Court of Appeals of Texas, Third District, Austin
Alex E. Jones; lnfowars, LLC; and Free Speech Systems, LLC, Appellants
Scarlett Lewis, Appellee
THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-006623, THE HONORABLE SCOTT H. JENKINS, JUDGE
Chief Justice Rose, Justices Triana and Kelly
D. TRIANA, JUSTICE
Alex E. Jones; Infowars, LLC; and Free Speech Systems, LLC,
appeal from the district court's order denying their
motion to dismiss under section 27.003 of the Texas Citizens
Participation Act (TCPA). See Tex. Civ. Prac. &
Rem. Code § 27.003. We will affirm the district court's
denial of Appellants' motion to dismiss.
Lewis's son was killed in the Sandy Hook Elementary
School shooting in December 2012. Lewis sued Appellants in
October 2018 for intentional infliction of emotional distress
(IIED) related to Appellants' statements in multiple
broadcasts disputing whether the shooting that killed
Lewis's son really occurred. Appellants filed a motion to
dismiss Lewis's claim under the TCPA. Lewis sought
limited discovery relating to the motion to dismiss, and the
district court entered orders in January and March directing
Appellants to respond to Lewis's discovery requests.
Because Appellants did not timely respond, the district court
held a hearing on a Motion for Sanctions on April 3. At that
hearing, Robert Barnes, one of the attorneys for Appellants,
agreed to withdraw most of his TCPA motion to dismiss in lieu
of turning over the documents. He agreed that the motion
would be reduced to a single legal question: "we'll
only dispute whether or not someone can bring an intentional
infliction of emotional distress claim when they have never
been individually identified by any statement." The
THE COURT: You're going to limit your motion to dismiss
to a pure question of law whether such a claim can be brought
as an intentional infliction claim under the law.
MR. BARNES: Yes, Your Honor.
THE COURT: And you will concede today, and you are for the
record, that for the purpose of deciding the motion to
dismiss the Court can assume that the statements made by Alex
Jones were done with malice, that is to say, he knew they
were false and said them anyway.
MR. BARNES: We're not disputing the intent issue as to
this motion, that's correct, Your Honor.
THE COURT: So he intended to make false statements. The
question is, can you take that intent to make false
statements and can an individual bring a claim for
intentional infliction on those facts?
MR. BARNES: Precisely, Your Honor. In other words, if the
case is -- when someone has not been personally mentioned --
in the defamation context they call it colloquium, which the
word colloquial comes from. And if no statement is ever made
about that person, can that person bring a claim for
defamation or intentional infliction of emotional distress
when they have never been mentioned? That --
THE COURT: Well, what you're saying now means they
don't even need to put on any affidavits or anything on
the hearing on March -- on May 2nd; they ...