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.

NEXT: Why is UC Press Taking an Explicit Political/Ideological Position on the Conflict Between Israel and the Palestinians?

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  1. I get the idea and the general need for blanket immunity for statements made as part of judicial proceedings. That we protect even manifestly false and obvious false statements, in order to avoid the slippery-slope of making someone decide just how ridiculous a false statement has to be before stripping away protections.
    But it's pretty easy to come up with hypos that show the potential unfairness. Say I'm going to traffic court, to fight a speeding ticket.
    Q: Why were you speeding?
    A: Well, I was on the way to my car dealership, and I kept thinking, and worrying, about Mr John Smith [who owns the only other dealership in town and who is my bitter business rival] because he rapes many of his female customers--giving them herpes in the process--and because he deliberately installs faulty brakes on many of the used cars that he sells."

    Now, normally, of course, I'd be sued up the wazoo for making intentionally-false statements of fact, and especially because these should fall into the "per se" categories. But, since I am definitely saying them as part of a judicial proceeding, I gather that I'm bulletproof. No civil liability at all for me, yes? Given this, I would have to believe that if reporter Susan Jones is in the courtroom, she can safely file a story in the newspaper or online saying, "A shocking allegation in court today, as local businessman John Smith was accused of rape, infecting others with STDs, and dangerous & unethical business practices, by someone who was in court to fight a traffic ticket."

    Could a reporter be sued for (perfectly-accurately) reporting the truthful story that someone alleged in open court all these horrible (false!!) allegations? I don't think this reporter can be...but I'm not a First Amendment lawyer, so I dunno.

    [I do recognize this is a bit of a stretch and a bit of a thread-jack...sorry about that.] I think that reporters have a duty certainly to investigate whether or not this allegation had really been made, and made in court. (If no reporter had been present at the time, for example.) But once those allegations were said in court, I think it has to be fine to truthfully report about that allegation. I mean, I have seen literally hundreds of news reports (print, online, radio, and TV) about Trump giving his Big Lie about his shellacking in the election. Trump said it (and repeated it) and reporters reported it--even though it was obviously a lie, was batshit crazy, and even though no normal human being would ever be stupid enough to believe Trump's BS. No one is talking about being able to sue all these reporters (newspapers, TV stations, etc), just because they truthfully relayed someone saying manifestly untrue things.

    Okay, I'm really did head off-topic of the OP, I guess. 🙁

    1. santamonica811, if this be off-topic, then make the most of it. Your "bit of a stretch," example does not stretch far enough. Reality stretches farther.

      I am aware of a case where a group of former employees sued a newspaper publisher in a state administrative court, for a breach of contract involving wages. At the hearing, the former employer defended itself by saying, falsely, that one of the former employees who had charge of the books had managed them dishonestly, and stolen money. The employer implied, without quite saying explicitly, that its acknowledged refusal to pay wages had to do with missing funds. The former employer lost the case, but did not pay.

      In fact, the former employer had hired an accountant to review the books and discover evidence for the employer's intended charge of dishonest book keeping. The accountant had done the review, and reported the books were in perfect order, and nothing at all was amiss with the finances.

      Of course, the disappointed employer made no mention of the accountant's report, before libeling the former employee in court. After the hearing, the former employer published a report of its own false testimony, repeating the charge of dishonestly managed books as quoted testimony. Sued for libel, it claimed protection because it was publishing court testimony—which is to say, its own deliberately false testimony.

      A libel case was filed, but dropped as part of a settlement, in which the the former employer agreed to pay all the claimed wages to the former employees. So the question whether a publisher who is party to court proceedings, and libels its opponent in court—with intention to transform into a sword the court-proceedings shield—and thus subsequently to libel in print with impunity the in-court opponent, never got a hearing.

      The key part of this case I happened to learn from the accountant, who told me about it years afterward.

    2. Wouldn't the reporter have to attribute, i.e. identify who had said it in court?

      1. And wouldn't all this be either unsupported assertions (sabotaging their case in the eyes of the judge) or perjury? You can't just say "this man is a criminal" without evidence, and you can't produce evidence without fabrication.

        1. Ben,
          Yes, these are unsupported assertions. I've sat as a (volunteer) judge on hundreds of Traffic Court (and Small Claims Court) cases. You would NOT believe some of the wacky allegations I have heard, as excuses, justifications, explanations, mitigations, etc..

          My intended point, earlier, was: Telling lies about Person X will not help you, say, get out of your traffic ticket. But you get to say things in court (or in depos, etc) that would subject you to libel and slander lawsuits if said out in the real world. AND...reporters can--I think--be perfectly free to repeat these allegations, regardless of their truth.

          Ed, I think that a good journalist would specify who made the allegation. But I don't think that's a legal requirement...merely a better quality of journalism. (I'm not a journalist, so I'm perfectly happy to defer to someone with actual firsthand knowledge on this.)

          1. " I think that a good journalist would specify who made the allegation. But I don’t think that’s a legal requirement…merely a better qua]lity of journalism."

            Depends. Recall that truth is a complete defense to defamation. So, if Ed makes a wild, unsupported claim [X] in court and then if I report "In court today, a man named Ed said [X]" and someone tries to sue me because [X] is defamatory, I would have a defense that I did not claim that [X] was true, I claimed that Ed said [X], which IS true. Some states shortcut this mechanism, by providing a "fair reporting immunity" for news coverage of public trials.

            1. Of course, the notion that Ed made a wild, unsupported, defamatory statement is purely hypothetical. The claim that Ed is prone to making wild, unsupported statements is itself a wild, unsupported statement.
              Unless you read his comments.

    3. That we protect even manifestly false and obvious false statements

      I always saw it as:

      Lawyer: "Outrageous statement."

      "Oh, yeah? I'll see you in court!"

      Lawyer: Yes, that is my point.

    4. There are other ways to sanction false statements made in court than a libel suit over said statements. Other ways to which immunities and privileges would not apply.

      The kind of legal process immunity at issue here would not apply against either civil or criminal perjury charges for false statements made under oath.

    5. " no normal human being would ever be stupid enough to believe Trump’s BS. No one is talking about being able to sue all these reporters (newspapers, TV stations, etc), just because they truthfully relayed someone saying manifestly untrue things."

      Before he was elected (that one time he WAS elected) President, he started talking about how he was going to have to "fix" the defamation laws, so that when newspapers and TV reporters said bad things about him, he could sue them and win damages.
      Throw that on top of the big pile of things he really wished he could do, that it turns out he was incapable of accomplishing.

      1. James,
        As I have posted over the years in prior threads: Donald Trump has almost no bedrock principles. He's not the least bit religious, but was fine pretending to be, to curry favor with Evangelicals. He was pro-choice for years and years and years and years...until he wanted to run as a Republican, and so he did a 180 flip on this issue. Same for guns, gay rights, etc etc. That merely makes him a politician.

        The only principle I heard Trump talk about for literally decades, and always remain 100% consistent on, is the issue you mentioned: Trump REALLY wanted (and wants) to change the existing First Amendment laws, so that it's easier to sue people who say mean things about him. I absolutely give him credit for his consistency here. (Although I give him no credit on the merits, as I think his suggested changes would be bad for our overall free speech rights.)

        1. The fact that Trump wanted to do something about defamation law, whether he honestly and sincerely wanted them or just claimed to want them for political purposes, don't matter. He had no talent or skill in actually getting anything done.

          Trump wanted to be King, but since he wasn't elected King, he didn't get to have the kind of sovereign power he imagined for himself. Just as well, he wouldn't have liked what history recorded about his reign.

  2. Great; now do politicians and reporters.
    I'll hold your beer.

    1. Well, the Texas Legislature "did" reporters -- it provided that they are entitled to the fair report privilege when they publish fair and true accounts of judicial proceedings. As to politicians, they have their own privileges secured by the Speech and Debate Clause at the federal level and similar clauses at state levels, together with various official-duty privileges.

  3. I think part of the issue here is that they were not talking about a suit, they were talking about intent to sue without having filed any paperwork in court. Making all kinds of media stink about it before having an actual case filed about it does seem a bit like an attempt at slander since there's no guarantee that they'll actually file the paperwork.

    1. Not exactly. They were talking about an actual suit. What the defendants published was a pre-suit notice letter, which is required by statute to be served on the potential defendant and the Secretary of the Interior prior to filing a citizens suit under the Endangered Species Act. The Texas Supreme Court recognized that the pre-suit notice letter was covered by judicial proceedings privilege, just as the lawsuit itself would be. But they held that the publication of the letter was not covered.

      The result would have been the same had the ALDF waited until filing suit and published the complaint itself rather than the pre-suit notice. This is a pretty big change in Texas law. Most Texas courts of appeals had held that the judicial proceedings privilege applied to out-of-court statements concerning the lawsuit.

  4. Now if only they would extend this to cover prosecutors holding press conferences.

    1. I thought that was already outside of absolute immunity, but a probable cause finding gives cover from defamation law.

      At least the gratuitous "perp walk" got banned.

  5. I don't know, this seems fair to me. As a prosecutor, I have absolute immunity from any my actions in the course of my role as prosecutor. But if I step outside that role to act, say, in a police role, then I lose that special privilege and have qualified immunity like any other police officer. The immunity doesn't attach to me because I'm some super special person. It attaches to my role. When I'm not acting within the confines of that particular role, even if it's something that is related but not quite there, I don't get the immunity. Why should the lawyer get immunity for a press release that anyone could make? Why does he get to shield his client from consequences by saying "Hey, don't make that press release, you'll get sued for libel. I'll say the exact same thing and there will be no consequences."

    Immunity attaches to the role. Issuing a press release isn't the role.

    1. not so. At least in some states. See Matson v. Margiotti in PA. Apparently they have unlimited privilege.

  6. For those curious, there is nearly absolute immunity for statements related to a judicial proceeding, under both state and federal law, under a variety of doctrines (Noerr-Pennington, Litigation Privilege, Judicial Proceeding Privilege, etc.).

    For those of you who wonder about why, the simple answer is that we try to avoid "meta-litigation." In other words, for the most part, we have numerous rules in place to keep people from litigating about litigation. Even torts regarding litigation (abuse of process, malicious prosecution, etc ... I think there is a jurisdiction that recognizes malicious defense) are notoriously difficult to bring and subject to numerous barriers.

    Simply put, litigation is contentious. The last thing we want happening, in general, is for people to start litigating about the litigation. While there might be individual cases where you think to yourself, "Man, that's terrible," the general rule protects societal resources. At some point, litigation has to end.

    1. "The last thing we want happening, in general, is for people to start litigating about the litigation."

      Of course "we" might not include those with a financial incentive for there to be more litigation. (c:

  7. Well, let's take the Jesse Smollett case for a clear example of why this accusation makes sense. After it was found out that the men who attacked Jesse Smollett were the Osundairo brothers and not a group of racist white Trump supporters, Smollett's attorney went to the press. The attorney claimed that the brothers were not hired by Jesse to stage an attack like they had alleged, but that they had dressed in whiteface and implied that one of the men was Smollett's lover.

    Claiming something in court is one thing. However, publicly spreading known falsehoods in the press is another.

    On the other hand, in court, lawyers are limited by rules of perjury. Making absurd claims in a closing argument is one thing, but you can't support anything with false evidence or ask a question that you know will be lied to.

    pS: Yes, the aquarium still has the tiger exhibit. I don't know why, but the Houston aquarium has a devoted a lot of its space to land animals and a full carnival rather than fish. In fact, they omit any large sea creatures in order to have more room for what my daughter lovingly called "giant kitties".

    1. I can see aquariums and zoos being co-mingled -- seal, penguin, & polar bears are all "zoo" animals that require significant aquatic resources. See:

      Conversely, aquariums with large sea creatures require vast volumes of salt water which most pump from the adjacent ocean and then return -- they usually are located immediately adjacent to the shore. Saline content is critical, you can't have brackish water.

      Where is the Houston Aquarium? How clean & salty is the water off Houston?

      1. The aquarium is in the middle of downtown. All nearby water is freshwater. The zoo has a bigger aquarium, and the Galveston aquariums are much bigger. The downtown Houston Aquarium is more of an event area and theme park than a normal educational aquarium.

  8. (Massachusetts SJC) Justice Holmes had a case about libelers laundering their defamatory statements through court pleadings:

    Cowley v. Pulsifer, 137 Mass. 392, 393 (1884) (Holmes, J.) (denying
    privilege where newspaper published report of complaint before
    it was docketed).

    1. Short discussion of the issue here (search for judicial action):

  9. " Four white Bengal tigers live at the aquarium. [Wait, why at an aquarium? -EV]"

    Unlike housecats, tigers like to swim.

    1. I saw tigers in India (in game parks). Tigers not only like to swim; they are seriously good and fast swimmers...Iike 10-foot-long Labradors hopped up on steroids.

      The game park guides were not concerned about the possibility of tigers swimming up to our boats and eating us. We who were on the tours, however, sure were.

      1. Shere Khan is the villain of the Jungle Book for a reason.

  10. Good ruling

    IMAO that should be the law in every State

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