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.”
Wow. Pederson. What is going on at Baylor law?
WARNING:
Q’Anon Sh!t Below
Here is what the Blog St**ge wrote, February 27 at 8:13 pm, using ‘Anonymous’ as his handle:
It is amusing to see trolls cite polls, knowing the Left pushes pronouns, Trans, gender dysphoria, grooming of children with gay drag shows, castrating little boys, mastectomies for little girls, and ramming down the throats of parents black queer courses within AP black history Courses, not to mention CRT BLM agenda, knowing Americans reject all of these.
Ask the troll how many children he has had with his wife! None. He is a gay groomer
bwahahahahahaahahahaha
…………………………………………………..
The Blog St**ge, Estovir, is having a tantrum. Because a very recent poll was posted showing almost two-thirds of all Americans want to keep abortion legal.
News like this triggers ‘good, Christian conservatives’. They transform into Q’Anon zombies and start throwing feces around. Phrases like “grooming”, “castrating little boys” and “black queer courses” are suddenly acceptable debating points.
These are the people Johnathan Turley panders to. They are, in fact, a reflection of JohnathanTurley. Not that Turley really subscribes to Q’Anon. He’s too smart for that! But as an employee of Fox News, Turley must feed the monster.
These are the people Johnathan Turley panders to. They are, in fact, a reflection of JohnathanTurley. Not that Turley really subscribes to Q’Anon. He’s too smart for that! But as an employee of Fox News, Turley must feed the monster.
As is normal here. Leftists trolls are forced to attack our host. Just more evidence they have zero intellectual content to share.
Ad hominem attacks are their only tool.
crystal meth, crack or cocaine. hard to know what he uses but he obviously is a sick puppy.
Anyone is free to attack Turley.
Anyone is free to spew idiocy.
That is what free speech means.
The freedom to say stupid things.
As Brandeis – a prominent liberal supreme court justice noted over a century ago.
The remedy for bad speech is more speech.
How is it that you can jump from an abortion poll to support for the rest of the left wing agenda ?
Few in this country fall into the absolutes on abortion. The vast majority want abortion to be legal limited and rare.
The do not support absolute bans. Nor do they support late term abortions.
But there is no meaningful connection between centrist views on abortion and support for the nonsense going on in our schools.
In fact there is no strong correlation between supporting equal rights for gay and trans, and support for: indoctrinating kids on gender,
giving minors drugs or surgery. There is not even strong support for these on the left.
As to CRT – that is trivial. If you teach children that one race is inferior – that is racism. It does not matter which race you designate as inferior.
And there is no difference between class marxism, and gender or racial marxism.
We should absolutely teach students about marxism in school – that it is the most bloody murderous and destructive ideology that humans have ever conceived of.
I have not seen evidence that Turley “panders” to any group.
Turley is an actual civil libertarian. His primary – and possibly sole offense against those on the left is that he holds the universally liberal view that freedom of speech should be near absolute. He shares that view with even the most radical on the left in the past.
Those on the left – like you have changed – Turley has not.
In the past civil libertarians like Turley defended the rights of professors and students on the left to speak views that were not accepted.
Today those being censored and supressed are the voices on the right.
Turley has not changed.
YOU have.
You started your post by referencing Qanon. But aside from using the term as a means of casting generalized disparagement on those who disagree with you, you never made your meaning clear.
What has Qanon got to do with he rest of your arguments ?
Long before there was a Qanon people were divided on abortion.
You seem to think that opposition to teaching CRT in grade school, or or opposing advocating for gender dysphoria as well as surgical and chemical intervention at young ages are somehow tied to Qanon.
If that is your claim – all you are doing in mainstreaming Qanon.
Polls purporting to show support for legalized abortion have nothing to do with the topic of this article, which is free speech. Simplistic numbers like those quoted below also do not capture important nuances: first trimester only, or throughout all nine months pregnancy – which Roe permitted and which has minuscule support? Should abortion be the exclusive province of the federal courts, or is it a topic for the democratic process?
The fundamental error of Roe, as even pro-choice legal scholars have admitted, was to arrogate virtually the entire subject to the domain of the federal courts, which is far from what was intended by the framers of the Bill of Rights and the Fourteenth Amendment. It was naked power grab by the Supreme Court. In Dobbs the Court has now given it back to the people saying, “Sorry for stealing this, returning it to you is long overdue.”
Old Man (Estovir) That comprehensive polls show what the anti-abortion movement can’t accept: ‘Almost 2/3 of America wants legal choice’. The Taliban Federalists probably know that. But with Dobbs they just said, ‘We’re going to rule as we please regardless of how the country feels’.
: ‘Almost 2/3 of America wants legal choice’
When did public opinion voodoo, replace Representative governance?
I explained to you last week that pools are comissioned by people that are creating, crafting, pushing a specific Narrative. You just proved it.
iowan2 – the anonymous commenter seems to know absolutely nothing about what the role of a judge is or what the Dobbs decision actually said.
New, Comprehensive Poll:
64% Say Abortion Should Be Legal
WASHINGTON (February 23, 2023) — Support for abortion rights continues to increase among the American public, according to a new survey of more than 22,000 adults conducted by Public Religion Research Institute (PRRI) as part of its American Values Atlas project, which contains findings for all 50 states and the District of Columbia. Just under two-thirds of Americans (64%) say abortion should be legal in most or all cases, up from 55% in 2010. Meanwhile, just over a third of Americans (34%) say it should be illegal in most or all cases, down from 42% in 2010. The proportion of Americans who say abortion should be illegal in all cases also dropped by more than half — from 15% in 2010 to 7% in December 2022.
“Support for abortion has been increasing gradually for years, and this updated 50-state data makes it clear that current abortion policy in many states is considerably out of step with the opinions of a majority of Americans — across states, political party affiliations, and even most religious groups,” says Melissa Deckman, Ph.D., CEO of PRRI. “The overturn of Roe v. Wade has been galvanizing, particularly for Democrats and for younger Americans, who tend to be less religious. As abortion bans move from theoretical to reality, this will be a key issue for voters heading into the 2024 election.”
Just a third of Americans (34%) favored overturning Roe in 2022, with a plurality (44%) strongly opposed. In no state did a majority of respondents express support for the overturn of Roe. The proportion of Americans strongly opposed to the overturning of Roe increased after the June decision in Dobbs v. Jackson Women’s Health Organization from nearly 4 in 10 (39%) in March to 46% in December. While the ruling did not appear to change Americans’ abortion legality views broadly, it did appear to impact levels of support for sweeping abortion bans.
https://www.prri.org/press-release/new-50-state-survey-support-for-abortion-rights-rising-in-all-states/
REGARDING ABOVE:
The PRRI research shows that support for legal abortion is nationwide with only a few, small states opposed. From the report:
Majorities of residents in 43 states and the District of Columbia say that abortion should be legal in most or all cases, and in 13 of those states and in DC, more than seven in ten residents support legal abortion. There are only seven states in which less than half of residents say abortion should be legal in most or all cases: South Dakota (42%), Utah (42%), Arkansas (43%), Oklahoma (45%), Idaho (49%), Mississippi (49%), and Tennessee (49%). Residents of nearly all states have become more likely to say abortion should be legal in most or all cases since PRRI’s last state-level data analysis, in 2018.
So what? They should move to a state that allows it as they wish or lobby legislators in their state to change laws against it. That’s what Dobbs allowed.
The “poll” isnt a poll. It a wish list sponsored by the Public Religion Research Institute, PRRI, bankrolled by the Brookings Institute and the left wing Atlantic online news site. It is garbage talking points by leftist elites. No surprise
America soon will have the same policies that Europeans have on abortion, which is not what the leftists want….but of course. Americans are clear: majority want limitations to abortions, just like most of the world
“According to Gallup’s May 2022 update on Americans’ abortion views, 35% of U.S. adults believe abortion should be legal “under any circumstances,” 50% say it should be legal “only under certain circumstances” and 13% say it should be illegal in all circumstances.”
https://news.gallup.com/poll/321143/americans-stand-abortion.aspx
REGARDING ABOVE:
POLLS SCHMOLS
_______________
“the people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
_________________
“The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”
– Alexander Hamilton, The Farmer Refuted, 1775
_______________________________________
“[We gave you] a [restricted-vote] republic, if you can keep it.”
– Ben Franklin
___________
You couldn’t, comradette!
New, Comprehensive Poll:
64% Say Abortion Should Be Legal
You should be at the top of the world. What great news for you. With such an overwhelming advantage, State legislatures will be passing the laws 64% of the people want.
Great point iowan2. Anonymous is crying crocodile tears.
Also referred to as “disruption” dismemberment could be brought about by chaining four horses to the condemned’s arms and legs, thus making them pull him apart, as was the case with the executions of François Ravaillac in 1610, Michał Piekarski in 1620 and Robert-François Damiens in 1757. Pulling apart a fetus is no different. Maybe man hasn’t become so civilized after all.
“Pulling apart a fetus is no different.”
Unless, of course, one recognizes the difference between an actual and a potential.
Right. The fetus is not a horse. It is human.
ABORTION IS MURDER
Are legislators and judges intelligent and capable of critical thinking and discrimination?
Litigators are immoral, contending both sides against each other solely for the sake of argument, not probity and justice.
Do cognitive people need to go this deep to grasp that killing an extremely young human being is literally illegal homicide?
Age does not cause illegal homicide to become legal.
Locus does not cause illegal homicide to become legal – in the case of abortion, inside the womb.
Inconvenience to parents does not cause homicide to become legal.
Human life begins after fertilization.
Fertilization is complete in 24 hours.
The only effectively legal homicide is suicide; there is no living perpetrator.
George, when someone is shot in the head it’s over quickly but when a child is pulled apart in the womb it amounts to torture before death. This torture is allowed even up to the moment of birth. The pro-abortion people don’t want us to see the gory details.
Then there’s that!
The pro choice advocates never want you to see the details. Some would call it murder. I hope that you will consider viewing the following link and decide for yourself. https://www.abortionprocedures.com/. This is information that the abortionists don’t want you too see. They also don’t want pregnant women to see a sonogram before a decision to abort a child is made. Why?
“Pro-life advocates believe that abortion is murder and have a right to state so.”
They BELIEVE abortion is murder. It’s not merely an opinion it’s a belief that it is. The belief is serious enough that they passed a law saying explicitly that it’s murder. Calling pro-choice groups criminal organizations based on what the law says means exactly what they believe they are. Criminal organizations. It’s not mere opinion. To pro-life organizations it’s a statement of fact.
Right wing judges are giving these groups cover by splitting hairs over the nuances over expressing opinions and beliefs. Turley inadvertently pointed out why calling it opinion is flawed. They really believe it’s murder. It’s not just a rhetorical opinion.
Is English your native language?
‘a repetitive description as the left is now in full control of the party’
It is, but I’m going to continue to use it, gently and with context, mind, until people like some in my circle who listen exclusively to NPR or YouTube, and don’t read, and make less than six figures a year, and still believe modern elitist dems and globalists like WEH or CDC are their best buddies either snap out of it or get tired of me. 👍🏼
*WEF* – hasty typo, sorry.
There is no mystery in sex and conception. Hard cases should be separable with a human rights bias. Six weeks to baby… fetal-baby meets granny in legal state.
I agree with the Texas Supreme Court’s decision; however, I would add this to the analysis. It seems to me that “abortion” is a “protected” topic in defamation law. In nearly any other context, accusing a person or identifiable organization of “murder” clearly is defamatory per se. In these two cases, however, the fact that Dickson’s comment concerned abortion, turned his otherwise clearly defamatory accusation into a mere opinion. In other words, if Dickson had said falsely “in my opinion, members of Afiya Center murdered the convenience store clerk,” a defamation action clearly would have been upheld; however, accusing Afiya Center of murdering an unborn child is a protected opinion because of the “national, historical, and temporal context” in which Dickson made the statement. Also, in the context of a very late-term or post-birth abortion, as advocated by many in the pro-choice community, the defense of “opinion” may quickly give way to the defense of “truth” to defeat a defamation action.
Honest, your example is not on point. As the Texas Supreme Court said, there is no dispute here as to the facts about the underlying conduct of abortion. The only dispute is as to the legal or moral character of that conduct. On the other hand, your example of the murder of the convenience store clerk would involve a dispute about the underlying facts: no convenience store clerk in fact died as a result of anyone’s conduct or otherwise.
Post birth abortion? No such thing. You cannot “abort” a living baby. If the baby wasn’t born alive then it’s a stillbirth.
This article gives a good example of the creeping intrusion into 1st Amendment rights that has been instituted by the Democrat left (a repetitive description as the left is now in full control of the party). This element has already infiltrated the legal process. I am old enough to observe that the decision of the lower court would have been unheard of twenty or even ten years ago. The media are not anxious to discuss this development as they are supportive of watered down freedom of speech as long as they are happy with the result. What to do? We need to provide unyielding advocacy for the media and communications that reflect our position. I believe there is still a large enough untapped reserve of voters who need to know they are not alone in the wilderness of woke-ism and the left wing story lines that are fed to them daily. There are still more of us then there are of them.
Progressive clowns are biased, that is well established. Laugh at the stupidity, even if the progressive clown is a pathetic “judge”. Do not treat these clowns with any deference or respect , they have not earned it.
To the Left, the words of the Constitution metamorphose into a completely different document when the subject is abortion. Free speech is gone and abortion rights are its central purpose. It is as if we have two constitutions, one for abortion and one for everything else.
@oldman
That is spot on. Funnily, I’ve always been on the side of pro-choice (still am in the first trimester; though I liothe it and have seen the real world repercussions) before full-term babies entered the equation. I don’t know how anyone involved with such acts that isn’t a legit socio/psycho can even look themselves in the mirror at such a notion.
Young people see their lives in terms of weeks, maybe even months well into their late 20s, and they have no idea what they are doing to their middle aged selves when broader personal understanding shines a light, and it will, no matter how small the leap (again, barring legitimate brain disorders).
This ruling is fair. Don’t like someone’s statements? Ignore them, as they likely have to ignore yours practically 24/7. Too fragile for that? Seek help to find out why you can’t live as a basic, functional adult.
“It is as if we have two constitutions, one for abortion and one for everything else.”
That is a perfect misunderstanding of the nature of “rights.” Rights pertain to an individual, not more (a group) or less (a potential).
I’m not surprised that the Travis County district court denied dismissal since Travis Co. is so “progressive. What surprises me was that a district court and Appeals Curt in Dallas did not immediately dismiss the case also. I guess “progressive” is like a cancer and spreads until it poisons and kills the body politic. At least the present form of “progressive” does. Once “progressive” was a meaningful political movement promoting liberal democracy and enlightenment and rights to all. Now it is just the sheep’s clothing around the Marxist wolf.
GEB,
Well said. The problem also is that dark money organizations are bankrolling liberal candidates (products of liberal universities)who then go on to make irrational and irresponsible decisions.
I guess “progressive” is like a cancer and spreads until it poisons and kills the body politic.
And like a cancer, it first attacks the soft tissues (humanities and social science). Given enough time, it can even get into hard tissues like bone (math and biology), as it now has in the West. The cancer is “woke” ideology – which, as you say, is a form of marxism. In the West today it is primarily cultural marxism.
Great metaphor, GEB!
Its hard to argue taking of human life without cause is murder. It has not yet been codified. I wish that is the direction we would have take. But the left successfully branded abortion as a health care issue. Ignoring the health of 50% of the affected.
As is usual, the shocking revelation of leftists judges ruling to get their preferred outcome, while ignoring the written law.
The Left, Pro Choice and etc. will try to stretch the truth and the law to crazy ideas with the hope they get the right court to agree with them, even in Texas. Its the Lawerence Tribe School of Law, Tribe is a radical left wing legal scholar from Harvard with some very crazy ideas that the Left follow. The Texas Supreme Court is the Check against such crazy ideas.