Last month we gave you an overview of the Texas anti-SLAPP law, called the Texas Citizens Participation Act (TCPA) regarding defamation lawsuits. In that post we told you how useful the TCPA was to persons hit with abusive defamation lawsuits and the like, and that the Texas courts to date had given a fairly broad interpretation of the law in favor of persons bringing a TCPA motion to dismiss. At the end of April, however, the Texas Supreme Court made it a bit more difficult to obtain the dismissal of a SLAPP defamation lawsuit under the TCPA. The court did so by clarifying that circumstantial evidence may be introduced by the party defending a TCPA motion to dismiss in order to show by clear and specific evidence a prima facie case for each element of the claim.

The matter before the Texas Supreme Court was In re Steven Lipsky, a relatively well-known case involving alleged well-water contamination by Range Resources Corporation and Range Production Company (Range), which engaged in hydraulic fracturing adjacent to Mr. Lipsky’s property. Lipsky conducted a public battle against Range, at one point purporting to show that he could light his well-water on fire. Range ultimately filed claims of business disparagement and defamation against Lipsky and his wife, and this is the case that ended up in front of the Texas Supreme Court.

Lipsky was easily able to meet his first TCPA hurdle and show by a preponderance of the evidence that the case involved his first amendment rights and involved a matter of public concern. So the motion to dismiss turned on whether Range could establish by clear and specific evidence a prima facie case for each essential element of its business disparagement and defamation claims. In order to do so, Range introduced evidence that was circumstantial, i.e., required inferences to be made to reach a conclusion, as opposed to direct evidence, which would require no such inferences.

Lipsky argued that only direct and not circumstantial evidence should be considered by the court in rendering judgment on whether Range had met its TCPA burden of proof. Range, on the other hand, argued that circumstantial evidence and rational inferences may be considered by the court in determining whether clear and specific evidence exists. Prior to this case, the Texas appellate courts had been split on this issue, which to a non-lawyer may seem technical, but is actually very important. The Texas Supreme Court accepted the case of In Re Lipsky to resolve this dispute among the lower courts.

In a unanimous decision, the Texas Supreme Court ruled that circumstantial evidence could be considered by the court if it met the standard of clear and specific evidence. In this particular case, Range’s ability to introduce circumstantial evidence was the difference between Lipsky’s motion to dismiss regarding the defamation claim being granted, which it was not, or denied, which it was. And this will likely be the turning point in many future anti-SLAPP motions to dismiss as well.

In fact, there is one other such case in front of the Texas Supreme Court right now, and no doubt this particular issue in that case has already been decided. However, KBMT Operating Company LLC et al v. Minda Lao Toledo involved another important issue affecting certain anti-SLAPP motions to dismiss; and that issue remains to be decided. In that case, Toledo filed a defamation claim against KBMT, the owner of a local television station which reported, based on public government statements and documents, that she was a pediatrician who had sexual relations with one of her patients. While this technically may have been true, the full reality was that she had sexual relations with her adult boyfriend who she also provided with medication in an unprofessional manner.

In addition to the circumstantial evidence issue, KBMT v. Toledo involves the fair report privilege, which under the Texas Civil Practice and Remedies Code, provides that publications are privileged (e.g., cannot be subject to defamation claims) as long as they constitute a fair, true, and impartial account of a judicial proceeding or other official proceedings to administer the law. This case turns on whether such a fair, true and impartial account was given by the television station, and possibly on whether a publisher of fair report material has to do any additional research to ensure their account is such.

Finally, at the same time the Texas Supreme Court handed down its In re Steven Lipsky decision, it also delivered an opinion on another anti-SLAPP defamation lawsuit regarding yet another issue. In Lippincott v. Wishenhut, the court ruled that first amendment communications covered by the TCPA do not have to take place in a public forum. They only need to involve a matter of public concern. So communications made in private that involve a public concern can give rise to a TCPA motion to dismiss.

The Texas Supreme Court seems clearly intent on clarifying the TCPA, and realizes its growing importance with respect to defamation, libel, business disparagement and other such claims in Texas. If you are involved in a case like this, it’s important that your attorney realizes this importance and is up-to-speed on the latest developments as well. Kilgore & Kilgore has experienced commercial litigation attorneys ready to evaluate your situation. Call us today at (214) 969-9099 or email dem@kilgorelaw.com to set up a free review of the facts of your case with a Dallas attorney.