The Volokh Conspiracy

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Free Speech

Beto O'Rourke Wins Appeal in Libel Case


From O'Rourke v. Warren, decided yesterday by the Texas Court of Appeals (Austin), Chief Justice Darlene Byrne, joined by Justices Gisela Triana and Edward Smith:

In the underlying proceeding, appellee Kelcy Warren sued appellant Robert Francis O'Rourke for defamation, alleging that O'Rourke legally defamed him by making statements during O'Rourke's gubernatorial campaign that equated Warren's political donations to Governor Greg Abbott with crimes. O'Rourke responded that the statements were not about Warren, and insofar as they mention Warren, were opinions that colloquially used the terms "bribery" and "corruption" consistent with the sharp language used in political campaigns….

The trial court allowed the case to go forward, but the Court of Appeals disagreed:

We hold that an examination of the statements and their context from the position of a reasonable person shows they are non-actionable opinions and fall within the bounds of protected speech….

For more details, see the opinion; here's a brief excerpt:

All of the statements in question were made during a political campaign—many of them at campaign rallies—and clue the reader that O'Rourke's purpose "is advocacy, not the dissemination of facts." Many of the communications do use "vehement, caustic, and sometimes unpleasantly sharp attacks" that often arise in political debates. But reasonable readers would understand that claims about a political opponent being corrupt or being beholden to campaign contributors or special interests are just the type of "rhetorical hyperbole" that is commonplace and expected during contentious political campaigns. Given the political and temporal context, a reasonable person could not understand O'Rourke as conveying verifiable facts about the legality of Warren's political donation. Rather, they would understand that the gist of O'Rourke's statements—even when using sharp language such as "corrupt" and "like a bribe"—as reiterating his political advocacy that he would be a better governor, couched in the oft-repeated argument that one's political opponent is beholden to their campaign contributors….

A reasonable person would understand such statements not as asserting that Warren had engaged in criminal conduct, but instead as attacking a political opponent with just the type of rhetorical hyperbole that is commonplace in political campaigns….

Just like the pro-life campaigner sued in Lilith Fund [for calling abortion groups, before Dobbs, "criminal organizations" -EV], O'Rourke did not refer "to the Penal Code nor to any Texas criminal law" when making his statements that mentioned Warren. And while the pro-life campaigner's statements unequivocally ascribed criminality to the plaintiffs without any qualifiers or clear demarcation that he was expressing an opinion, O'Rourke clearly qualified his statements as his subjective, personal belief on a political issue—that the donation "looks a lot like a bribe to me," or "[t]hat's pretty close to a bribe, by any definition I'm familiar with." Similarly, just as the statements made by the speaker in Lilith Fund were understood as opinions in part because they "advance[d] longstanding arguments" on a controversial political issue, so too must O'Rourke's statements be understood and considered in light of the long-running political debate about the influence (undue or otherwise) of money in politics and the oft-repeated political arguments maligning opponents for being beholden to their campaign contributors….

Accordingly, even if Lilith Fund marks the outer boundary of statements not considered defamatory, the statements made by O'Rourke fall well short of crossing the Rubicon into defamatory utterances. The fact that these opinions arose during the course of a political campaign as part of political speech advocating for a candidate only further cautions against interpreting them as anything other than non-defamatory advocacy by O'Rourke in support of his political aspirations.

{Warren also references a March 12, 2022 statement by O'Rourke at a SXSW panel where O'Rourke referred to Governor Abbott as a "thug" and "authoritarian" and referred to Warren as an "oligarch." Those statements, however, amount "to little more than name calling" and are not clear and specific evidence of anything more than an expression of opinion that Warren finds objectionable.}

Congratulations to Chad W. Dunn & K. Scott Brazil (Brazil & Dunn), Joseph E. Sandler (Sandler, Reiff, Lamb, Rosenstein & Birkenstock PC), and Sarah Holley Long (Walters Balido & Crain, LLP), who represent O'Rourke.