INTERLOCUTORY APPEAL OF AN ORDER DENYING AN MSJ THAT INVOLVES FREE SPEECH OR PRESS GROUNDS ENCOMPASSES THE ENTIRE ORDER

Dallas Symphony Association, Inc. v. Reyes
Supreme Court of Texas, No. 17-0835 (March 8, 2019)
Opinion by Chief Justice Hecht (linked here)

Ken Carroll

Jose Reyes was “a low-level customer-call-center employee of Bank of America [who] participated in [Dallas Symphony] Orchestra events as a volunteer and small donor for some ten years.” But he “acquired a reputation for crashing [DSO] events uninvited, photobombing, and speaking to the media purportedly on the Orchestra’s behalf but without authorization.” The DSO terminated Reyes as a volunteer and informed the Orchestra’s contact at the Bank about that. Reyes responded with an aggressive email from his Bank computer, purporting to express the Bank’s displeasure. The DSO forwarded that email to the Bank, which then terminated Reyes’s employment for a variety of reasons. When the DSO issued a brief “media advisory” about Reyes’s termination as a volunteer, D Magazine investigated and published an article about the entire saga, branding Reyes a “social butterfly” who “misrepresented his role with charities.”

Reyes sued D Magazine and the DSO for, among other things, defamation, tortious interference, and conspiracy. Both defendants moved for summary judgment, partly on the basis that some of the statements at issue were constitutionally protected, and partly on other, nonconstitutional grounds. When the trial court granted the motions in part and denied them in part, the magazine and the DSO appealed under § 51.014(a)(6) of the Civil Practice & Remedies Code, which provides for interlocutory appeal when a trial court “denies a motion for summary judgment that is based in whole or in part” on a defense grounded in the First Amendment’s free speech and free press guarantees. The Dallas Court of Appeals, however, concluded it lacked jurisdiction to review the trial court’s denial of the DSO’s motion regarding tortious interference, saying interlocutory review under § 51.014(a)(6) “is limited to the denial of summary judgment on claims or defenses implicating rights of free speech or free press”—an issue on which intermediate courts of appeals had disagreed.

The Supreme Court reversed, holding that whenever an appeal is triggered under § 51.014(a)(6), the statute’s plain language extends review to the entire order denying summary judgment and not just to those portions of the order addressing constitutional claims or defenses. The Court discounted earlier characterizations of the interlocutory-appeal statute as a “narrow exception” to general rules of appealability, an exception that must be “strictly construed.” “Characterizations of textual interpretations as ‘strict,’ liberal,’ ‘narrow,’ ‘broad,’ and the like,” the Court said, “are not helpful when, as is usually the case, the real goal is simply a ‘fair’ reading of the language.” Carefully parsing that language here—and particularly the statute’s authorization of an appeal from an order that denied a motion “based in whole or in part” on constitutional guarantees—the Court held that § 51.014(a)(6) allowed the DSO to appeal from the entire order denying its motion, on all grounds. The Court therefore proceeded to review the trial court’s denial of the DSO’s motion for summary judgment on tortious interference, a review that involved no constitutional defenses. It reversed that denial and remanded for the trial court to render judgment for the DSO.