A disturbing decision from a Texas court of appeals held last year that an anonymous person, who allegedly called several of the advertisers in D Magazine and accused the magazine of being “racist,” and who has been sue for defamation, could not file a motion to dismiss under the Texas anti-SLAPP law contending that the libel suit by the magazine’s publisher, Allison Publications, lacked a sufficient legal and evidentiary basis. The court held that an anti-SLAPP motion seeks “affirmative relief” and hence cannot be pursued by an anonymous party, just as an original lawsuit may generally not be brought anonymously. The opinion includes a truly bizarre treatment of the issue of subject matter jurisdiction, saying that a defendant sued as a Doe is only a legal fiction whose presence in the case cannot support jurisdiction.
The Doe defendant has sought review in the Texas Supreme Court, and, worried that this holding would make it too easy for Texas plaintiffs to use baseless litigation to force the identification of their critics. Public Citizen filed an amicus brief urging review. The brief urges the Texas Supreme Court both to consider adopting the Dendrite standard for weighing the right to speak anonymously against the right to pursue lawsuits over actionable speech, and to decide that the Texas Citizens Participation Act (the TCPA) affords a proper procedural mechanism for invoking the Dendrite standard. One of the ironies of the case is that counsel for Haynes and Boone, the firm that represents Allison Publications, has played a major role in seeking the enactment of the TCPA and in opposing efforts to weaken the law; it created the blog Slapped in Texas, although it does not appear that the blog has been updated recently.
The amicus brief takes no position on whether the defamation action is baseless – it is not at all clear what the anonymous defendant actually said – or whether the TCPA motion can succeed if considered on its merits. In subsequent communications, the defendant doubled down on her view, liberally throwing around the accusation of racism, but in a manner probably defensible as rhetorical hyperbole. If all she did in her phone calls with the advertisers is use the word “racist,” it is hard to see a defamation action succeeding – however hurtful the accusation would be.
We are grateful to Pete Kennedy for co-counseling on the amicus brief.