Lippincott v. Whisenhunt
Supreme Court of Texas, No. 13-0926 (April 24, 2015)
Per Curiam Opinion
In re Lipsky
Supreme Court of Texas, No. 13-0928 (April 24, 2015)
Opinion by Justice Devine
Texas’s anti-SLAPP statute, the Texas Citizens Participation Act (“TCPA”), provides for dismissal of a cause of action based on the defendant’s “exercise of the right of free speech,” which the Act defines as “a communication made in connection with a matter of public concern.” If the defendant demonstrates that a claim falls within the scope of the TCPA, the plaintiff may avert dismissal if he or she “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” In two cases decided last Friday, the Supreme Court resolved splits among the courts of appeals by clarifying both what a defendant needs to show to invoke the TCPA and the nature of the evidence on which a plaintiff may rely to prevent dismissal.
Seizing on the articulated purpose of the TCPA—“to safeguard and encourage the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government”—the Texarkana court of appeals had held that the Act’s protections do not extend to private communications, but attach only to “communications that are public in form,” such as might constitute “participat[ing] in government.” The Fort Worth Court of Appeals rejected that interpretation last month in Bilbrey v. Williams. The Supreme Court has now done so, as well, holding that while a communication must address “a matter of public concern” to be covered, “the plain language of the statute imposes no requirement that the form of the communication be public.”
Turning to the burden facing a plaintiff who seeks to rescue a claim from TCPA dismissal, several courts of appeals had focused on the requirement for “direct and specific” evidence to hold that the plaintiff cannot rely on circumstantial evidence or inference to support his or her claim. But the Supreme Court rejected that position. The Court acknowledged that neither the Act nor case law defines the phrase “direct and specific” evidence. But the Court nevertheless held that “the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence,” and—noting that circumstantial evidence can suffice to support a verdict and judgment—certainly “does not impose a higher burden of proof than that required of the plaintiff at trial.”
