Supreme Court of Texas Says Calling Abortion Murder Is Protected Speech, Not Defamation

In Lilith Fund for Reproductive Equity v. Dickson, the Supreme Court of Texas held that the United States and Texas Constitutions protect the right to freely criticize abortion and advocacy groups that support abortion rights without being sued for defamation.[1] The court further held that referring to abortion as murder was protected opinion about abortion law made in pursuit of changing that law, even though abortion did not qualify as murder under the Texas Penal Code at the time the statements were made. As such, a prominent critic of abortion was entitled to early dismissal of defamation lawsuits against him. 

The events leading to this lawsuit occurred before the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning constitutional protections for legal abortion in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.[2] In 2019, defendant Mark Lee Dickson, who publicly advocates against legalized abortion and runs Right to Life East Texas, the defendant organization in the consolidated case, successfully lobbied the city council in Waskom, Texas, to pass an ordinance declaring the town a “Sanctuary City for the Unborn” (“Waskom Ordinance” or the “Ordinance”).[3] The Ordinance named plaintiffs Lilith Fund for Reproductive Equity, the Afiya Center, and Texas Equal Access Fund and identified them as “criminal organizations” for their abortion advocacy.[4] Afterward, Dickson posted about the Ordinance several times on the Right to Life East Texas Facebook page, including posts where he cited the Ordinance to refer to plaintiffs as “criminal organizations” that “exist to help pregnant Mothers murder their babies” and “innocent unborn children.”[5]

Plaintiffs filed two separate suits in Dallas County and Travis County against Dickson and Right to Life East Texas, alleging that Dickson’s Facebook posts were legally defamatory because they connected the groups with “literal, criminal murder” at a time when abortion was not murder under Texas law.[6] Plaintiffs alleged that Right to Life East Texas engaged in conspiracy to defame by allowing Dickson to post on its page.[7] Dickson moved to dismiss both suits under the Texas Citizens Participation Act, which mandates early dismissal of any legal action based on a 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.”[8] Dickson raised several arguments, including that when viewed in context, his characterization of plaintiffs as “criminal organizations” that support “murder” was clearly an expression of his view that “abortion is tantamount to murder,” not a false characterization of Texas law.[9]

The cases resulted in a Texas appellate court split: While both the Travis County and Dallas County district courts denied the motions to dismiss, the Seventh Court of Appeals reversed the Travis County court on the grounds that “a reasonable person of ordinary learning would deem [the] accusation about Lilith [Fund for Reproductive Equity] being a criminal entity engaged in criminal acts as opinion,” which the speaker made in seeking “a change in law.”[10] But the Fifth Court of Appeals affirmed the denial of dismissal by the Dallas County court, on the grounds that the statement “abortion is murder” was objectively false under Texas law at the time and therefore Afiya Center had “not committed a crime generally, or murder specifically.”[11] The Texas Supreme Court granted petitions to review the directly conflicting cases.

In a unanimous opinion authored by Justice Jane Bland, the Texas Supreme Court held that Dickson’s comments were protected expression under both the U.S. and Texas Constitutions. The court began by observing that as a general matter, the U.S. and Texas Supreme Courts have both repeatedly protected “unpopular and even reprehensible speech,” ranging from desecration of the American flag to harassment of employees by unionizers.[12] While the court acknowledged that defamatory statements “can fall outside the free speech constitutional guarantee,” defamation law “may not muzzle a speaker from asserting an opinion in an ongoing debate about the law.”[13]

The court then turned to the question of when an alleged defamatory statement constitutes an opinion, which is constitutionally protected and subject to early dismissal by the Texas Citizens Participation Act, versus when it constitutes a “verifiable falsity,” which is not.[14] The court held that under both the U.S. and Texas Constitutions, this question must be answered “from the perspective of a reasonable person’s perception of the entirety of the communication, not from isolated statements.[15] As such, “statements that are verifiably false are not legally defamatory if the context of those statements discloses that they reflect an opinion.”[16] Additionally, courts considering this question should treat a “reasonable person” as “cognizant of the speaker’s method and style of dissemination,” including “whether the overall language conveys a personal viewpoint about the facts.”[17]

The court then applied this reasoning to the facts of Dickson’s statements. First, the court observed that “a reasonable reader could not be ignorant of the ongoing, highly publicized, and fervent debate over many decades regarding the morality and legality of abortion.”[18] The court further observed that a reasonable reader of Dickson’s statements would thus be aware “that the primary argument espoused against legalized abortion is that abortion is an unjust killing of human life—that it is, in essence, murder.”[19] The court noted that equating controversial legal acts to murder is common in our civil discourse: For example, animal activists often say “meat is murder,” and opponents of war or capital punishment often refer to both as acts of murder.[20]

Second, the court held that a reasonable reader would have been aware of the additional context of Dickson’s Facebook statements in their entirety, and responses in the comment section.[21] Those statements made clear that Dickson and the Right to Life East Texas Facebook page were involved in abortion-related advocacy and that Dickson’s statements were not “disseminating facts about particular conduct, but rather advocacy and opinion responding to that conduct.”[22] As such, the “tone and language” used by Dickson in his various statements was “exhortatory, not factual,” which a reasonable reader would perceive.[23]

Third, the court addressed Dickson’s statements referring to plaintiffs as “criminal organizations.” The court noted that in all such statements, Dickson was referring to or accurately quoting the Waskom Ordinance’s language defining plaintiffs as “criminal organizations.”[24] The court expressed skepticism that “a speaker who republishes the contents of a city ordinance may be held liable for defamation based on the content of the ordinance.”[25] Regardless, the court held that Dickson’s statements about the Ordinance, and how the Ordinance may apply to plaintiffs, were “made in the same context as his other statements, as part of his overall campaign to advocate for changes to abortion laws,” and were thus “pure opinion,” “not a false statement about the plaintiffs’ conduct.”[26] Thus, because “Dickson conveyed his moral judgment of the plaintiffs’ actions,” but did not “falsely convey[] that they had engaged in particular conduct when they did not,” his statements were not legally actionable defamation.[27]

Fourth, the court noted “what Dickson does not say in his statements.”[28] Specifically, Dickson did not specifically refer to any Texas criminal law and did not falsely claim plaintiffs had been arrested or prosecuted. “To the contrary, Dickson invokes a moral premise, calling for his readers to change existing law to match that moral premise.”[29]

Finally, the court rejected the argument made by all parties that because Dickson argued “that abortion is literally murder and that the Waskom Ordinance is enforceable in the wake of Dobbs,” the court should take him at his word and base its opinion on whether that statement has legal merit.[30] The court held: “A subjective belief, even when sincerely held by a speaker, is not the standard for determining whether a statement of opinion is defamatory. The touchstone is the reasonable reader’s reception, not the speaker’s self-serving statements of intent or interpretation.”[31] Accordingly, the court held that plaintiffs “failed to adduce specific evidence that Dickson’s statements were defamatory” and that both cases should be dismissed under the Texas Citizens Participation Act.[32]

Justice John Phillip Devine, joined by Justice Jimmy Blacklock, filed a concurring opinion.[33] The justices joined the majority opinion in full, but wrote separately to note that Texas criminal law has always prohibited abortion, even while Roe v. Wade and subsequent Supreme Court opinion made those abortion bans unenforceable. Because those statutes were never removed from the books, they argued, Dickson’s statements that plaintiffs “are criminal organizations under Texas law” were literally true at the time they were made.[34]

 

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