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When is Speech a “Bodily Injury” Which is Exempted Under the Texas Anti-Slapp Law

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.

Anti-Slapp in Texas

Kirkstall Road Enterprises, Inc. v. Jones, 05-16-00859-CV. (Tex. App. – Dallas April 27, 2017) dealt with the question of the bodily injury exclusion in an Anti-Slapp or TCPA case.

Kirkstall was the producer of a television series called The First 48 which features homicide detectives investigating murder cases. The episode in question showed Jones with his appearance blurred and his voice altered. After the episode, Jones received many death threats and eventually was shot 4 times.

On February 16, 2016, Mr. Jones filed a claim for negligence against Kirkstall, arguing Kirkstall owed a duty to exercise reasonable care in the editing, production, and release of Mr. Jones’s image, likeness, or voice on national television in such a way that his identity was not discernible, and breached that duty by failing to do so and by portraying him as a voluntary informant. Kirkstall filed a motion to dismiss Mr. Jones’s claim pursuant to the TCPA. Mr. Jones responded that an exemption to the TCPA applied to his claim, that Kirkstall was not exercising First Amendment rights as defined by the TCPA, and alternatively, he provided clear and specific evidence to establish each essential element of his negligence claim.

After reviewing the facts and the Texas Anti-Slapp or TCPA law, the appeals court agreed with Jones.

Assuming without deciding that Kirkstall met its initial burden to show Mr. Jones’s negligence claim is based on, relates to, or is in response to Kirkstall’s exercise of the right of free speech or to petition, we conclude that Mr. Jones satisfied his burden to prove his claim falls within the plain language of the bodily injury exemption to the application of the TCPA. Section 27.010(c) provides the TCPA “does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.” CIV. PRAC. & REM. § 27.010(c).

Kirkstall argued that the bodily injury exception was intended to apply only to non-speech based personal injury claims and was not intended to apply to protected speech.

Kirkstall further contends Mr. Jones’s proposed reading of the exemption contravenes the express purpose and liberal construction requirements contained in the statute and that his interpretation would open the floodgates for inventive plaintiffs to circumvent the TCPA.

The court disagreed. It ruled that:

The plain language of section 27.010(c) excludes legal actions seeking recovery for bodily injury. See CIV. PRAC. & REM. § 27.010(c). Mr. Jones’s negligence claim seeks to recover for the bodily injuries—four gunshot wounds—that he claims he sustained as a result of Kirkstall’s negligence in editing and producing its program.

Without expressing any opinion on the merits of his claim, we conclude that Mr. Jones has shown that it is exempted from application of the TCPA. Having thus concluded, we hold the trial court did not err in denying Kirkstall’s motion to dismiss and pretermit Kirkstall’s remaining arguments. TEX. R. APP. P. 47.1.

So, are the floodgates opened? This case was not appealed but the 5th court of appeals in Dallas does not have a good record on the Texas Anti-Slapp or TCPA cases it has heard. Several important rulings have been reversed by the Texas Supreme Court. As of January 2018, the Supreme Court has granted a petition in another case where the Dallas court ruled that the Texas Anti-Slapp or TCPA did not apply. See John David Adams v. Starside Custom Builders LLC, 16-0786, pending in the Supreme Court.

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