Defamation refers to the making of false public statements against a person or company that causes injuries. The general elements of a Texas defamation claim are: 1) the publication of a false statement of fact to a third party, 2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and 4) damages, in some cases. In re Lipsky, 460 S.W.3d 579, 593, (Tex. 2015); WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). The status of the person allegedly defamed determines the requisite degree of fault. A private individual need only prove negligence, whereas a public figure or official must prove actual malice. WFAA–TV, Inc., 978 S.W.2d at 571. “Actual malice” in this context means that the statement was made with knowledge of its falsity or with reckless disregard for its truth. Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 420 (Tex.2000). The plaintiff must plead and prove damages, unless the defamatory statements are defamatory per se. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 162 (Tex.2014).
A defense frequently raised in defamation cases is The Texas Citizens Participation Act (“TCPA”), Texas’ anti-SLAPP statute. TEX. CIV. PRAC. & REM. CODE § 27.003(a). “SLAPP” stands for “Strategic Lawsuit Against Public Participation,” and anti-SLAPP statutes have been enacted in many states, including Texas, to address frivolous lawsuits brought against defendants who properly exercise their First Amendment rights. In re Lipsky, 411 S.W.3d 530, 536 n.1, 539 (Tex. App.—Fort Worth 2013, no pet.). The Texas legislature enacted the TCPA in 2013 in order to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. The statute “protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). The Texas Supreme Court has explained that “matters of public concern” are “[p]ublic matters [that] include ‘a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)(citing Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011)). The TPCA directs courts to liberally interpret the provisions of the Act in order to fully effectuate its purpose which is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file a meritorious lawsuit for demonstrable injury. Schmidt v. Crawford, 584 S.W.3d 640, 647 (Tex. Civ. App. – Houston [1st Dist.] 2019, no pet). Under the TCPA, a defendant moving for dismissal need show only that the plaintiff’s legal action is based upon, relates to, or is in response to the defendant’s exercise of the right of free speech. That is to say that a communication, supposedly if made, was made in connection with a matter of public concern – not that the communication actually occurred. Hersh v. Tatum, 526, S.W.3d 462, (Tex. 2017). The pertinent portion of the TCPA defines “exercise of right of free speech” as a communication made in connection with a matter of public concern. Specific mention of the public concern within the statement is not required; all that is required is a tangential relation to a matter of public concern. Exxon Mobil Pipeline Company v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017). The TCPA sets forth a special expedited procedure. A defendant who believes the lawsuit was filed in response to a valid exercise of First Amendment rights may file a motion to dismiss, and the court must conduct a hearing on the motion “not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing ... [but] in no event shall the hearing occur more than 90 days after service of the motion,” with certain exceptions. In re Lipsky, 411 S.W.3d at 539; Nguyen v. Hoang, 318 F. Supp3d 983, 998 (S.D. Tex. 2018)(citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.004. The court must then rule on the motion no later than thirty days after the hearing. Id. (citing § 27.005). The court “shall dismiss a legal action against the moving party if the moving party shows 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005. “The ‘right of free speech’ refers to communications related to ‘a matter of public concern’ which is defined to include an issue related to: ‘(A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace.’ ” In re Lipsky, 460 S.W.3d at 586 n.4. “
Statue of Limitations. The statute of limitations for defamation claims under Texas law is one year. Tu Nguyen v. Duy Tu Hoang, 318 F. Supp. 3d 983, 1011 (S.D. Tex. 2018). A claim for defamation begins to run on the “first date of publication.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 742 (5th Cir. 2019).
© 2020 Mark Courtois