The Volokh Conspiracy
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Pouring Water on Speaker's Head During Press Conference Doesn't "Constitute[] Protected Speech"
A trial court said this pouring (without the target's consent) was indeed constitutionally protected; it took a 2-1 Texas Court of Appeals decision to reverse that.
The Texas Citizens Participation Act—Texas's anti-SLAPP statute—provides a special procedure for dealing with certain lawsuits: Defendants can move for prompt dismissal (and get their attorney fees paid if they win),
- if a lawsuit "is based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party's communication,"
- though the case can still go forward if the plaintiff "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question."
How does this play out if plaintiff accuses defendant of assaulting him during the defendant's public protest? Sanchez v. Striever, decided today by the Texas Fourteenth Court of Appeals, deals with that. First, the facts:
Steve Striever poured water on [Orlando] Sanchez's head while Sanchez [then Harris County Treasurer] addressed the media and others during a press conference.
Sanchez sued Striever for assault, and Striever moved to dismiss the claim using a normal motion to dismiss available for all cases (under Texas Rule of Civil Procedure 91a), and also using the TCPA—and the trial court held in Striever's favor, dismissing the case and awarding him attorney fees:
[T]he Court … concludes that the act of pouring water over Mr. Sanchez constitutes protected speech, and that the suit by Mr. Sanchez also otherwise implicates protected First Amendment rights of the Defendant…. Once the burden shifted, Plaintiff failed to adduce clear and specific evidence of a prima facie case of his claims. Specifically, Plaintiff did not adduce any evidence of any injury whatsoever, even if he could allegedly recover mental anguish damages under the circumstances.
The Court of Appeals majority reversed, in an opinion by Justice Kevin Jewell, joined by Justice Tracy Christopher. As to the 91a motion, it concluded that Striever's conduct could indeed be assault:
[A] person commits … assault … if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative…. Sanchez pleaded each element of a claim … by alleging that Striever intentionally and/or knowingly caused physical contact with Sanchez by pouring water on his head, and that Striever knew or reasonably should have believed that Sanchez would regard the contact as offensive or provocative….
A civil assault claim … does not require personal injury. As offensive physical contact is the gravamen of the claim, the defendant is liable for contacts that are offensive and provocative regardless whether they cause physical harm. Such a claim addresses the personal indignity that often flows from an offensive or provocative invasion of personal space or interests. Emotional distress is not merely incidental to a claim for certain forms of assault; it is "the essence" of it….
In the landmark Fisher v. Carrousel Motor Hotel, Inc. (Tex. 1967) …, for example, Emmit Fisher was standing in line at a luncheon hosted by business associates when the manager of the club approached and "snatched the plate" from Fisher's hand, shouting that Fisher, a black man, could not be served. The Supreme Court of Texas upheld a jury award in Fisher's favor, stating that recovery was permitted for "humiliation and indignity" even though no actual contact occurred so long as there was contact with clothing or an object closely identified with the body.
The court held that the "forceful dispossession of plaintiff Fisher's plate in an offensive manner was sufficient to constitute a battery." Accordingly, Fisher "was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury." The offensive conduct in Fisher would qualify as assault ….
Striever does not dispute that mental anguish damages can be recoverable for a claim under section 22.01(a)(3); he contends rather that Sanchez presented no evidence of mental anguish. But evidence is irrelevant to a court's rule 91a dismissal, which must be based solely on the pleadings. Sanchez pleaded for all damages recoverable by law, including specifically mental anguish, and he was not required to present (nor could the court consider) evidence of mental anguish damages….
And the majority concluded that the TCPA doesn't apply to such behavior:
The TCPA's stated purpose is "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." The act protects citizens from retaliatory lawsuits that seek to intimidate or silence them from exercising their rights in connection with matters of public concern. To accomplish its purpose, the TCPA establishes a mechanism to identify and summarily dispose of actions designed only to chill First Amendment rights, not to dismiss meritorious lawsuits….
To … invoke the TCPA, a moving party must show by a preponderance of the evidence that a legal action "is based on, relates to, or is in response to" the moving party's "exercise of the right of free speech, … or right of association."
The phrase "exercise of the right of free speech" means a "communication made in connection with a matter of public concern." "'Communication' includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." "Matter of public concern" includes an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace. The phrase "exercise of the right of association" means "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests." …
Though the TCPA's free speech definition is not fully coextensive with constitutional free speech rights—and thus the act may classify certain communications as protected even though our national and state constitutions do not—… [w]e cannot construe the act's terms liberally and faithfully to its fundamental purpose blind to the constitutional rights the act is designed to safeguard. Therefore, we look first to whether Striever's conduct, described by him as an act of protest, is protected speech under the First Amendment ….
[T]he First Amendment … protects symbolic speech and expressive conduct as well as actual speech. But not all modes of "communication" are protected by the First Amendment. Throughout our nation's history, for example, courts have long held that assaultive or other types of violent acts simply are not the sort of expressive conduct entitled to constitutional protection. "A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment." Wisconsin v. Mitchell (1993). "[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact … are entitled to no constitutional protection."
The conduct alleged by Sanchez and shown on the video constitutes an assault under Texas law. We therefore conclude that by pouring water on Sanchez, Striever was not exercising any free speech right ….
Because our constitutions do not protect Striever's conduct as free speech, his act can be an exercise of the right of free speech only if the TCPA deems it so…. Standing alone, the statute's facial definition of "free speech" might include "communicative" conduct made in connection with a matter of public concern. Striever asserts, and we assume, that his act of pouring water on Sanchez was meant to express opposition to Sanchez's message delivered at a press conference regarding Houston public schools.
Despite the TCPA's broad implications, however, the act "has its limits" and not every communication falls under the statute…. Reading the TCPA in its entirety, its broad definition of the "exercise of the right of free speech" is necessarily restricted by the expressly stated purpose "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law."
The TCPA plainly contemplates and encourages government participation, but only law-abiding participation comes within its purview. The TCPA's statement of purpose requires us to balance recognized constitutional rights against the rights of all individuals to file lawsuits to redress harm. The TCPA exists to safeguard constitutional rights, not to protect assaultive or criminal conduct under the guise of protest. Striever has a right to participate in government to his heart's desire, but if his protestive conduct devolves into that not "permitted by law," he may not seek refuge in the TCPA when called to account for his actions in court….
Because we have reversed the dismissal order …, we sustain Sanchez's third issue, vacate the award of attorney's fees and costs ….
Justice Meagan Hassan dissented as to the TCPA issue, reasoning in part:
[T]he question presented in this case is not (as Sanchez has attempted to frame it) whether pouring water on Sanchez's head is constitutionally protected speech under the First Amendment. Rather, the question is whether Sanchez's lawsuit is based on, related to, or in response to Striever's exercise of the right of free speech or the right of association as defined by the TCPA when he poured water on Sanchez's head. Sanchez has not cited (and I have not found) any legal authority that an assault by offensive contact is not an exercise of a right of free speech or right of association under the TCPA; based on the plain language of the TCPA, I would therefore reject this argument….
In a society increasingly marked by public protests, I am deeply concerned that the elimination of TCPA protections in protest cases will lead to a deterioration of the People's rights and remedies under the law. The legislature has instructed the courts to balance (1) the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and (2) the rights of a person to file meritorious lawsuits for demonstrable injury.
If Striever had accidentally coughed on Sanchez during a pandemic while holding a protest sign, Sanchez might still have brought a claim for assault by offensive physical contact alleging that the coughing was deliberate, and—if we agreed that Striever was expressing his right of free speech and association while holding the sign—we would move to the second prong, under which Sanchez would be required to prove the deliberate nature of Striever's action as a prima facie element of the cause of action. Under the majority's opinion, however, Sanchez's pleading that the cough was deliberate (i.e., assault) would be taken as true for purposes of proving an underlying unlawful act with no further requirement that he make a prima facie case of same, thereby entirely frustrating the purpose of the TCPA.
I cannot agree with the majority's holding that some participation in government is less valid than others. Nothing in the TCPA itself limits the actions to those that are protected by the First Amendment or that are law-abiding under Texas law, and I reject the majority's attempts to write words into the statute….
Striever's evidence therefore establishes that Sanchez's assault claim is based on, relates to, or is in response to Striever's exercise of the right of free speech as defined by the TCPA because it involved a communication made in connection with an issue related to (1) economic well-being, (2) community well-being (i.e., the education provided to students in Houston's public schools), or (3) the government; as a result, Striever's conduct was a communication (via the medium of pouring water) that was "made in connection with a matter of public concern."
Under Justice Hassan's reasoning, then, the claim did fit within the TCPA first prong, as being related to the exercise of Striever's free speech; and then matters should have proceeded to the second prong, where Sanchez would have to prove that he had a good assault claim. As I read her opinion, she thinks Sanchez would have been able to prove that, and (if his lawyer had argued properly in trial court) Striever's TCPA defense would fail. But she concluded that in fact at the trial court Sanchez had "declined to even attempt to meet his burden imposed by the second prong of the statute," so because of that Striever should have prevailed in this particular situation.
