The Texas Supreme Court has handed down a major ruling in defense of free speech this week. The decision Lilith Fund for Reproductive Equity v. Dickson by Justice Jane Bland rejected an effort by pro-choose groups to use defamation lawsuits against pro-life advocates. What was particularly chilling is that one appellate court agreed with the absurd argument that characterizing abortion as murder is an actionable basis for defamation as opposed to protected opinion.
The underlying cases stem from an intense political fight over an ordinance passed by the city council in Waskom, Texas. Mark Lee Dickson and Right to Life East Texas lobbied to pass the ordinance stating that abortion is “an act of murder with malice aforethought.” It conditionally criminalized aiding or abetting most abortions if the United States Supreme Court later overruled Roe v. Wade. (It did so in the Dobbs decision in 2022). The Ordinance initially listed the plaintiffs in these suits, among others, as “criminal organizations” that “perform abortions and assist others in obtaining abortions.”
One would expect the groups (Lilith Fund for Reproductive Equity, the Afiya Center, and Texas Equal Access Fund) to sue the city, but instead it sued Dickson and Right to Life East Texas for their use of terms from the ordinance.
After the passage, Dickson posted a series of condemnations of these groups on social media, quoting the ordinance, referring to the groups as “criminal organizations.” CNN also reported 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.”
The plaintiffs proceeded to write to Dickson and Right to Life East Texas to demand the retraction of Dickson’s labeling plaintiffs as “criminal organizations” and 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.”
A week later, after Dickson failed to yield, the Afiya Center sued Dickson and Right to Life East Texas in Dallas County. The same day, the Lilith Fund filed the same suit against Dickson and Right to Life East Texas in Travis County.
Dickson and Right to Life East Texas moved to dismiss both suits under the Texas Citizens Participation Act, which states that 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.”
Dickson argued that he was quoting from the Ordinance and that 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.” He also noted that the plaintiffs are limited-purpose public figures under the higher burden of New York Times v. Sullivan. The Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.
The Travis County district court rejected the motion to dismiss, but the Seventh Court of Appeals correctly reversed by holding that “a reasonable person of ordinary learning would deem [the] accusation about Lilith being a criminal entity engaged in criminal acts as opinion.”
That was not the case with the Dallas County case. If the groups split the litigation in the hopes of securing a more favorable court, it succeeded.
The Dallas County district court denied Dickson’s motion and the Fifth Court of Appeals affirmed. The court of appeals decision, in my view, is wildly off-base with existing free speech doctrines and cases. Justice Bill Pederson III wrote for the court and adopted an highly blinkered analysis. Pederson noted that the United States Supreme Court had declared Texas laws criminalizing abortion to be unconstitutional. Thus, the court of appeals concluded that there was a prima facie case for defamation because “they have not committed a crime generally, or murder specifically, while engaging in any conduct condemned by [Dickson].”
It is an approach that would gut much of the First Amendment. Pro-life advocates believe that abortion is murder and have a right to state so. It is clearly political and religious expression protected by the Constitution. Just as Democrats have accused former President Trump of “mass murder” due to his action on the pandemic or on January 6th, such overheated rhetoric is common in political discourse. Likewise, liberals often call the Republican Party a “criminal organization.”
Amazingly, the appellate court upheld this highly flawed opinion. The only redeeming moment for the Fifth Court of Appeals was found in the dissent of Justice David J. Schenck, who sought to convey the obvious on the implications of the court’s sweeping interpretation. Schenck noted “to suggest that the statement that ‘abortion is murder’ is protected as a statement of opinion or rhetoric but that it is a “crime” is not protected strains comprehension.”
These cases eventually made it to the Texas Supreme Court that made fast work of the Fifth Court of Appeals decisions. Justice Bland wrote:
“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 decision is a major win for free speech, but it should not have been necessary for the Texas Supreme Court to have to render such an opinion. It is unnerving that Justice Pederson and his colleagues would allow the weaponization of defamation law to curtail the free speech rights of these pro-life advocates. That is precisely the danger that the Supreme Court sought to avoid in adopting the higher standard in New York Times v. Sullivan. It sought to give free speech breathing room and to defend our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Moreover, as Justice William Douglas said in his concurrence “since the adoption of the Fourteenth Amendment a State has no more power than the Federal Government to use a civil libel law or any other law to impose damages for merely discussing public affairs and criticizing public officials.”