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Jones v. Pozner

Court of Appeals of Texas, Third District, Austin

November 5, 2019

Alex E. Jones; Infowars, LLC; and Free Speech Systems, LLC, Appellants
v.
Leonard Pozner and Veronique De La Rosa, Appellees

          FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-001842, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING.

          Before Rose, Chief Justice, Triana and Kelly, Justices.

          MEMORANDUM OPINION

          Gisela D. Triana, Justice.

         Appellants Alex E. Jones; Infowars, LLC; and Free Speech Systems, LLC, appeal from the district court's order denying their motion to dismiss under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.003.[1] Because we determine that Appellees Leonard Pozner and Veronique De La Rosa have met their burden of establishing a prima facie case for defamation and that Appellants have not established a valid defense, we affirm the district court's denial of Appellants' motion to dismiss.

         BACKGROUND

         Infowars, LLC, operates as the website InfoWars.com, which presents itself as a news media outlet. Free Speech Systems, LLC, owns and operates Infowars, LLC. Jones is the sole member of both entities. Jones publishes the InfoWars website and is the host of its associated shows. Pozner and De La Rosa (the parents) are the parents of Noah Pozner, a child who was killed in the Sandy Hook Elementary School shooting in December 2012. They sued Appellants in April 2018 for defamation and defamation per se based on statements made in three broadcasts that disputed whether the shooting that took their son's life actually occurred and whether, if the children were killed, they were shot as part of a staged event. The broadcasts on which the parents rely aired on April 22, April 28, and June 13, 2017. In addition to asserting a defamation claim, the parents' original petition alleged that Appellants engaged in a conspiracy, that InfoWars and Jones were liable for their employees' actions under the theory of respondeat superior, and that the parents suffered general and special damages.[2] In June 2018, Appellants filed a motion to dismiss under the TCPA (First Motion to Dismiss), and a hearing on that motion was set for August 1.

         A flurry of activity filled the week before the hearing. The parents filed a response to the motion to dismiss on July 25. Appellants then filed a "supplement" to their motion on July 27 (the Friday before the hearing date) that included additional argument, exhibits, and supplemental affidavits, and on July 30, they filed another supplemental affidavit in support of their motion. On July 31, Appellants filed a second "supplement" along with another supplemental affidavit and also filed a seventy-page document objecting to the evidence the parents had filed with their response to the motion to dismiss.[3] That same day, the parents amended their petition to include a claim for intentional infliction of emotional distress. They also filed objections to the affidavit and supplemental affidavits (and the attached exhibits) filed by David Jones (Appellant Jones's son), and they objected that both supplements to the motion to dismiss were untimely.

         After the parties presented their arguments at the hearing on the motion, the district court recessed the hearing to allow the parties to agree on what should be included in the record. On August 2, the day after the hearing, the court held a conference with counsel for both parties to determine how to conclude the written record and close the TCPA hearing. On the same day, the parents submitted supplemental declarations further detailing their alleged damages, and Appellants filed a second motion to dismiss under the TCPA (Second Motion to Dismiss) to address the newly added claim for intentional infliction of emotional distress. The second motion to dismiss was set for a hearing on September 19. On August 29, the district court signed an order denying the First Motion to Dismiss. On September 12, Appellants filed a notice of appeal from the August 29 order, which is the basis for this appeal.

         DISCUSSION

         "The [TCPA] protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The protection comes in the form of a motion to dismiss a suit that would stifle the defendants' exercise of those rights. Id. "Reviewing a TCPA motion to dismiss requires a three-step analysis." Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the party moving for dismissal must show by a preponderance of the evidence that the TCPA applies to the legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant meets that burden, the nonmovant must establish by clear and specific evidence a prima facie case for each essential element of its claim. Id. § 27.005(c). "The words 'clear' and 'specific' in the context of this statute have been interpreted respectively to mean, for the former, 'unambiguous,' 'sure,' or 'free from doubt' and, for the latter, 'explicit' or 'relating to a particular named thing.'" Hawxhurst v. Austin's Boat Tours, 550 S.W.3d 220, 230 (Tex. App.- Austin 2018, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590). "In determining whether a legal action should be dismissed under [the TCPA], the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code § 27.006(a) ("Evidence"). Collectively, these elements require that the "plaintiff must provide enough detail to show the factual basis for its claim." Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam). If the nonmovant satisfies that requirement, the burden shifts back to the movant to prove each essential element of any valid defenses by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code § 27.005(d).

         The parties do not dispute that the TCPA applies to the defamation action against Appellants. Therefore, only the second and third steps of the TCPA analysis are at issue here- whether the parents established by clear and specific evidence a prima facie case for each essential element of their defamation claim and, if so, whether Appellants proved each essential element of their statute of limitations defense by a preponderance of the evidence. We review de novo whether the parties met their respective burdens of proof under section 27.005. See Smith Robertson, L.L.P. v. Hamlin, No. 03-18-00754-CV, 2019 Tex.App. LEXIS 5787 at *5 (Tex. App.-Austin July 11, 2019, pet. filed) (mem. op.); Batra v. Covenant Health Sys., 562 S.W.3d 696, 708 (Tex. App.-Amarillo 2018, pet. denied).

         Prima Facie Case for Defamation

         In the second step of the analysis, the parents must establish by clear and specific evidence a prima facie case for each essential element of their defamation claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c). "In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss." In re Lipsky, 460 S.W.3d at 591. The TCPA "does not impose an elevated evidentiary standard or categorically reject circumstantial evidence." Id. Defamation occurs when "(1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a private individual); and (4) damages (unless the statement constitutes defamation per se)." D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017). "The status of the person allegedly defamed determines the requisite degree of fault." In re Lipsky, 460 S.W.3d at 593. A private individual need prove only negligence, whereas a public figure or official must prove actual malice. Id. (citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). Finally, the plaintiffs must plead and prove damages, unless the defamatory statements are defamatory per se. Id. (citing Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 162 n.7 (Tex. 2014)). Defamation per se refers to statements that are so obviously harmful that general damages may be presumed. Id.

         In determining whether the parents met their burden to establish a prima facie case for defamation, we are mindful that courts analyze the truth or falsity of a broadcast under the substantial truth doctrine: "if a broadcast taken as a whole is more damaging to the plaintiff's reputation than a truthful broadcast would have been, the broadcast is not substantially true and is actionable." Neely v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013) (citing Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) ("the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements")). "Assessing a broadcast's gist is crucial." Id. A broadcast with statements that err in the details but that correctly convey the gist of a story is substantially true. Id. at 63-64. "On the other hand, a broadcast 'can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story's individual statements considered in isolation were literally true or non-defamatory.'" Id. (quoting Turner, 38 S.W.3d at 114). Courts determine a broadcast's gist or meaning by examining how a person of ordinary intelligence would view it. Id.

         Both parties acknowledge that Noah Pozner was killed in the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. The parents assert that Appellants' broadcasts present false assertions of fact regarding their son's death and that those assertions are defamatory, that they were made with the requisite degree of fault, and that they have harmed the parents. The three 2017 broadcasts at issue in this case are from different platforms. The April 22 broadcast is an InfoWars video in which Jones speaks for most of the duration of the hour-long broadcast. The April 28 broadcast is a press conference at which Jones spoke. The June 13 broadcast is a video Jones posted to the InfoWars Facebook page. Because it is dispositive of this interlocutory appeal, we address only the April 22 broadcast.[4]

         False and Defamatory Broadcast

         "Texas recognizes the common-law rule that defamation is either per se or per quod." Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). "Defamation per se occurs when a statement is so obviously detrimental to one's good name that a jury may presume general damages, such as for loss of reputation or for mental anguish." Id. (citing Hancock v. Variyam, 400 S.W.3d 59, 63-64 (Tex. 2013)). Defamation per quod is simply defamation that is not actionable per se. Id. To determine whether the broadcast was false and capable of a defamatory meaning, we begin by analyzing its "gist." D Magazine Partners, 529 S.W.3d at 434 ("In making the initial determination of whether a publication is capable of a defamatory meaning, we examine its 'gist.'") (citing Neely, 418 S.W.3d at 63); In re Lipsky, 460 S.W.3d at 594 (noting that the meaning of a publication depends on a reasonable person's perception of the entire "publication and not merely on individual statements" and concluding "the gist" of the statements sufficed to defeat a TCPA motion to dismiss).

         The April 22 broadcast contained direct false assertions of facts implying that the parents colluded in what Appellants cast as a hoax relating to the murder of their son, as well as a whirlwind of other statements that, according to Jones, "all tie[] together" and relate to the shooting at Sandy Hook. Jones begins the broadcast by describing what he believes to be evidence of the government's and media's willingness to deceive people. Early in the broadcast, Jones explains that Julian Assange (the founder of WikiLeaks) and others are not "leakers" because "you're not a leaker when you're exposing criminal activity in an out of control, rogue government." He also describes and shows a clip from a segment where he says Madeline Albright is asked whether half a million children dying in Iraq was a reasonable price to pay for the 1991 war in Iraq, and she responds, "I think this is a very hard choice, but the price, we think the price is worth it." Jones explains that the government involved the nation in a war under false pretenses and also lied in 2003 "about WMDs [weapons of mass destruction]. And we've been lied to over and over again." Jones states that he is trying "to get to the heart of the matter of what's going on, even though it's painful to try to cover some of these topics." He critiques the media for taking his comments out of context and states: "when we've gotten pieces of ...


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