I have yet to write on SCOTX’s Lilith Fund opinion. But Robert Francis O’Rourke, Appellant v. Kelcy Warren, Appellee, No. 03-22-00416-CV, 2023 WL 3914278 (Tex. App.—Austin June 9, 2023, no pet. h.) is hot off the electronic presses, becoming the first COA opinion to cite Lilith Fund to defend against defamation claims. The trial court gets reversed for failing to dismiss Warren’s defamation claims against Beto, because in context, they were “just, like, your opinion, man.” *
Whether an alleged defamatory statement constitutes an opinion rather than a verifiable falsity is a question of law.38 We answer this legal question from the perspective of a reasonable person’s perception of the entirety of the communication, not from isolated statements.39 Both the United States and Texas Constitutions protect “ ‘statements that cannot reasonably be interpreted as stating actual facts about an individual’ made in debate over public matters.”40 Accordingly, statements that are verifiably false are not legally defamatory if the context of those statements discloses that they reflect an opinion.
Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023)
“This is a very complicated case, . . . You know, a lotta ins, a lotta outs, lotta what-have-yous,” so I’ll let my three readers dive into the facts. But the Austin COA pointed out that (1) many of Beto’s statements were not even about Warren; and (2) in context, a reasonable person would view them as they type of sharp opinions you see in the political context (and bowling):
In this context, considering O’Rourke’s statements as a whole “from the perspective of a reasonable person’s perception,” Lilith Fund, 662 S.W.3d at 363, his statements about the governor—which include references to Warren—are the type of non-defamatory opinions a reasonable person would expect during the course of a contentious, statewide political campaign. . . . All of the statements in question were made during a political campaign—many of them at campaign rallies—and clue the reader that O’Rourke’s purpose “is advocacy, not the dissemination of facts.” Lilith Fund, 662 S.W.3d at 367. Many of the communications do use “vehement, caustic, and sometimes unpleasantly sharp attacks” that often arise in political debates. Isaacks, 146 S.W.3d at 154 (quoting Sullivan, 376 U.S. at 270). But reasonable readers would understand that claims about a political opponent being corrupt24 or being beholden to campaign contributors or special interests25 are just the type of “rhetorical hyperbole” that is commonplace and expected during contentious political campaigns. See Backes v. Misko, 486 S.W.3d 7, 26 (Tex. App.—Dallas 2015, pet. denied) (explaining that “rhetorical hyperbole” is “extravagant exaggeration [that is] employed for rhetorical effect” and is not actionable as basis for defamation (quoting American Broad. Cos. v. Gill, 6 S.W.3d 19, 30 (Tex. App.—San Antonio 1999, pet. denied))); see also Bentley v. Bunton, 94 S.W.3d 561, 578 (Tex. 2002) (“The Constitution protects ‘statements that cannot reasonably [be] interpreted as stating actual facts about an individual’ made in debate over public matters in order to ‘provide[ ] assurance that public debate will not suffer from lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.’ ” (quotation marks omitted) (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990))). Given the political and temporal context, a reasonable person could not understand O’Rourke as conveying verifiable facts about the legality of Warren’s political donation. See Farias v. Garza, 426 S.W.3d 808, 818 (Tex. App.—San Antonio 2014, pet. denied) (“Accusations of the use of political influence to gain some benefit from government are not defamatory and do not constitute libel per se.”), disapproved of on other grounds by In re Lipsky, 460 S.W.3d 579.26 Rather, they would understand that the gist of O’Rourke’s statements—even when using sharp language such as “corrupt” and “like a bribe”27—as reiterating his political advocacy that he would be a better governor, couched in the oft-repeated argument that one’s political opponent is beholden to their campaign contributors. See In re Lipsky, 460 S.W.3d at 594 (analyzing “gist” of collective statements to determine meaning); see also Stephen Gardbaum, Due Process of Lawmaking Revisited, 21 U. Pa. J. Const. L. 1, 12 (2018) (explaining that campaign-finance system “has been characterized as ‘legalized bribery’ ”); Zephyr Teachout, Opinion, Legalized Bribery, N.Y. Times (Jan. 26, 2015), https://www.nytimes.com/2015/01/26/opinion/zephyr-teachout-on-sheldon-silver-corruption-and-new-york-politics.html (“But legal campaign contributions can be as bad as bribes in creating obligations. The corruption that hides in plain sight is the real threat to our democracy.”).
Beto, 2023 WL 3914278, at *10.
Tracking Lilith Fund, the Austin COA noted many of the distinctions advanced by SCOTX in rejecting the defamation allegations in that underlying case:
The Supreme Court’s decision in Lilith Fund reinforces that O’Rourke’s statements, even when using objectionable language, were opinions that could not be considered defamatory. In Lilith Fund, the Supreme Court concluded that advocacy groups could not state a prima facie case for defamation against a pro-life campaigner who identified the groups as “criminal organizations” and said the groups “exist to help pregnant Mothers murder their babies” and “murder innocent unborn children.” See id. at 359. The Supreme Court held that a reasonable person, informed about the historical context of the political issue, would understand the campaigner as using language of advocacy to express his opinion on the “legality and morality of that conduct,” rather than disseminating false factual information about the advocacy groups. Id. at 368. In distinguishing its prior holding in Bentley, the Lilith Fund court emphasized that Bentley was distinguishable because the radio host relied on “undisclosed (and nonexistent)” records “that never occurred to inform” his belief that his corruption accusations were true, “making the statements actionable based on the falsity of the underlying facts.” Lilith Fund, 662 S.W.3d at 368–69. The Lilith Fund court also explained that the campaigner “does not refer to the Penal Code nor to any Texas criminal law”; did not indicate that the advocacy groups had been arrested, prosecuted, or convicted of crimes based on specific conduct; and invoked “a moral premise” to advocate for his beliefs on a political issue. Id. at 368.
Beto, 2023 WL 3914278, at *11
I suspect that Lilith Fund’s application will make it harder to advance “defamation per se” cases past Texas Anti-Slapp motions. But that is for another day. Till then, “ . . . Let’s go bowling.”
Interesting side note, Warren filed against Beto in San Saba County which does not cover El Paso or Dallas (if you are wondering). https://en.wikipedia.org/wiki/San_Saba_County,_Texas
* Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023)