The Lilith Fund is an organization in Austin that provides “information and financial assistance to women in need of an abortion,” according to its court filings.
Mark Lee Dickson is the director of Right to Life East Texas who has spent the last few years advocating for cities to adopt ordinances that outlaw abortion within city limits and create “sanctuary cities for the unborn.”
He has succeeded in getting at least 50 localities to adopt the protections for unborn babies.
In June 2020, the Lilith Fund sued Dickson and Right to Life East Texas for defamation because Dickson has referred to the group as a “criminal organization” for its support of abortion.
Dickson moved to have the case dismissed under the Texas Citizens Participation Act (TCPA).
The law, also commonly referred to as an anti-SLAPP law, allows an action to be dismissed if it “is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws were designed to prevent the use of courts and lawsuits to intimidate people from exercising their First Amendment rights.
“A holding from this court that there are instances in which you can not voice the view [that abortion is murder] is going to chill the speech of those who advocate for unborn life,” asserted Beth Klusmann, attorney for the State of Texas, which filed an amicus curiae brief in the case and argued before the court.
She concluded that the court should hold that Dickson’s statements were not defamatory.
The district court failed to rule on the motion to dismiss under the TCPA within 30 days of the hearing as required by law, so it was considered denied.
The Seventh Court of Appeals in Amarillo held that Dickson’s statements were opinions, not statements of fact, and therefore not actionable as part of a defamation claim. It therefore should have been dismissed under the TCPA.
The Lilith Fund appealed to the Texas Supreme Court, asking it to consider whether Dickson’s statements were “expressions of opinion or rhetorical hyperbole” or were statements of fact “accusing another of criminal conduct.”
The Lilith Fund argued that Dickson maintained steadfastly that his statements were fact and that he believed the group to be engaged in criminal activity in violation of statutes that predated Roe v. Wade.
However, those laws were overturned by the U.S. Supreme Court in Roe v. Wade and therefore one can not be considered a criminal for violating them, Jennifer Ecklund, attorney for the Lilith Fund asserted.
Justice Jimmy Blacklock pushed back, asking if Roe gave people the right to fund abortions.
The justices interjected several questions and hypotheticals to Ecklund about whether this was a statement of fact or an opinion.
Justice Jeff Boyd asked about death penalty opponents who accuse proponents of supporting murder and truly believe the accusation.
Blacklock asked, “Do we want to live in a world where the jury is going to decide whether to punish people for expressing their opinion of the law?” He noted that the court’s regular practice is to issue “opinions” settling competing viewpoints about what the law is.
Justice Evan Young expressed concern that the defamation suit could be used as “a Trojan horse to bring in massive questions of social policy” to the courts to resolve.
In light of the Dobbs decision in June that overturned Roe, Justice Debra Lehrmann asked whether the case might now be considered moot.
Justice Jane Bland raised the question of whether the Lilith Fund’s view left room for advocacy and differing views of the law.
Dickson’s primary defense during oral arguments was that the statements were true and therefore not defamatory. According to common law, truth is a defense to defamation.
This argument was based on the existence of statutes in Texas that remained on the books and imposed criminal liability for those who “furnish the means for procuring an abortion knowing the purpose intended.”
Jonathan Mitchell argued in his brief on behalf of Dickson that “there is no constitutional obstacle to enforcing [the law] against the Lilith Fund, even if one assumes the continued existence of Roe v. Wade.”
Justice Brett Busby asked Mitchell what effect the city ordinances had on the case, since it had used the “criminal organization” language to describe the Lilith Fund.
Boyd also asked Mitchell the practical reason for asserting the truth defense as his first and primary argument.
Attorneys also argued issues about whether the Lilith Fund had sufficiently proven other elements of a defamation claim. However, the justices spent the majority of their time questioning the attorneys about the truth defense and whether the statements were actually opinions.
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Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.