TCPA DID NOT BAR CLAIMS FOR INVASION OF PRIVACY, DEFAMATION, AND HARMFUL ACCESS BY COMPUTER

Pickens v. Cordia
Dallas Court of Appeals, No. 05-13-00780-CV (May 22, 2014)
Justices FitzGerald, Francis (Opinion), and Myers
T. Boone Pickens and three of his children brought suit against Pickens’s son, Michael, alleging defamation and invasion of privacy based on statements Michael published in a blog. One sister added a claim for harmful access by computer, because of a disparaging email Michael allegedly sent to her employer under a pseudonym. Michael responded with a motion to dismiss, relying on the Texas Citizens Participation Act (“TCPA”), which provides an expedited procedure for obtaining dismissal of actions involving the exercise of certain constitutional rights, including free speech. The Dallas Court of Appeals concluded Michael had not shown himself entitled to the protections of the TCPA, and remanded for further proceedings.

Michael O. Pickens is the son of T. Boone Pickens. He is, according to the Court, a “recovering drug addict” who writes a blog about his addiction and recovery experience. Michael’s blog includes a section called “My Story,” in which he has related personal stories about his upbringing and his family, often portraying them in very unflattering ways. T. Boone and his other children took offense and filed suit against Michael, “alleging he had invaded their privacy and exposed them to ridicule, humiliation, and extreme embarrassment by posting false statements about them on his blog.” Michael’s sister, Pamela, added a claim for harmful access by computer, see TEX. CIV. PRAC. & REM CODE § 143.001, based on Michael’s allegedly having sent a disparaging email about her to her employer and to the California Securities Commission, making it appear the email had come from a third party. Michael moved to dismiss all those claims on the basis of the TCPA, TEX. CIV. PRAC. & REM CODE § 27.001–.011. The trial court granted the motion to dismiss Pamela’s email-based claim, but denied the remainder of Michael’s motion. Both Michael and Pamela pursued interlocutory appeals.

On a motion to dismiss under the TCPA, the movant bears the initial burden to show by a preponderance of the evidence that the action “is based on, relates to, or is in response to the party’s exercise” of free speech. The Act defines an “exercise of free speech” as a “communication made in connection with a matter of public concern,” which in turn means an issue related to (1) health and safety, (2) community well-being, and (3) a public figure. The Court of Appeals decided Michael’s motion foundered on all 3 prongs.

While the Court acknowledged that drug abuse and parental abuse relate to “health and safety” and “community well-being” in a general sense, it found the specifics of Michael’s blog insufficient to trigger the protections of the TCPA. It noted that the blog merely recounted his personal experiences, rather than addressing the issues from societal perspective, and held that it could not “conclude that statements of private life, such as those recounted in Michael’s blog, implicate the broader health and safety concerns or community well-being concerns contemplated by chapter 27,” i.e., issues the resolution of which would affect “people other than the immediate participants in the controversy.”

Michael’s attempts to show his family were “public figures” fared no better. There was no serious question about his siblings. But even as to his more famous father, Michael failed to hit the mark. The Court explained that “public figures” fall into two categories, “general-purpose” and “limited-purpose.” After reviewing all the evidence, the Court concluded T. Boone Pickens is not a “general-purpose public figure.” It did find him to be a “limited-purpose public figure” in the realm of issues related to the energy industry. But the allegations in this case do not concern the energy industry, and so T. Boone Pickens is not a “public figure” under the TCPA for purposes of this case.

Finally, the Court reversed the trial court’s dismissal of Pamela’s claim for harmful access by computer. Michael denied having sent the “imposter” email. So, the Court noted, he could not claim the protections of the TCPA while simultaneously denying he was exercising his free speech rights. There was therefore no basis for dismissal of Pamela’s claim at this point in the case.
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