Anti-SLAPP Can Penalize Commercial Speech

By Robert Tobey

Since the Texas Citizens Participation Act (also known as the “Anti-SLAPP” statute) was enacted, there have been many cases deciding both the elements of the statute and the commercial speech exemption. On April 24, 2015, the Texas Supreme Court issued opinions on two important issues.

In re Steve Lipsky, 2015 Tex. LEXIS 350 (Tex. April 24, 2015) held that circumstantial evidence could be considered in satisfying the plaintiff’s burden to prove with clear and specific evidence every element of his or her prima facie case. The ruling resolves a split of authority on this issue in the courts of appeals. In this case, Steven and Shyla Lipsky owned several acres in Weatherford Texas. They drilled a well on their property to a depth of about 200 feet to provide water to a cabin and boathouse. They also built a house on the property and connected the well to their new home. That same year, Range Resources Corporation drilled two gas wells about a half mile from the Lipskys’ property.

A few months after moving into their new home, the Lipskys experienced mechanical problems with their well. The problem was identified as “gas locking,” a condition typically associated with an excess of natural gas in the groundwater. Concerned about the presence of gas in their well water, the Lipskys contacted local health officials who referred them to Alisa Rich, an environmental consultant with Wolf Eagle Environmental. Ms. Rich confirmed the presence of methane and other gases in the well.

Lipsky then made a video of himself lighting gas escaping from a garden hose attached to his well. He shared his video with the Environmental Protection Agency and the media, which reported on the flammable nature of the Lipskys’ water well. He also complained about the gas in his well to the Texas Railroad Commission. Lipsky believed that Range, the oil and gas operator, had some responsibility for contaminating his groundwater.

After investigations by the EPA and the Railroad Commission, the Lipskys sued Range and others involved in developing their residential area. Range filed a counterclaim against the Lipskys and a third-party claim against Rich alleging defamation, business disparagement and a civil conspiracy. The Lipskys and Rich responded by moving to dismiss Range’s counter attack as an improper attempt to suppress their First Amendment rights guaranteed under the Constitution and protected by the TCPA.

The trial court granted Range’s motion to dismiss, agreeing that the Lipskys’ claims were an improper collateral attack on the Railroad Commission’s determination. The court also declined to dismiss Range’s claims against the Lipskys and Rich by denying their motions to dismiss under the TCPA. The court of appeals held that the TCPA required the dismissal of Range’s claims against Lipsky’s wife, Shyla, and Rich. The court further determined that the TCPA did not require dismissal of all of Range’s claims against Steven Lipsky.

The Supreme Court considered whether Range met its burden of establishing by clear and specific evidence a prima facie case for each essential element of the claim in question. Some courts of appeals interpreted the statute to require a heightened evidentiary standard unaided by inferences. The Supreme Court rejected these holdings reasoning that the TCPA does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, the TCPA does not impose a higher burden of proof than the one required of the plaintiff at trial.

In reviewing the evidence presented, the Supreme Court affirmed the holding of the court of appeals. It found that Range presented sufficient evidence to show a prima facie case of defamation against Lipsky. Range, however, did not introduce clear and specific evidence establishing a prima facie case for defamation against either Shyla Lipsky or Rich. As a result, these claims were properly dismissed by the court of appeals.

In Lippincott v. Whisenhunt, 2015 Tex. LEXIS 347 (Tex. April 24, 2015), the Texas Supreme Court held that the TCPA applies to communications involving a public subject even if they are not made in a public forum. Here, Greg Parks and Matthew Lippincott, administrators at First Surgery Suites, LLC allegedly made disparaging comments about Whisenhunt, a certified registered nurse anesthetist who contracted to provide anesthesiology services for First Surgery’s patients. As proof of these disparaging comments, Whisenhunt included copies of several emails sent by Lippincott to four recipients summarizing reports Lippincott claimed to have received and, in some instances, investigated about Whisenhunt. The reports alleged that Whisenhunt represented himself to be a doctor, endangered patients for his own financial gain, and sexually harassed employees.

Whisenhunt sued Lippincott and Parks for defamation, tortious interference with existing and prospective business relations, and conspiracy to interfere with business relations. Lippincott and Parks moved to dismiss based on the TCPA. The trial court granted the motion to dismiss in part and denied it in part, concluding that Whisenhunt met the minimum threshold to proceed with the defamation claim but failed to provide sufficient evidence to proceed with the other claims. The court of appeals reversed and remanded concluding that because the Act does not apply to private communications, it was inapplicable to this case.

The Texas Supreme Court reversed the holding of the court of appeals. The Supreme Court held that the plain language of the statute imposes no requirement that the form of communication be public. In the absence of limiting language, the Supreme Court must presume that the Legislature broadly included both public and private communication in the TCPA. The Supreme Court also found that the emails were a matter of public concern, because the provision of medical services by a health care professional constitutes a matter of public concern. The Supreme Court remanded the case to the court of appeals to determine whether Whisenhunt met the prima facie burden the Act requires in light of the Supreme Court’s decision in the Lipsky case.