Calling Abortion Groups "Criminal Organizations" = Constitutionally Protected Opinion, Even When Abortion Was Legal

From Lilith Fund for Reproductive Equity v. Dickson, decided yesterday by the Texas Supreme Court, in an opinion by Justice Jane Bland:

In these companion cases, advocacy groups supporting legalized abortion have sued an opponent of it, claiming that he legally defamed them by making statements that equate abortion to murder and by characterizing those who provide or assist in providing abortion, including the plaintiffs, as "criminal" based on that conduct. The speaker responded that his statements represent his opinion about that conduct as part of his advocacy for changes in the law and its interpretation. {The events giving rise to these two lawsuits occurred in the years preceding the United States Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022).}

Two courts of appeals considered whether the speaker's statements could be defamatory and reached opposite conclusions. One court of appeals placed the statements in the context of the ongoing moral, political, and legal debate about abortion. It concluded that the statements are political opinions that voice disagreement with the legal protections afforded to abortion providers. That court of appeals ordered the suit dismissed.

The other court of appeals examined whether a court could legally verify the speaker's statements—in other words, it asked whether abortion met the legal definition of murder under the Texas Penal Code at the time. Concluding that the speaker's statements were inconsistent with the Penal Code, that court of appeals permitted the defamation suit to continue.

We granted review to resolve the conflict between the two courts. We hold that the challenged statements are protected opinion about abortion law made in pursuit of changing that law, placing them at the heart of protected speech under the United States and Texas Constitutions. Such opinions are constitutionally protected even when the speaker applies them to specific advocacy groups that support abortion rights….

An examination of the statements and their context shows no abuse of the constitutional right to freely speak. The speaker did not urge or threaten violence, nor did he misrepresent the underlying conduct in expressing his opinions about it. Either potentially could have removed his constitutional protections….

A reasonable person is … aware that the primary argument espoused against legalized abortion is that abortion is an unjust killing of human life—that it is, in essence, murder. Equally apparent is that such statements reflect an opinion about morality, society, and the law.

Opinions that an unjust killing is tantamount to murder are not limited to the abortion debate. Opposition to war is often expressed as an objection to murder. {Actor Sean Penn attracted notoriety for accusing a presidential administration of "deceiving the American people into a situation that is murdering young men and women from this country and others" and calling for the president and his cabinet to be imprisoned. Antiwar protesters Code Pink charge that drone strikes against Al-Shabaab militants in Somalia are "murder."} Opponents of capital punishment characterize it as "state-sanctioned murder." Vegetarian advocates chant that "meat is murder." The animal-rights advocacy group People for the Ethical Treatment of Animals equates wearing fur clothing to murder. This historical background of debate on controversial subjects, including abortion, provides important context to a reasonable reader of the statements challenged in this case.

An ordinary reader gleans additional context by reading the full text of Dickson's Facebook statements and the responses to them. As the statements themselves make clear, Dickson was engaged in a campaign to pass ordinances similar to the Waskom Ordinance [which declared abortion to be murder] in other towns. He used his Facebook page and that of Right to Life East Texas to inform, persuade, and encourage his supporters. His activities attracted counter-lobbying efforts from groups that support legalized abortion.

The challenged statements were a part of this campaign. Some recite the Waskom Ordinance or reference its effect. Several posts include links to petitions and advocacy hashtags. Other posts engage with the plaintiffs' and others' responsive speech favoring legalized abortion. As the responding comments show, the collective impression is not that Dickson was disseminating facts about particular conduct, but rather advocacy and opinion responding to that conduct. Dickson invited the reasonable reader to take political action.

The tone and language Dickson employs is exhortatory, not factual: "If you want to see your city pass an enforceable ordinance outlawing abortion be sure to sign the online petition"; "Stand strong leaders of Big Spring. You are going to be on the right side of history"; "[W]e need to be battling these battles on the home front of our cities." … [T]he language used clues the reader that Dickson's purpose is advocacy, not the dissemination of facts….

Dickson describes the plaintiffs as "criminal organizations" in connection with the Waskom Ordinance and based on the plaintiffs' support of legalized abortion. In one statement, Dickson quotes the Ordinance, then paraphrases that "[a]ll organizations that perform abortions and assist others in obtaining abortions (including … The Afiya Center, The Lilith Fund for Reproductive Equality [sic] … Texas Equal Access Fund, and others like them) are now declared to be criminal organizations in Waskom, Texas." The plaintiffs do not contend that Dickson misrepresented the contents of the Ordinance. Rather, the Lilith Fund argues that the Ordinance "was part of the defamation, not merely context for it" because Dickson assisted in drafting the Ordinance and lobbied for its passage.

The Lilith Fund cites no authority in support of its argument that a speaker who republishes the contents of a city ordinance may be held liable for defamation based on the content of the ordinance. To the extent that Dickson could be liable, however, we observe that his recitation of the Ordinance was made in the same context as his other statements, as part of his overall campaign to advocate for changes to abortion laws. His statements about the Ordinance are no different in context than the other challenged statements.

In another statement, Dickson describes the effect of the Ordinance as "treat[ing] groups like … the Lilith Fund as criminal organizations." Dickson's prediction as to the Ordinance's legal effect—however forcefully couched—was pure opinion. Whether the Ordinance constitutionally or effectively criminalizes particular actions is not before the Court. Whether Dickson is right or wrong about the Ordinance's effectiveness, the statement is not a false statement about the plaintiffs' conduct.

In another post responding to the "abortion is freedom" billboards, Dickson also identifies one of the plaintiffs as listed as a criminal organization in Waskom:

The Lilith Fund and NARAL Pro-Choice Texas are advocates for abortion, and since abortion is the murder of innocent life, this makes these organizations advocates for the murder of those innocent lives. This is why the Lilith Fund and NARAL Pro-Choice Texas are listed as criminal organizations in Waskom, Texas. They exist to help pregnant Mothers murder their babies.

A reasonable person, equipped with the national, historical, and temporal context, and informed by the overall exhortative nature of his posts, could not understand Dickson as conveying false information about the plaintiffs' underlying conduct, as opposed to his opinion about the legality and morality of that conduct. A reasonable person would understand that Dickson is advancing longstanding arguments against legalized abortion, in the context of an ongoing campaign to criminalize abortion, on public-discourse sites regularly used for such advocacy….

[Dickson] does not falsely claim that the plaintiffs have been arrested or prosecuted, or otherwise indicate to the reasonable person that the plaintiffs have been convicted of crimes based on specific conduct. To the contrary, Dickson invokes a moral premise, calling for his readers to change existing law to match that moral premise. In one of his comments, Dickson compares Roe v. Wade to the Supreme Court's long-repudiated endorsement of slavery. Dickson's analogy demonstrates that abortion's criminalization is his goal, in contrast to then-existing Supreme Court precedent….

Seems quite correct to me; see, e.g., Greenbelt Coop. Pub. Ass'n v. Bresler (1970) (saying developer's position was "blackmail" was, in context, an opinion); Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin (1974) (saying strikebreakers were "traitor[s]" was, in context, an opinion). Of course, the result would be the same if someone called anti-abortion organizations "enslavers," or, as the court suggests, if someone called supporters of wars or of the death penalty or of lethal self-defense or of eating animals "murderers." What surprised me was that one lower appellate court had disagreed (see here for that opinion).

Congratulations to Thomas Brejcha & Martin Whittaker (Thomas More Society) and Jonathan Mitchell (Mitchell Law PLLC), who represent Dickson.