douglas S. Lang, Jennifer Ecklund, Dallas, John Atkins, for Petitioner in 21-0978.

Emily Kebodeaux Cook, for Amici Curiae Texas Values, Houston Young Republicans, Students for Life of America, The Texas Young Republican Federation, Texas Home School Coalition, Republican Party of Texas, Texas Pastor Council, Grassroots America - We the People, True Texas Project, Texas Eagle Forum, Concerned Women of America, The Southern Baptists of Texas Convention, Human Coalition Action in 21-1039.

Douglas S. Lang, Jennifer Ecklund, Dallas, John Atkins, Elizabeth Gene Myers, Dallas, for Respondents in 21-1039.

Martin Whittaker, Douglas Bryan Hughes, Thomas Brejcha, H. Dustin Fillmore III, Charles W. Fillmore, Fort Worth, Jonathan F. Mitchell, for Petitioners in 21-1039.

Kristina West, Fort Worth, Emily Kebodeaux Cook, for Amicus Curiae Texas Right to Life in 21-1039.

Justice Bland delivered the opinion of the Court.

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 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.


The events giving rise to these two lawsuits occurred in the years preceding the United States Supreme Court's decision in Dobbs v. Jackson Women's Health Organization , ––– U.S. ––––, 142 S. Ct. 2228, 213 L.Ed.2d 545 (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, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (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 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 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.


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 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...

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