Appellate courts in Texas have seen an influx of defamation, business disparagement, and other similar actions since 2011 when the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011 (2015), was signed into law. The TCPA is an anti-SLAPP statute; SLAPP is an acronym for Strategic Lawsuits Against Public Participation, which is a lawsuit brought with the intent to silence those who exercise their First Amendment rights to speak out on public issues or communicate with the government by intimidating or harassing the critic with the burden and expense of defending a lawsuit. Thus, the TCPA provides for an expedited dismissal (and interlocutory appeal from a trial court’s denial of a motion to dismiss) of a legal action that is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association. The TCPA’s provisions are powerful and broadly interpreted, and plaintiffs have struggled to hold on to their claims when faced with a section 27.003 motion to dismiss.
Shortly before the new year, the Dallas Court of Appeals issued two opinions concerning defamation and the TCPA involving the same set of tragic underlying facts. Shortly after sustaining a traumatic brain injury from a car accident, Paul Tatum took his own life. After the death of their son, the Tatums, appellants in both cases, paid the Dallas Morning News (“DMN”) to print an obituary for Paul. About a month later, DMN reporter, Steve Blow, wrote a column that did not name the Tatums, but quoted from Paul’s obituary, described the events surrounding his death, and criticized people who are dishonest about loved ones’ suicides.
In Tatum v. Dallas Morning News, the Fifth Court of Appeals reversed summary judgment in favor of DMN and Blow on the Tatums’ libel claim. The Court concluded that the Tatums raised a genuine issue of material fact regarding: (1) whether Blow’s column was about their family; (2) whether the column was capable of defaming the Tatums; and (3) whether the column was neither true nor substantially true. Read the opinion here for a detailed explanation of defamation law on these issues.
In the second case, Tatum v. Hersh, the Tatums sued Julie Hersh for intentional infliction of emotional distress. Hersh, author of a book about her personal history with depression and attempted suicide, allegedly met with Blow of the DMN, “promoted Paul’s death and the Obituary . . . as a news story,” “incited Blow to write about suicides in obituaries,” and “encouraged [Blow] to make the Tatum tragedy public.” Blow’s article quotes Hersh and references both her book and a blog article that she allegedly wrote after reading Paul’s obituary and learning of his suicide. Hersh filed a motion to dismiss, pursuant to the TCPA, and the trial court granted it. The Dallas Court of Appeals reversed the trial court’s order granting dismissal, concluding that Hersh failed to establish that the TCPA applied to the Tatums claims because Hersh denied having made the specific statements at issue. In so holding, the Court relied on one of its earlier TCPA opinions, Pickens v. Cordia.
Appellees in both of the above cases have been granted an extension of time to file a petition for review with the Supreme Court.