In Minett v. Snowden, 05-18-00003-CV, (Tex. App. Dallas June 12, 2018) (mem. op) (pet. denied), a candidate for school board, Snowden, filed suit against a man, Minett, for publishing false information about him on Facebook and in a Flyer. Snowden alleged defamation and conspiracy. Minett filed a Texas Anti-Slapp motion to dismiss. He contended (1) Snowden failed to produce clear and specific evidence of his claims for defamation and conspiracy and (2) the publications in question were “covered by qualified privilege.” 

In early spring 2017, Snowden campaigned for a seat on the board of the Frisco Independent School District. The general election for that position was held on May 6, 2017. At some point prior to April 20, 2017, the Dallas Morning News (“DMN”) published a “voter guide” featuring responses of Snowden and other candidates to several questions, including the following: “Have you ever been arrested on any misdemeanor or felony charge or otherwise involved in any criminal judicial proceeding? If so, please explain and include the outcome of the case.” Snowden’s response to that question was “No.”

An organization called “Frisco Citizens for Campaign Integrity” (“FCCI”) posted on its Facebook page information claiming that Snowden had lied. That he had been arrested, that he had been convicted, was assigned an inmate number and was sentenced to 90 days in jail.

FCCI also sent a flyer to Frisco residents containing similar allegations.

Snowden claimed that FCCI was controlled by Minett and he was responsible for the post.

The trial court denied the Minett’s motion to dismiss and he filed an interlocutory appeal.

The Texas Anti-SLAPP law or TCPA has a three step process. In step one, the movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003 (a).

The court of appeals stated that all parties agreed that the claims were a legal action covered under the Texas Anti-SLAPP law.

Once the movant has shown that the nonmovant’s legal action is covered by the act, the burden shifts to the nonmovant to demonstrate a prima facie case for each essential element of a cause of action by “clear and specific evidence.” §27.005 (c).

Facebook

Snowden put on evidence that the posting on Factbook was false, however, the court ruled that he did not prove that Minett was responsible.

On this record, we conclude there is no evidence to support a rational inference that Minett posted the content in question on the FCCI Facebook page or provided that content to be published on that Facebook page by a third party. Therefore, we conclude Snowden did not meet his burden under the TCPA to establish by clear and specific evidence a prima facie case for the element of publication respecting the Facebook post.

Further, as to Snowden’s conspiracy claim respecting the Facebook post, “a defendant’s liability for conspiracy depends on participation in some underlying tort.” Appellate courts “do not analyze the trial court’s refusal to dismiss plaintiffs’ causes of action for conspiracy separately from its refusal to dismiss their other causes of action.” Consequently, in the absence of a viable claim against Minett for defamation based on the Facebook post, Snowden’s claim for conspiracy respecting the Facebook post must fail. 

Flyer

 The court did find that Snowden met his burden to prove his claim relating to the Flyer.

It first noted the evidence that Snowden had provided showing that Minett was responsible for the Flyer. It went on to analyse the Flyer and determined that Snowden had met his burden to show by clear and specific evidence that Minettt defamed him.

Construing the flyer “as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it, ” we conclude a reasonable view of the flyer’s “gist” is that Snowden has a prior arrest and incarceration that he attempted to hide. However, the record shows Snowden’s thirty-day jail sentence was probated and he did not serve any time in jail. The inclusion of an “inmate number” on the flyer without further detail or explanation conveyed a false meaning, i.e., that Snowden had been assigned that number as an incarcerated inmate. We disagree with Minett’s position that the false allegation of a prior incarceration is “a minor detail” that “does not affect the gist” of the flyer. On this record, we conclude there is clear and specific evidence that the flyer “taken as a whole” was “more damaging to the plaintiff’s reputation than a truthful [publication] would have been.” Thus, Snowden met his TCPA burden to show the flyer was defamatory. 

 Further, as to Snowden’s conspiracy claim respecting the flyer, appellate courts “do not analyze the trial court’s refusal to dismiss plaintiffs’ causes of action for conspiracy separately from its refusal to dismiss their other causes of action.” Accordingly, if the trial court did not err by refusing to dismiss the portion of Snowden’s defamation claim based on the flyer, then it did not err by refusing to dismiss the conspiracy claim related to that defamation claim. (“(I)f the trial court did not err by refusing to dismiss the defamation claim, then it did not err by refusing to dismiss the conspiracy claim related to the defamation claim”).

If the nonmovant meets his burden of establishing a prima facie case for each essential element of a cause of action by “clear and specific evidence”, the court must still grant the motion to dismiss if the movant establishes a valid defense by a “preponderance of evidence”. §27.005 (d).

 Minett claimed that he had a Qualified Privilege Defense to post the Flyer.

To meet his TCPA burden respecting this defense, Minett was required to establish by a preponderance of the evidence that he did not make the statements in question with actual malice, defined as knowledge of falsity or reckless disregard for the truth.

(W)e concluded above that Snowden established by clear and specific evidence a prima facie case for actual malice. Based on that same analysis, we conclude Minett has not met his burden to establish lack of actual malice by a preponderance of the evidence. 

We decide Minett’s issue against him, in part, and in his favor, in part. Additionally, we conclude this Court lacks subject matter jurisdiction over Snowden’s cross-appeal. (Snowden had asked the court to reverse the trial court’s refusal to grant limited discovery.)

We (1) dismiss Snowden’s cross-appeal for lack of jurisdiction; (2) reverse the portion of the trial court’s order denying Minett’s motion to dismiss Snowden’s claims based on the Facebook post; (3) render judgment dismissing Snowden’s claims based on the Facebook post; (4) affirm the portion of the trial court’s order denying Minett’s motion to dismiss Snowden’s other claims, i.e., those based on the flyer; and (5) remand this case to the trial court for further proceedings consistent with this opinion.

What Could Have Been Done

Because the trial court did not allow Snowden discovery on the motion to dismiss, he could not show that Minett was responsible for the Facebook post. He had taken a Rule 202 deposition before he filed his defamation claim to show the link to the Flyer but he did not take on that would tie Minett to the Facebook post.