SILENCE ≠ FREE SPEECH UNDER TCPA

Krasnicki v. Tactical Entertainment, LLC
Dallas Court of Appeals, No. 05-18-00463-CV (May 17, 2019)
Justices Bridges, Partida-Kipness (opinion available here), and Carlyle

Kelli Hinson

Silence is not speech and is not protected under the TCPA. Tactical Entertainment entered into an agreement with Krasnicki to develop a smart-phone game application called “The Art of Combat.” A big factor in Tactical’s selection of Krasnicki was his approach of using two different servers to perform two different functions: one to handle all account data, and another to relay in-game activity in real time. At some point in the process, however, Krasnicki abandoned the two-server architecture and developed the project to use only one server. Tactical alleges Krasnicki never communicated this “massive” deviation from the original concept, thus fraudulently inducing Tactical to continue with the project.

Krasnicki filed a motion to dismiss Tactical’s lawsuit under the Texas Citizens Participation Act (TCPA), alleging that Tactical’s claims against him were based on or related to his exercise of free speech. The trial court disagreed, and so did the Dallas Court of Appeals. The TCPA provides a procedure for expeditiously dismissing a non-meritorious legal action that is based on, relates to, or is in response to the party’s exercise of the right of free speech. “Free speech” is defined as a communication made in connection with a matter of public concern, and “communication” is defined as the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic. Here, Tactical’s claims focused on Krasnicki’s silence—or failure to disclose—rather than affirmative statements. The Court held that “communications” could not be interpreted to include “non-communication,” and so the TCPA did not apply.