Mark Lee Dickson and Right to Life East Texas v. the Lilith Fund for Reproductive Equity ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00005-CV
MARK LEE DICKSON AND RIGHT TO LIFE EAST TEXAS, APPELLANTS
V.
LILITH FUND FOR REPRODUCTIVE EQUITY, APPELLEE
On Appeal from the 53rd District Court
Travis County, Texas
Trial Court No. D-1-GN-20-003113, Honorable Amy Clark Meachum, Presiding
September 2, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
“Abortion is Freedom,” so said Lilith. “‘Abortion is Freedom’ in the same way that
a wife killing her husband would be freedom – Abortion is Murder,” so said Dickson. “Roe
v. Wade, 410 U.S. 113 (1973) . . . and any other rulings or opinions from the Supreme
Court that purport to establish or enforce a ‘constitutional right’ to abort a pre-born child,
are declared to be unconstitutional usurpations of judicial power,” so said the City of
Waskom. And, a municipal ordinance purporting to criminalize abortion, which ordinance
the litigants concede the municipality lacked authority to enact. These circumstances
underlie the defamation suit from which this appeal arose. But, does the debate
surrounding them depict defamation or protected opinion? That is the dispositive
question before us.
In 2019, the City of Waskom, in Harrison County, Texas, enacted a municipal
ordinance decrying Roe and outlawing abortion in all but a few forms. Other rural cities
followed suit. Under the ordinance, entities participating or facilitating abortions were also
designated to be criminal organizations. Mark Lee Dickson, an outspoken advocate for
the ordinance, accused the Lilith Fund for Reproductive Equity of being a criminal
organization and committing murder under that ordinance because it helped others obtain
abortions permissible within the scope of Roe. Lilith returned volley by purchasing a
billboard in Waskom declaring “Abortion is Freedom.” Dickson then referred to the
billboard in describing Lilith (and NARAL Pro-Choice Texas) as “advocates for the murder
of those innocent lives.”
Lilith sued Dickson and the entity he represented, Right to Life East Texas, for
defamation and conspiracy. Would a person of reasonable intelligence and learning, and
who uses care and prudence in evaluating circumstances believe Dickson is alleging Lilith
committed a criminal act? The answer to that question controls the disposition of this
appeal. We answer “no” because the accusation is an “opinion masquerading as fact”
under the entire context of the conversation being had.
The appeal comes to us as another mole to show its head in the field laid by the
Texas Citizens Participation Act (TCPA).1 TEX. CIV. PRAC. & REM. CODE ANN. § 27.001
1 See Western Mktg. v. AEG Petroleum, LLC, 616 S.W.3d 903, 909 (Tex. App.—Amarillo 2021,
pet. filed) (describing an interlocutory appeal involving the TCPA as mimicking “a game of ‘whack-a-mole’;
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et seq. (West & Supp. 2020). The trial court denied, through silence, the motion of
Dickson and Right to Life East Texas (East TX) to dismiss the defamation and conspiracy
suit. In denying their TCPA motion, the trial court allegedly erred. We agree, reverse,
and remand.2
We do not belabor disposition of the appeal by dissertation on the standard of
review applicable in TCPA appeals. Others have expounded upon it at sufficient length.
See, e.g., Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 891 (Tex. 2018)
(discussing same); Zilkha-Shohamy v. Corazza, No. 03-20-00380-CV, 2021 Tex. App.
LEXIS 5698, at *8–11 (Tex. App.—Austin July 16, 2021, no pet. h.) (mem. op.) (same);
Casey v. Stevens, 601 S.W.3d 919, 922–24 (Tex. App.—Amarillo 2020, no pet.) (doing
same).
Furthermore, all parties agree that the TCPA applies. The debate concerns two
areas, though. One involves whether Lilith established a prima facie case for each
element of its claims through clear and specific evidence. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.005(c) (stating that a court may not dismiss a legal action if the party bringing
it “establishes by clear and specific evidence a prima facie case for each essential
element of the claim in question”). The other concerns whether Dickson established an
affirmative defense or other ground entitling him to dismissal as a matter of law. Id.
§ 27.005(d) (obligating the trial court to dismiss the action “if the moving party establishes
an affirmative defense or other grounds on which the moving party is entitled to judgment
as soon as the court disposes of one, another pops up. And each leads down the tortuous winding TCPA
mole-hole”).
2 Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.
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as a matter of law”). Irrespective of whether approached as an element of defamation or
a defense to it, the result is the same. On the record before us, we conclude as a matter
of law that Dickson’s comments were inactionable opinion as discussed below.
We begin our journey through the mole field by addressing argument pertaining to
the elements of defamation. Dickson contends that Lilith failed to establish a prima facie
case on each one. The elements of the claim consist of 1) the publication of a false
statement of fact to a third party, 2) that was defamatory and concerned the plaintiff, and
3) was made with the requisite degree of fault. Dallas Morning News, Inc. v. Hall, 579
S.W.3d 370, 377 (Tex. 2019); Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 623
(Tex. 2018). Such a statement of fact must be more than false, abusive, unpleasant, or
objectionable; it must be defamatory. Rehak Creative Servs. v. Witt, 404 S.W.3d 716,
728 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). It must be of the ilk that tends
to injure one’s reputation and “expose the person to public hatred, contempt or ridicule,
or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to
publish the natural defects of anyone and thereby expose the person to public hatred,
ridicule, or financial injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (West 2017);
Rehak Creative Servs., 404 S.W.3d at 728. And, whether the statement can be viewed
as such involves an objective, not subjective, assessment. Id. In other words, we look
at it through the eyes of an ordinary prudent person with ordinary intelligence and assess
how that person would perceive it when viewing its entire context. Carr v. Brasher, 776
S.W.2d 567, 570 (Tex. 1989) (stating that the allegedly libelous statement must be
construed as a whole, in light of surrounding circumstances based upon how a person of
ordinary intelligence would perceive the entire statement); Freiheit v. Stubbings, No. 03-
4
12-00243-CV, 2014 Tex. App. LEXIS 13889, at *5 (Tex. App.—Austin Dec. 31, 2014, no
pet.) (mem. op.) (quoting Carr, 776 S.W.2d at 570). Such a person is neither “omniscient”
nor a “dullard.” See Rehak Creative Servs., 404 S.W.3d at 728. An ordinary prudent
person is one who uses care and prudence when evaluating circumstances and one who
has reasonable intelligence and learning. Id. And, unless the words in play are
ambiguous, our assessment of their potential for defaming implicates a question of law,
id. at 728–29, which frees us from deferring to the trial court’s interpretation. Gulf Chem.
& Metallurgical Corp. v. Hegar, 460 S.W.3d 743, 747–48 (Tex. App.—Austin 2015, no
pet.) (stating that the reviewing court does not defer to the trial court on questions of law);
see also Dallas Morning News, Inc. v. Tatum, 554 S.W.3d at 624 (stating that if the court
determines the language of the statement is ambiguous then a jury should decide the
statement’s meaning).
We reemphasize that the obligatory viewpoint is that of the ordinary prudent person
considering the entire context of the words. That context generally includes more than
the words themselves. A myriad of circumstances, including such things like
“accompanying statements, headlines, pictures, and the general tenor and reputation of
the source itself” help define that context. City of Keller v. Wilson, 168 S.W.3d 802, 811
(Tex. 2005); Rehak Creative Servs., 404 S.W.3d at 729.
Another matter bears mentioning before we turn to our analysis. It concerns
certain forms of words or phrases which, again from their context, are opinions or
rhetorical hyperbole. Neither may be actionable. See Scripps NP Operating, LLC v.
Carter, 573 S.W.3d 781, 795 (Tex. 2019) (discussing when opinion may be non-
actionable); Backes v. Misko, 486 S.W.3d 7, 26 (Tex. App.—Dallas 2015, no pet.)
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(observing that rhetorical hyperbole is inactionable). The former fall within two categories.
The first category encompasses statements which are not verifiable as false. Scripps NP
Operating, LLC, 573 S.W.3d at 795; Dallas Morning News, Inc. v. Tatum, 554 S.W.3d at
639. The second encompasses statements which may be verifiable as false but their
entire context nevertheless reveals them to be merely opinions masquerading as fact.
Scripps NP Operating, LLC, 573 S.W.3d at 795; Dallas Morning News, Inc. v. Tatum, 554
S.W.3d at 639. As said in Dallas Morning News, “statements that cannot be verified, as
well as statements that cannot be understood to convey a verifiable fact [given their entire
context], are opinions.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d at 639. And,
whether the utterances at issue fall within either category also entails a question of law.
Id.
As for rhetorical hyperbole, such often are characterized as extravagant
exaggerations utilized for rhetorical effect, Campbell v. Clark, 471 S.W.3d 615, 626–27
(Tex. App.—Dallas 2015, no pet.); ABC, Inc. v. Gill, 6 S.W.3d 19, 30 (Tex. App.—San
Antonio 1999, pet. denied), or vigorous epithets. Greenbelt Coop. Pub. Ass’n v. Bresler,
398 U.S. 6, 14, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970). Indeed, a sister court recently
described such speech statements that an “ordinary reader” would view as an
overstatement or rhetorical flourish and unintended to be taken literally. Dickson v. Afiya
Ctr., No. 05-20-00988-CV, 2021 Tex. App. LEXIS 6261, at *37 (Tex. App.—Dallas Aug.
4, 2021, no pet. h.) (mem. op.). We read that court’s reference to an “ordinary reader” as
meaning the reasonable person to which we previously alluded; after all, it is the eyes of
that person through which we peer in gauging whether statements are defamatory. And,
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as with opinions, whether an utterance is rhetorical hyperbole, given its context, is a
question of law. See id. at *11.
We now turn to our analysis of the statements underlying Lilith’s suit. They were
uttered over a period of time and generally related to the aforementioned ordinance and
in response to Lilith’s own advocacy. For instance, Dickson congratulated Waskom for
being the first to become a sanctuary city, proclaimed that abortion was “outlawed” there,
and noted that organizations which perform or assist with obtaining abortions were
“criminal organizations.” The litany of organizations identified in his message included
Lilith. Two other statements by Dickson were:
“Abortion is Freedom” in the same way that a wife killing her husband would
be freedom - Abortion is Murder. The Lilith Fund and NARAL Pro-Choice
Texas are advocates for abortion, and since abortion is the murder of
innocent life, this makes these organizations advocates for the murder of
those innocent lives. This is why the Lilith Fund and NARAL Pro-Choice
Texas are listed as criminal organizations in Waskom, Texas. They exist to
help pregnant Mothers murder their babies.
[and]
Nothing is unconstitutional about this ordinance. Even the listing of abortion
providers as examples of criminal organizations is not unconstitutional. We
can legally do that. This is an ordinance that says murdering unborn
children is outlawed, so it makes sense to name examples of organizations
that are involved in murdering unborn children. That is what we are talking
about here: The murder of unborn children. Also, when you point out how
the abortion restrictions in 2013 cost the State of Texas over a million
dollars, you should also point out how many baby murdering facilities closed
because of those restrictions. We went from over 40 baby murdering
facilities in the State of Texas to less than 20 baby murdering facilities in the
State of Texas in just a few years. Even with the win for abortion advocates
with Whole Woman’s Health v. Hellerstedt, how many baby murdering
facilities have opened back up? Not very many at all. So thank you for
reminding us all that when we stand against the murder of innocent children,
we really do save a lot of lives.
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All of the foregoing statements pertain to the campaigns of Dickson and East TX
to end abortion and pursue the reversal of Roe v. Wade. No one can reasonably deny
that both topics have been the stuff of ever-increasing discussion and attention even
before 1973. Nor can one reasonably deny that abortion and the Supreme Court’s
decisions on the issue trigger emotional, intellectual, moral, and religious debate.3 They
have and will continue to do so.4 They have and will continue to influence elections and
legislation. One within the legal standard of neither a dullard nor omniscient but, rather,
of reasonable intelligence and learning who utilizes care and prudence in evaluating
circumstances would know that to be an accurate assessment of the debate’s effect.
Similarly, those involved on both sides of the debate have utilized colorful rhetorical
devices to garner attention to the issues. On the “pro-choice” side, for example, Lilith
refers to abortion as being “freedom.” On the “pro-life” side, medical personnel have been
called “murderers.”5 The same is true of mothers undergoing an abortion.6 No doubt,
3 See Frank Pavone, Democrats Exalt Their Woman, Pope Francis Exalts His: Column, USA
TODAY, Sept. 4, 2016, https://www.usatoday.com/story/case/p2016/09/04/mother-teresa-clinton-abortion-
francis-democratic-platform-hyde-amendment-beautification-column/89729254 (describing Mother
Teresa’s stance on abortion as expressed during a National Prayer Breakfast).
4 Treva B. Lindsey, A Concise History of the US Abortion Debate, THE CONVERSATION, June 10,
2019.
5 See, e.g., Alexa N. D’Angelo, Supporters, Opponents Rally at Planned Parenthood Sites in
Arizona, U.S., THE REPUBLIC, Aug. 22, 2018, https://www.azcentral.com/story/news/local/phoenix/2015/08/
22/supporters-opponents-rally-planned-parenthood-sites-arizona-us/32203591/; Diana Pearl, Free Speech
Outside the Abortion Clinic, THE ATLANTIC, Mar. 19, 2015, https://www.theatlantic.com/health/archive/2015/
03/free-speech-outside-the-abortion-clinic/388162/; Michael Sheridan, Rep. Randy Neugebaurer: I Yelled
‘Baby Killer’ During Rep. Bart Stupak’s Speech, NY DAILY NEWS, Mar. 22, 2010,
https://www.nydailynews.com/news/politics/rep-randy-neugebauer-yelled-baby-killer-rep-bart-stupak-
speech-article-1.173917.
6 See Frank Pavone, Democrats Exalt Their Woman, Pope Francis Exalts His: Column, USA
TODAY, Sept. 4, 2016, https://www.usatoday.com/story/case/p2016/09/04/mother-teresa-clinton-abortion-
francis-democratic-platform-hyde-amendment-beautification-column/89729254 (reiterating Mother
Teresa’s statement that “[T]he greatest destroyer of peace today is abortion, because it is a war against
the child, a direct killing of the innocent child, murder by the mother herself. And if we accept that a mother
can kill even her own child, how can we tell other people not to kill one another?”).
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many uttering these words believe in their accuracy, advocate for others to believe it, and
have the ability to rationally explain the basis of their belief. Yet, as Lilith implicitly
acknowledged, a reasonable person would understand the label to be a non-defamatory
opinion or hyperbole given its context.7
Another item of context involves the ordinance itself. Its constitutionality is not
before us. Nevertheless, the municipal edict frames Dickson’s comments. Several
observations warrant mention. First, Dickson represented to this Court through his
attorney that 1) “because Waskom is a city, it doesn’t have the power to create crimes
under city law”; 2) “[t]hat is only something the state legislature can do”; and 3) “Waskom
doesn’t have the authority to make something a crime.”8
Moreover, the Waskom city council described Roe as “a lawless and illegitimate
act of judicial usurpation, which violates the Tenth Amendment by trampling the reserved
powers of the States and denies the people of each State a Republican Form of
Government by imposing abortion policy through judicial decree.” Nevertheless,
enforcement of the alleged criminal aspect of the ordinance was expressly conditioned
upon the rescission of Roe. The pertinent language consisted of the city council saying
that 1) “no punishment shall be imposed upon the mother of the pre-born child that has
been aborted” and 2) “[i]f (and only if) the Supreme Court overrules Roe v. Wade, 410
U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), a corporation
or entity that commits an unlawful act described in Section C shall be subject to the
7 Lilith wrote in its appellee’s brief that “[g]enerally calling abortion ‘murder’ alone is not defamatory.”
8 Because Dickson conceded that Waskom lacked the authority to criminalize abortion, he was
actually referring to the Texas statute implicated in Roe. Yet, the latter was not a part of the context
underlying his comments. He never mentioned the statute in them, only the Waskom ordinance.
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maximum penalty permitted under Texas law for the violation of a municipal ordinance
governing public health, and each violation shall constitute a separate offense.”
Conditioning the imposition of any criminal penalty on the rescission of the very Supreme
Court precedent the body attacked is novel. Without the risk of punishment being levied,
it is unclear if anyone possesses standing to challenge the constitutionality of the
ordinance’s penal effect before a court for final adjudication. At the same time, it arguably
permits individuals to refer to the corporations in terms suggesting illegal conduct. As
noted above, the constitutionality of the ordinance is not being challenged on appeal.
Third, while Texans are not presumed to agree with the law, they are presumed to
know it. See S. C. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00965-CV, 2020
Tex. App. LEXIS 9122, at *6 (Tex. App.—Austin Nov. 18, 2020, no pet.) (mem. op.)
(quoting E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 118 Tex. 650, 655, 23 S.W.2d
695, 697 (1930)). The proverbial reasonable person alluded to earlier would presumably
have that knowledge as well. And, an aspect of that knowledge consists of the United
States Constitution prescribing that it is “the supreme Law of the Land.” U.S. CONST. art.
VI, cl. 2. Another aspect consists of the dictate that the United States Supreme Court is
the arbiter of what the Constitution says. See Marbury v. Madison, 5 U.S. 137, 2 L. Ed.
60 (1803). One cannot escape nor ignore the effect of those legal principles; so, a
reasonable person would or should know that a municipality cannot itself reverse
Supreme Court precedent such as Roe and punish that which it allowed. Waskom
acknowledged as much by expressly conditioning the punitive effect of its ordinance on
the vitiation of Roe.
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Again, all the foregoing depicts the context of Dickson’s words when pursuing his
campaign to end abortion and inspire the eventual nullification of Roe. And, that context
leads us to conclude that a reasonable person of ordinary learning would deem his
accusation about Lilith being a criminal entity engaged in criminal acts as opinion
masquerading as a statement of fact uttered in the course of advocating for a change in
law. His words differ little from language that even Lilith admits is inactionable, that is,
language which likens individuals who facilitate abortion as murderers. Nor does his
allusion to the Waskom ordinance as basis for his accusation change our view. The
ordinance itself describes abortion as murder, just as many protesters have done over
the decades.
Simply put, Dickson’s comments were made within the context of a political,
ethical, moral, and legal stage built in part by the Waskom city council. He expounded
about how Waskom “got it right” in purporting to outlaw abortion while also castigating
Roe and the court rendering the decision. He urged others to believe that those facilitating
abortion were criminals much in the same way that others liken those who perform
abortions to murderers. Members on both sides of the debate no doubt believe their
positions to be true. Members on both sides offer argument rationalizing their respective
positions. And, no doubt, some may well believe Dickson when saying that Lilith is a
criminal organization because Waskom enacted an ordinance purporting to nullify
Supreme Court precedent. Yet, the legal standard by which we must abide is the
“reasonable person.” He or she “‘does not represent the lowest common denominator,
but reasonable intelligence and learning. He or she can tell the difference between satire
and sincerity.’” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004) (quoting
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Patrick v. Superior Court, 22 Cal. App. 4th 814, 821, 27 Cal. Rptr. 2d 883, 887 (1994)).
And, “the question [becomes] not whether some actual readers [or listeners] were
[misled], as they inevitably will be, but whether the hypothetical reasonable reader could
be.” Id. Putting aside subjective beliefs, we focus on the single objective inquiry of
whether the utterance can be reasonably understood as stating actual fact. See id.(involving satire). Even if what Dickson uttered could be characterized as statements of
fact and even if some readers were to believe them, the context surrounding those
utterances would lead a reasonable person of ordinary learning with a penchant for
reasonable investigation to see them as opinion masquerading as fact or rhetorical
hyperbole masquerading as fact.
Moreover, their entire context is the circumstance which causes us to disagree
with the recent conclusions of our sister court in Dickson v. Afiya Center. The panel
writing that opinion deemed statements uttered by Dickson (mirroring those said here) to
be statements of fact rather than opinion. It so concluded because it found them to be
verifiable. Dickson v. Afiya Ctr., 2021 Tex. App. LEXIS 6261, at *11–13. And, they were
verifiable because they purported to represent the status of the criminal law in Texas
while existing penal provisions could verify their accuracy or inaccuracy. Id. Yet, as
mentioned earlier, non-actionable opinion may take two forms, according to our Supreme
Court in Dallas Morning News. One encompasses statements of fact subject to
verification. That is the category upon which the Afiya Center court relied. It said nothing
of the second category, that being comments appearing to be statements of fact subject
to verification but by their entire context are nothing other than opinion masquerading as
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fact. That is the category in which we conclude that Dickson’s comments fall, as a matter
of law.
Admittedly, we agree with the Afiya Center panel when it says that simply
interjecting the word “abortion” into the discussion does not ipso facto make the
statements inactionable opinion. Falsely accusing one of “robbing a bank to fund an
abortion protest” most likely would not insulate the defamation about robbing a bank
merely because the word “abortion” were interjected into the passage. That is not what
we have here, though. As explained earlier, Dickson’s words were part of the abortion
debate itself, as was the municipal enactment to which he referred and which supported
his viewpoint. That context is what the Afiya Center did not address, and that context is
an indisputable part of the entire canvas upon which he left his words.
The same is no less true of the panel’s conclusion regarding rhetorical hyperbole.
It found that his words were not such because a reasonable person could believe that
Dickson “intended the statements literally.” Id. at *39. A person outside an abortion clinic
yelling that those inside are “murderers” no doubt believes and wants others to believe
that terminating a fetus’ viability is intentionally killing a human life, i.e., murder. If what
some person speaking the words believed and intended alone were the test then he or
she would be engaging in defamation under the Afiya Center analysis. Yet, the focus is
not on what the speaker intended but what a reasonable person would believe, given the
context involved. The Afiya Center panel does not consider the entire context of
Dickson’s words but only whether he intended them to be taken literally. That is an
inaccurate focus. Again, the context of words is all important.
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Being opinion, the comments uttered by Dickson and upon which Lilith based its
suit are inactionable. They being inactionable, East TX’s purported conspiracy to engage
in publishing them is equally inactionable. Consequently, the trial court erred in failing to
dismiss Lilith’s suit under the TCPA.
Thus, we reverse the trial court’s sub silentio decision denying dismissal and
render judgment dismissing the claims of defamation and conspiracy averred by the Lilith
Fund for Reproductive Equity against Mark Lee Dickson and Right to Life East Texas.
We also remand the cause to the trial court with directions to 1) award Dickson and Right
to Life East Texas court costs and reasonable attorney’s fees per § 27.009(a)(1) of the
Texas Civil Practice and Remedies Code and 2) determine sanctions, if any, per
§ 27.009(a)(2) of the same.
Brian Quinn
Chief Justice
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