John Tiegen v. Frederic Slice ( 2020 )

AFFIRMED and Opinion Filed February 13, 2020
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-19-00285-CV
JOHN TIEGEN, Appellant
V.
FREDERIC SLICE, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-15264
MEMORANDUM OPINION
Before Justices Whitehill, Schenck, and Evans
Opinion by Justice Whitehill
Appellant John Tiegen sued appellee Frederic1 Slice for defamation and other torts. The
trial court granted Slice’s Texas Citizens Participation Act (TCPA) dismissal motion. Tiegen
appeals.
The pivotal question is whether Tiegen adduced clear and specific evidence that Slice made
the defamatory statements with actual malice, i.e., knowledge that the statements were false or
reckless disregard regarding their truth. Concluding that Tiegen failed to carry his burden, we
affirm.
1
Documents in the clerk’s record refer to appellee variously as Fred, Frederic, and Frederick Slice. We use Frederic because that is how the
notice of appeal refers to him.
I. BACKGROUND
A. Factual Allegations
Tiegen’s live pleading alleged these facts.
Tiegen is a former United State Marine. In September 2012, Tiegen was working for the
Central Intelligence Agency as an annex security team member in Benghazi, Libya. On the night
of September 11, 2012, there was a terrorist attack on the United States consulate in Benghazi.
Tiegen participated in the efforts to defend the consulate and the CIA annex. The events in
Benghazi resulted in numerous government and private investigations, as well as a book and
movie.
After the events in Benghazi, Tiegen became a public speaker and a brand ambassador for
various manufacturers.
In September 2018, Tiegen discovered that Slice had created a Twitter handle with a profile
picture that featured Tiegen’s face and the words “Liar of Benghazi.” Slice also posted defamatory
statements about Tiegen elsewhere on the internet. Tiegen attached several of these posts to his
petition. A representative post says, “I’ll never forget that John Tiegen is one [of] the ‘Liars of
Benghazi’, who lied that the Chief of Base ordered the rescue team not to go help the Americans
under attack at the diplomatic mission.”
B. Procedural History
Tiegen sued Slice for statutory libel per se, common law libel per se, tortious interference
with prospective contractual relations, and intentional infliction of emotional distress.
Slice answered and filed a TCPA motion to dismiss the suit.
Tiegen responded, and Slice replied.
After a hearing, the trial court granted Slice’s motion, dismissed the lawsuit, and awarded
Slice attorney’s fees and expenses. Tiegen appealed.
–2–
II. ISSUE PRESENTED
Tiegen’s sole issue asserts that the trial court erred by granting Slice’s motion to dismiss.
Although Tiegen’s issue is broad enough to permit argument as to all four of his claims,
his appellate brief addresses only defamation. Accordingly, any error as to his tortious interference
and emotional distress claims is not before us. See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex.
2007) (per curiam).
III. ANALYSIS
A. Applicable Law
1. The TCPA
The TCPA authorizes defendants to use a dismissal motion procedure in civil cases
involving certain specified rights. See TEX. CIV. PRAC. & REM. CODE §§ 27.003–.005.2 This
procedure involves up to three steps.
At step one, the movant bears the burden to prove by a preponderance of the evidence that
the legal action against him is based on, relates to, or is in response to his exercise of the right of
free speech, association, or petition. See id. § 27.005(b).
If the movant carries his step one burden, the analysis proceeds to step two. At step two,
the nonmovant bears the burden to establish by clear and specific evidence a prima facie case for
each essential element of his claim. Id. § 27.005(c). If he fails to carry this burden, the trial court
must dismiss his claim. Id. § 27.005(b)–(c).
At step two, the clear and specific evidence requirement requires more than mere notice
pleading. Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam). The nonmovant
must provide enough detail to show his claim’s factual basis. Id. However, the TCPA “does not
impose an elevated evidentiary standard or categorically reject circumstantial evidence.” In re
2
All TCPA references in this opinion are to the statute as it existed before certain amendments went into effect on September 1, 2019. See
Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687. The amendments do not apply to this case.
–3–
Lipsky, 460 S.W.3d 579, 591 (Tex. 2015) (orig. proceeding). We consider both the pleadings and
any supporting and opposing affidavits. Id. (citing CIV. PRAC. & REM. CODE § 27.006(a)). We
consider only the pleadings and evidence favoring the nonmovant when determining whether he
established the required prima facie proof. Apple Tree Café Touring, Inc. v. Levatino, No. 05-16-
01380-CV, 2017 WL 3304641, at *2 (Tex. App.—Dallas Aug. 3, 2017, pet. denied) (mem. op.).
If the nonmovant carries his step two burden but the movant has asserted a defense, the
analysis moves to step three. At step three, the movant must establish by a preponderance of the
evidence each essential element of a valid defense to be entitled to dismissal. CIV. PRAC. & REM.
CODE § 27.005(d).
A successful movant is entitled to recover attorney’s fees, expenses, and sanctions. Id.
§ 27.009(a).
We review the trial court’s ruling on a TCPA dismissal motion de novo. Dyer v. Medoc
Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied).
2. Defamation’s Elements
Tiegen’s claims at issue here are for statutory and common law libel. Libel is a subset of
defamation. See Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013) (“The tort of defamation includes
libel and slander.”). Libel means defamation in writing, while slander means spoken defamation.
Id.
“Defamation’s elements include (1) the publication of a false statement of fact to a third
party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and
(4) damages, in some cases.” In re Lipsky, 460 S.W.3d at 593.
The elements of statutory libel and common law libel are the same. See Humane Soc’y of
Dallas v. Dallas Morning News, L.P., 180 S.W.3d 921, 923 (Tex. App.—Dallas 2005, no pet.)
–4–
(proof required to establish statutory libel is same as proof necessary to establish common law
libel).
If the claimant is a public figure, which Tiegen concedes he is for purposes of this case,
the requisite degree of fault is actual malice. See Hearst Corp. v. Skeen, 159 S.W.3d 633, 636–37
(Tex. 2005) (per curiam).
In this context, actual malice means either knowledge that a statement is false or reckless
disregard for the truth. Id. at 637. Reckless disregard is a subjective standard, requiring evidence
that the defendant in fact entertained serious doubts about his statement’s truth or had a high degree
of awareness that his statement was probably false. Forbes Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 171 (Tex. 2003); see also Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Bentley
fleshes out the reckless disregard standard with these rules:
• Mere negligence is not enough to show reckless disregard. 94 S.W.3d at
591.
• “[T]he mere failure to investigate the facts, by itself, is no evidence of actual
malice.” Id. at 595. Neither is failing to investigate the facts as a reasonable
prudent person would do. Id. at 591.
• Evidence that the defendant failed to investigate contrary to his usual
practice and motivated by a desire to avoid the truth may be some evidence
of reckless disregard. Id.
• “[A] purposeful avoidance of the truth is” evidence of actual malice. Id. at
596.
• “A lack of care or an injurious motive in making a statement is not alone
proof of actual malice, but care and motive are factors to be considered.”
Id.
• “An understandable misinterpretation of ambiguous facts does not show
actual malice, but inherently improbable assertions and statements made on
information that is obviously dubious may show actual malice.” Id.
Moreover, we have said that recklessness may be found if there are obvious reasons to
doubt the informant’s veracity or the accuracy of his reports. Campbell v. Clark, 471 S.W.3d 615,
629 (Tex. App.—Dallas 2015, no pet.).
–5–
“The actual malice inquiry focuses on the defendant’s state of mind at the time of
publication.” Forbes Inc., 124 S.W.3d at 173.
B. Step Two: Did Tiegen produce clear and specific evidence of actual malice?
No. Tiegen did not produce clear and specific evidence raising an inference that Slice (i)
knew his statements were false or (ii) entertained serious doubts that his statements were true or
had a high degree of awareness that his statements were probably false.
Tiegen does not dispute that Slice carried his TCPA step one burden. Rather, he argues
that he produced clear and specific evidence of each element of his defamation claims. For
purposes of this opinion, we assume that Tiegen has shown that Slice’s statements about Tiegen
are false, are defamatory, and caused Tiegen damages. Consequently, we focus our analysis solely
on the actual malice element. See In re Lipsky, 460 S.W.3d at 593 (defamation elements).
1. Tiegen’s Pleadings and Evidence
Tiegen’s pleadings and evidence support the premise that Slice made the following
statements:
• Tiegen is a liar.
• Tiegen lied to Congress.
• Tiegen lied under oath, i.e., committed perjury.
Although many of the statements are general statements that Tiegen is a liar, some specify that
Tiegen lied—and lied to Congress—by saying that the chief of base at the CIA annex told Tiegen
and others to “stand down” while the consulate was under attack.
Additionally, Tiegen’s evidence includes one internet post in which Slice asserts that he
conducted the following investigation before concluding that Tiegen lied when he said that the
chief of base told anyone to stand down: (i) he read all congressional reports about the Benghazi
attack, (ii) he read the book and watched the movie 13 Hours, (iii) he watched dozens of videos in
which Tiegen and others told “their story about being told to stand down,” and (iv) he spent
–6–
hundreds of hours over about six years reading everything he could find on the internet “about the
allegation that the Chief of Base in Benghazi stoo[d] down the Annex GRS team.”
2. Tiegen adduced no clear and specific evidence of actual malice.
First, we note that Tiegen’s pleading contains assertions that Slice posted his comments
“with malice” and that he “knew the statements were false and acted with reckless disregard for
the truth.” But he gives no facts to support these conclusions, so his pleading provides no clear
and specific evidence of actual malice. See Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 WL
6273411, at *6 (Tex. App.—Dallas Nov. 30, 2018, no pet.) (mem. op.) (“Conclusory statements
are not probative and will not establish a prima facie case.”).
Tiegen’s affidavit attached to his petition similarly refers to the “untrue and malicious
nature” of Slice’s statements, but this reference is also conclusory.
As to actual knowledge, Tiegen’s brief doesn’t argue that he produced any evidence that
Slice knew his statements about Tiegen were false. Moreover, at oral argument, Tiegen’s counsel
all but conceded that Slice believed his statements were true.3 Thus, we need not consider actual
malice’s knowledge prong and may proceed directly to reckless disregard.
As to reckless disregard, Tiegen argues principally that he met his burden with evidence
that he was never criminally charged with perjury or any other crime relating to Benghazi. For
example, Tiegen filed his own affidavit in which he said, “I was never called a liar or charged with
perjury” after testifying before Congress. He also filed an affidavit by Sarah Adams, a former
senior advisor to the United States House Select Committee on Benghazi. Adams said that no
witnesses interviewed by the committee were charged with perjury. And Tiegen cites an internet
3
Question: “Do you think Slice believes it’s true that [Tiegen] lied to Congress?” Answer: “I believe that, that Mr. Slice believes what he
thinks himself to be correct, yes.” (Oral Argument beginning at 12:51.)
–7–
post in which Slice said that “Tiegen should be indicted for lying to Congress,” as evidence that
Slice knew Tiegen had never been charged with a crime.
But Tiegen’s evidence that he was never charged with or convicted of perjury doesn’t show
any of the typical hallmarks of reckless disregard—it doesn’t show that Slice (i) failed to
investigate contrary to Slice’s usual practice because he wanted to avoid the truth, (ii) made
inherently improbable assertions and statements based on information that was obviously dubious,
or (iii) had obvious reasons to doubt the veracity or accuracy of the information he relied on. See
Bentley, 94 S.W.3d at 591, 596; Campbell, 471 S.W.3d at 629.
Indeed, Tiegen’s evidence doesn’t address Slice’s actual statements at all. There’s no
evidence that Slice ever said that Tiegen had been charged with or convicted of perjury. There’s
only evidence (including Tiegen’s pleading) that Slice said that Tiegen actually lied under oath,
which is a different assertion. In any event, evidence that Tiegen was never charged with or
convicted of perjury doesn’t raise an inference that Slice (i) seriously doubted his statement that
Tiegen in fact lied under oath or (ii) had a high degree of awareness that his statement was probably
false. See Forbes Inc., 124 S.W.3d at 171; Bentley, 94 S.W.3d at 591.
Tiegen also relies on his evidence that Slice posted some defamatory statements about
Tiegen on websites for organizations that pay Tiegen for his sponsorship. This evidence arguably
raises an inference that Slice intended to harm Tiegen by damaging his professional relationships.
But an injurious motive, without more, is no evidence of actual malice for defamation purposes.
Bentley, 94 S.W.3d at 596.
Tiegen relies on Bentley and Campbell, but they don’t support his position. In Bentley, the
defendant was sued for repeatedly claiming that a judge was corrupt, and the supreme court upheld
an actual malice jury finding against him. But in that case there was evidence that “he expressed
doubt to a friend that there was any basis for the charges he was making, and that he deliberately
–8–
ignored people who could have answered all of his questions.” Id. at 602. Tiegen produced no
evidence that Slice did anything similar.
In Campbell, the defendants accused a county commissioner of using his influence to help
someone repeatedly accused of child abuse, and the commissioner sued the defendants for
defamation. 471 S.W.3d at 618–22. In reviewing the denial of the defendants’ TCPA dismissal
motion, we held that there was sufficient evidence of actual malice because the defendants relied
on only a single source, did no investigation to confirm their statements, and made numerous
statements in their defamatory publications that were not quotes from or otherwise derived from
their single source. Id. at 632. Again, Tiegen produced no evidence of similar facts. Indeed, the
only evidence about Slice’s investigation that Tiegen produced showed that Slice reached his
conclusions after a lengthy investigation into numerous sources, including the congressional
record. Even if we disregard this evidence because it doesn’t favor Tiegen’s position, see Apple
Tree Café Touring, 2017 WL 3304641, at *2,4 Tiegen still lacks clear and specific evidence that
Slice made his statement with reckless disregard for the truth.
C. Conclusion
Because Tiegen did not produce clear and specific evidence of actual malice, we overrule
his sole appellate issue.
4
It is not clear that we should apply the Apple Tree Café Touring evidentiary prism to the actual malice element. In another TCPA case, we
appeared to review all the evidence regarding actual malice, both pro and con, in concluding that the nonmovant failed to carry his second step
burden on actual malice. Mohamed v. Ctr. for Sec. Policy, 554 S.W.3d 767, 776–77 (Tex. App.—Dallas 2018, pet. denied). But we need not
address the question here because Tiegen failed to carry his burden even under the more favorable Apple Tree Café Touring approach.
–9–
IV. DISPOSITION
We affirm the trial court’s judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
190285F.P05
–10–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN TIEGEN, Appellant On Appeal from the 44th Judicial District
Court, Dallas County, Texas
No. 05-19-00285-CV V. Trial Court Cause No. DC-18-15264.
Opinion delivered by Justice Whitehill.
FREDERIC SLICE, Appellee Justices Schenck and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Frederic Slice recover his costs of this appeal from
appellant John Tiegen.
Judgment entered February 13, 2020.
–11–