The Volokh Conspiracy

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Texas Lawyers Can Be Sued for Libel for Press Releases About Complaints,

even if the press release accurately summarizes the Complaint; the rule is different in some states, such as California.


From Friday's Texas Supreme Court decision in Landry's v. Animal Legal Defense Fund, written by Justice James D. Blacklock:

An attorney who repeats his client's allegations to the media or the public for publicity purposes is not acting in the unique, lawyerly capacity to which Texas law affords the strong protection of immunity. Although attorneys often make publicity statements for their clients, wrapping these statements in an absolute privilege would unreasonably shield attorneys from liability for defamatory statements that would be actionable if uttered by anyone other than an attorney. Attorneys who make such statements outside a judicial proceeding have many potential defenses to defamation liability, but the judicial-proceedings privilege and attorney immunity are not among them. The judgment of the court of appeals is reversed in part and affirmed in part, and the case is remanded to the court of appeals for further proceedings.

Landry's, Inc. owns Houston Aquarium, Inc., which operates the Downtown Aquarium in Houston. Four white Bengal tigers live at the aquarium. [Wait, why at an aquarium? -EV] In March 2015, Cheryl Conley, a radio station owner, asked Landry's for a behind-the-scenes tour of the tiger habitat. Landry's obliged, allowing Conley to photograph the tigers and their environs. Landry's also answered her questions about the animals. Conley did not run a story about the tigers on her radio station or elsewhere.

In October 2015, Conley contacted the Animal Legal Defense Fund ("ALDF") about the tigers…. On September 19, 2016, Carney Anne Nasser, an attorney at ALDF, together with an attorney from Irvine & Conner PLLC, sent Landry's a 60-day notice of intended suit … pursuant to the Endangered Species Act ("ESA"). The Notice Letter informed Landry's that ALDF and Conley "inten[ded] to sue" Landry's using the ESA's citizen-suit provision. The letter alleged that Landry's tiger facilities violated the ESA and violated portions of the "Tiger Care Manual" produced by the Association of Zoos and Aquariums….

The same day, ALDF posted a press release on its website describing its service of the Notice Letter and criticizing the tigers' conditions. A link directed readers to the Notice Letter. ALDF also sent the Notice Letter and a copy of the press release to the Houston Chronicle and to ABC-Denver7, a TV station in Denver, where Landry's owns another tiger exhibit. ABC-Denver7 posted an article about the threatened suit: "Downtown Aquarium owners, Landry's, facing possible lawsuit over tigers at Houston location." The Houston Chronicle likewise ran a story about the allegations: "Animal rights group threatens to sue Landry's over tigers at Downtown Aquarium." A website called The Dodo also posted an article: "White Tigers Stuck In Aquarium Haven't Felt The Sun In 12 Years." During the ten days following the Notice Letter, ALDF made five Facebook posts regarding the tigers, and both Nasser and ALDF's executive director, Stephen Wells, tweeted about the tigers….

Landry's sued for libel and related torts, and the Texas Supreme Court held:

The "judicial-proceedings privilege" and "attorney immunity" are "independent [defenses] serving independent purposes." The judicial-proceedings privilege is straightforward: "Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made." …

The judicial-proceedings privilege is an absolute privilege that covers "any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case." The privilege facilitates the proper administration of justice by promoting "full and free disclosure of information … by participants in judicial proceedings."

Although the judicial-proceedings privilege traditionally applies to "statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case," it can also include statements made "preliminary to a proposed judicial proceeding," …

Attorney immunity "is an independent [defense] serving [an] independent purpose[]."It is not merely the lawyer's version of the judicial-proceedings privilege, although there is considerable overlap. Attorney immunity is a "comprehensive affirmative defense protecting attorneys from liability to non-clients." It stems from the law's longstanding recognition that "attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages." Attorney immunity is "intended to ensure 'loyal, faithful, and aggressive representation by attorneys employed as advocates.'" … Not just any action taken when representing a client qualifies for immunity, however. Instead, attorney immunity generally applies when attorneys act in the uniquely lawyerly capacity of one who possesses "the office, professional training, skill, and authority of an attorney." …

"The privilege accorded a litigant which exempts him from liability for damages caused by false charges made in his pleadings, or in the court in the course of a judicial proceeding, cannot be enlarged into a license to go about in the community and make false and slanderous charges against his court adversary and escape liability for damages caused by such charges on the ground that he had made similar charges in his court pleadings."

The judicial-proceedings privilege exists to facilitate the proper administration of the justice system. It does so by relieving the participants in the judicial process from fear of retaliatory lawsuits for statements they make in connection with the proceeding itself. Statements to the media, by definition, are not made within a judicial proceeding. They are not directed to the court or the opposing party, and they play no formal role in the adjudicatory process…. Even in the pre-suit context, … the privilege protects communications that are themselves preparatory to the lawsuit. The requirement that the statement must bear "some relation to a proceeding" cannot be stretched so far as to include publicity statements that merely address the same subject matter as the suit but serve no purpose within the suit. The statement itself must bear "some relation to a proceeding." It is not enough that the statement's subject matter bears such a relation.

Press statements often serve an important function for the party issuing them and for the public, but they are in no way part of a judicial proceeding or preparatory to one in any formal sense. Although accurate public knowledge of what is happening in the court system is surely of great value, that value is protected by many defenses available in defamation law and ultimately by the First Amendment. The judicial-proceedings privilege, on the other hand, does not exist to promote publicity or public awareness outside the courtroom. Its purpose is to facilitate open and vigorous litigation of matters inside the courtroom. {For the same reason that the privilege does not protect statements to the media, "applying the privilege to [a party's] emails and Facebook posts would not serve the underlying purpose of the judicial-proceedings privilege[.]"}

We agree with the court of appeals that the delivery of the Notice Letter to Landry's and the Secretary of the Interior is protected by the judicial-proceedings privilege because it was "necessary to set the judicial machinery in motion." But the delivery of the Notice Letter itself is not at issue. The dissemination of the letter to the media along with a press release—and the defendants' other republications of their allegations for publicity purposes—are the source of Landry's complaint. As explained above, the defendants lost the judicial-proceedings privilege's protections when they repeated the Notice Letter's allegations for publicity purposes "outside the protected context within which the statements originally were made."

Our understanding of the limits of the judicial-proceedings privilege is consistent with the weight of authority outside Texas…. {[An amicus] points out that some states apply a "fair-notice privilege" to protect some statements attorneys make to the media. The amicus asks us to provide similar protections using the judicial-proceedings privilege. Texas's fair-notice privilege is a creature of statute, however, and the legislature has not seen fit to extend it to an attorney's statements to the media. [The court cites the Texas fair report privilege, which covers accounts in a "newspaper or other periodical" of judicial proceedings. -EV] … The majority rule in American jurisdictions is that neither the judicial-proceedings privilege nor attorney immunity applies to publicity statements made outside the proceeding. The legislatively chosen contours of Texas's fair-notice privilege do not affect our analysis of the judicial-proceedings privilege or attorney immunity.} …

In addition to the judicial-proceedings privilege, ALDF and Nasser also argue that attorney immunity bars Landry's claims. As explained above, attorney immunity attaches when attorneys act on behalf of their clients in the uniquely lawyerly capacity of one who possesses "the office, professional training, skill, and authority of an attorney." While the judicial-proceedings privilege applies specifically to liability for spoken or written words, the protections of attorney immunity apply more broadly to include "actions" and "conduct" engaged in by attorneys for their clients pursuant to the attorney's "office, professional training, skill, and authority."

The Notice Letter itself is the product of lawyerly work for a client involving "the office, professional training, skill, and authority of an attorney." Landry's did not sue the defendants for delivering the Notice Letter to the required entities, however. Landry's sued the defendants for their publicity statements to the press and on social media.

Such statements, while sometimes made by lawyers, do not partake of "the office, professional training, skill, and authority of an attorney." Anyone—including press agents, spokespersons, or someone with no particular training or authority at all—can publicize a client's allegations to the media, and they commonly do so without the protection of immunity. While lawyers can also make such statements, attorney immunity does not apply to an activity simply because attorneys often engage in that activity. Nor does it apply, as the court of appeals suggested, any time an attorney "conclude[s] that publicity would further the representation." …

Likewise, attorney immunity does not protect Nasser or ALDF's social media activity. Tweets and Facebook posts publicizing a client's allegations are not the actions of lawyers acting in the lawyerly capacity to which immunity attaches. Such activity may advance a client's publicity goals, but it has little to do with "the office, professional training, skill, and authority of an attorney." Nor is it "part of the discharge" of a "lawyer's duties in representing his or her client." …

In some states, such as my own California, the fair report privilege does cover a lawyer's (or anyone else's) press release about a complaint filed in court, so long as the press release is a "fair and true report" of the allegations in the complaint. But apparently not in Texas.