Defamation lawsuits often make headlines in the news, which probably contributes to their place in the popular imagination. But in Texas, defamation lawsuits face significant challenges that make them particularly difficult to pursue successfully.
The First Hurdle – The Texas Citizens Participation Act (TCPA)
A TPCA motion is the first hurdle that any defamation lawsuit will have to face, and any good lawyer planning on filing a defamation suit should have a plan for how to defeat this motion, which should be the first thing filed by any lawyer defending against a Defamation suit. The TCPA, often referred to as Texas’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, was enacted to protect individuals from retaliatory lawsuits that aim to silence their exercise of First Amendment rights. The Act provides a mechanism for early dismissal of suits that are based on or are in response to a party's exercise of the right to free speech, the right to petition, or the right of association, or arise from acts in furtherance of certain protected communications.
Under the TCPA, a defendant can dismiss a lawsuit if the plaintiff cannot establish a “prima facie case” by "clear and specific evidence" for each essential element of the claim in question. Given the often emotional nature of defamation claims and the high burden of proving them, this actually happens rather frequently.
Two notable important things to keep in mind with regard to the TCPA:
First, if a suit is dismissed under the TCPA, the court is required to award reasonable attorney fees against the plaintiff. This provision aims to deter frivolous suits, and is (or should be) a deterrent to Defamation plaintiffs. Second, a TCPA motion must be filed within 60 days of the service of the lawsuit, so make sure you get a good attorney on the front-end if you’ve been served with a defamation lawsuit.
The Second Hurdle – Proving the Elements of Defamation
A plaintiff must prove the following elements to establish a claim for defamation:
- The defendant published a statement;
- The statement was defamatory concerning the plaintiff;
- The statement was false;
- The defendant acted either negligently (if the plaintiff is a private individual) or with actual malice (if the plaintiff is a public figure or public official); and
- Damages (unless the defamation is considered defamatory per se, where damages are presumed).
If any of these elements is lacking, a defamation claim fails. Each of these claims has case law on it, so make sure you have a good Defamation attorney if you want to sue or have been sued for Defamation.
The Final Hurdle – Constitutional Protections
Finally, defamation suits in Texas, like all lawsuits, must follow the Constitution, in particular the First Amendment. The U.S. Supreme Court has already limited Defamation’s reach in its ruling in New York Times Co. v. Sullivan when it established that public officials must prove actual malice, defined as knowledge that the statement was false or with reckless disregard of whether it was false or not, to succeed in defamation actions. This standard has not been held to apply to private citizens, but make sure you have an attorney well versed in constitutional law if you want to sue or get sued for defamation, given its intersection with a core protected constitutional rights.
Conclusion
The combination of early TCPA dismissal with attorneys fees (and possible sanctions), stringent requirements for proving defamation, and strong constitutional safeguards for free speech make pursuing defamation lawsuits in Texas a challenging endeavor. These factors have contributed to what some might view as the "death" of defamation lawsuits in the state. Make sure you have a good Defamation attorney if you are sued or would like to sue for Defamation.
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