The Texas Supreme Court may soon decide the fate of the First Amendment in political campaigns in Texas for a generation. In May, we recapped the controversy surrounding the Texas State Board of Education (the “SBOE” or the “Board”) in 2010.
That year, Judy Jennings and Rebecca Bell-Metereau ran campaigns for seats on the Board. During the campaign, they hired a consultant named Scott Garrison. Garrison produced a video for them which criticized central figures behind the curriculum changes at the Board. Less than a year after their campaigns had concluded, one of those figures went to court, landing Jennings and Bell-Metereau at the sharp end of a watershed defamation lawsuit concerning constitutionally-protected free speech and a Texas law that wasn't even passed until the 2011 session.
Jennings and Bell-Metereau fought back, and now their case is poised to go before the Texas Supreme Court, even as they run for the Board again – Jennings from District 10, and Bell-Metereau from District 5. To see why they were sued, and what's happening now, read below the jump.WHO IS DAVID BARTON?
Jennings and Bell-Metereau ran their respective 2010 campaigns for the Board against the backdrop of the controversy surrounding proposed – and implemented – changes to Texas school curricula by the Board in 2010. Fundamental, long-settled issues such as the teaching of science and the place of Thomas Jefferson in American history were suddenly subject to debate. Educators themselves, Jennings and Bell-Metereau sought to impress upon voters the nature of the attack on education brought by conservative members of the Board and their appointees. They hired Garrison to produce a video which framed the issues and identified certain players in the drama unfolding at the Board, including David Barton. The Board had appointed Barton to be one of three reviewers of the proposed curriculum; therefore, it was reasoned, his inclusion was relevant.
According to a 2005 Time Magazine article, Barton had previously been a co-chair of the Texas Republican Party and a friend of former Republican House Majority Leader Tom DeLay. In addition to his Republican Party bona fides, Barton has spoken extensively about American history and, more particularly, religion's role in it. According to an August 2012 NPR story, Barton believes that the Constitution is not a secular document and that Congress intended for the Bible to be used in public schools. According to that same article, he also believes that Thomas Jefferson was a civil rights visionary and that the founding fathers had already had the debate on creationism, decades before the Beagle ever sailed its famous voyage.
Even The Wall Street Journal, in discussing Barton's role in education in Texas, stated that he believed that “children must learn that American's founding principles are biblical.” According to court filings discussed below, Barton urged that the “curriculum be revamped to emphasize the role of the Bible and Christian faith in the study of American history…[and]. should clearly present Christianity as a key reason for American exceptionalism.” [internal citations omitted]
WHITE SUPREMACISTS AND THE CAMPAIGN VIDEO
The video sought to allude to other aspects of Barton besides his views on education. According to Page 2 of Jennings and Bell-Metereau's Motion to Dismiss the lawsuit, in referring to Barton, the video said this:
“The zealots [on the State Board of Education]quickly got to work rewriting curriculum…they tossed out the work of hundreds of teachers, educators and historians, replacing them with people who had no background in education, but plenty of unique and special credentials, like David Barton, known for speaking at white-supremacist rallies, who says taxes on Wall Street executives go against the principles of the Bible, and Peter Marshall, who said Hurricane Katrina was God punishing America.”
On September 1, 2011, nearly a year after the conclusion of Jennings' and Bell-Metereau's respective campaigns, Barton sued the pair over the content in the campaign video; the counts included defamation, libel per se, defamation per se, and business disparagement. Barton's businesses, WallBuilder Presentations, Inc., and WallBuliders, LLC, also joined the lawsuit as plaintiffs. By the language of Barton's petition, “WallBuilders is an organization dedicated to presenting America's forgotten history and heroes, with an emphasis on the moral, religious, and constitutional foundation on which American was built.”
On September 30, 2011, Jennings and Bell-Metereau filed an answer, denying each and every allegation and demanding strict proof thereof. Just over a month later, on November 7, they went further, filing a motion to dismiss the lawsuit, invoking Texas' new anti-SLAPP law, the Texas Citizens' Participation Act, TEX.CIV.PRAC. & REM.CODE §27.002, (the “Act”). SLAPP is an acronym for Strategic Lawsuit Against Public Participation.
Wikipedia defines a SLAPP as “a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” Restated, a party with thin skin can abuse the legal process to bankrupt and silence their critics. Bystanders to such aggressive and frivolous litigation take note and remain silent despite any truth to their own claims. The chilling effect on free speech is broad indeed. Political discourse suffers, and the public suffers with it. An anti-SLAPP law, such as the Act, is designed to protect free speech. Approximately 28 states and the District of Columbia have such laws. The Texas anti-SLAPP statute was signed into law on June 17, 2011.
FALSE STATEMENTS, ACTUAL MALICE, AND THE ACT
Texas rarely offers a defendant in a lawsuit the chance at a motion to dismiss. However, because the very purpose of the Act is to spare parties exercising free speech rights (particularly in political discourse) the onerous costs of protracted litigation, the Act provides defendants such as Jennings and Bell-Metereau an early exit from litigation by way of a motion to dismiss. To survive a motion to dismiss, the Act demands that Barton show a prima facie case of the elements of defamation by clear and specific evidence.
Since the seminal U.S. Supreme Court case, New York Times v. Sullivan, 376 U.S. 254 (1964), to win a defamation case such as this, a public figure such as David Barton must show that Jennings and Bell-Metereau: 1) published a statement; 2) that was defamatory concerning the plaintiff; 3) which was false; 4) while acting with “actual malice” regarding the truth of the statement.
Actual malice does not, in this sense mean evil. Rather, in this context, Barton could show actual malice if he could show that the pair (or the political consultant they hired, Scott Garrison) made the statement “with knowledge that it was false or with reckless disregard of whether it was true or not.” Reckless disregard means that the speaker must have entertained serious doubts as to the truth of the publication.
JENNINGS' AND BELL-METEREAU'S EVIDENCE
A key problem for Jennings and Bell-Metereau was and remains the fact that the statute is so new; there was and is little precedent to guide them. As a result, in their motion to dismiss the lawsuit, Jennings and Bell-Metereau attempted to marshal as much as evidence as they could to support their primary defense – that the contents in the video were, in fact, true.
Jennings and Bell-Metereau filed sworn affidavits, in addition to 29 other exhibits.
Those exhibits included:
• An article by the Texas Freedom Network stating: “In 1991 Barton spoke at two events sponsored by groups with ties to white supremacists. He later claimed that he had not known the groups were 'part of a Nazi movement.'”
• A 1998 article by Rob Boston at the Institute for First Amendment Studies which alleged: “On two occasions Barton has delivered his presentation before white supremacist organizations with ties to neo-Nazis.”
• An Anti-Defamation League report which reported: “On at least two occasions, Barton has delivered his revisionist presentation in the meeting halls of the racist and anti-Semitic extreme right.”
• An August 2010 Huffington Post piece which stated “Barton has twice addressed white-supremacist organizations with ties to Neo-Nazis, but both times has done so accidentally.”
Jennings and Bell-Metereau's source materials also included The Wall Street Journal, Dallas Morning News, Daily Kos, The Texas Tribune, MSNBC's Countdown with Keith Olbermann, and The New York Times. Concerning at least one of the specific sources, Barton responded that the Anti-Defamation League had retracted the report containing that quote; however, Jennings and Bell-Metereau countered in their arguments that those specific statements at issue in fact had not been retracted.
Barton did not deny speaking at those rallies or groups with white supremacist associations. Rather, his court filings from his response to the motion to his later appellate brief argue the following points:
1) that he did not know of the white supremacist connections at either forum where he spoke, and
2) that the statement in the video that he was “known for speaking at white supremacist rallies” was not true because, while he may have done it on those two occasions, speaking to white supremacist gatherings was not an ongoing activity nor an activity for which he was presently known.
In Paragraph 37 of his brief to the appeals court, while referencing an attached affidavit, Barton went on to say that once he learned that he may have spoken to groups associated with white supremacy ideologies, he “took decisive action to ensure that all future scheduling for speaking or teaching be preceded by reasonable and effective research concerning the groups of people where he would be speaking” but did not detail those actions in the text of that paragraph.
He further argued that Garrison's “actual malice” can be imputed to Jennings and Bell-Metereau because they hired him, and the court must compel Jennings and Bell-Metereau to proceed through costly litigation to its conclusion because the language of the anti-SLAPP law does not allow for an interlocutory appeal in this case.
JENNINGS AND BELL-METEREAU APPEAL
On January 20, 2012, the district court in Parker County, Texas denied Jennings and Bell-Metereau's Motion to Dismiss. The Texas anti-SLAPP law, however, allows for an interlocutory appeal. Such an appeal would allow the pair to appeal the ruling on the dismissal motion without necessarily proceeding to trial. On March 23, Jennings and Bell-Metereau did appeal to the Second Court of Appeals to review the decision of the Parker County District Court. They also filed a Petition for Writ of Mandamus. A writ of mandamus is a writ issued by a court which orders the subject of the writ to perform a duty or correct an abuse of discretion – in this case, to compel the district court to grant the motion to dismiss. On August 21, the appeals court denied the petition for the writ.
Five days earlier, on August 16, the appeals court had denied Jennings and Bell-Metereau's appeal. No justices dissented. In denying relief, the court held simply that the anti-SLAPP law's provision for interlocutory appeal did not apply to this case; as a result, the court did not have jurisdiction to hear the appeal, and could not hear the case.
Jennings and Bell-Metereau then filed a Petition for Review with the Texas Supreme Court, asking the Court to review the decision of the appeals court which held that there could be not interlocutory appeal in this case, even though the statute clearly calls for an interlocutory appeal. They also asked the Court to rule whether a candidate for public office could be vicariously liable for the actual malice of an independent contractor political consultant. Could Jennings and Bell-Metereau be held liable for actions or speech which were not their own?
They also filed a Petition for Writ of Mandamus with the Texas Supreme Court, quite simply asking the Court to rule on the questions which were the subject of their appeal to the Second Court of Appeals – can Jennings and Bell-Metereau be held liable for actions which are not their own, and are they entitled to First Amendment protection for a campaign video which offered salient facts but was not a comprehensive biography of the subject?
FAREWELL FREE SPEECH
The law at issue here is little more than a year old. It is all but untested. There is little guiding precedent. The case presents questions concerning highly technical questions concerning statutory interpretation, as well as evidentiary standards. More glaringly, however, it presents enormous questions concerning free speech, political campaigns, and the public forum.
At the outset, what makes a statement either true or false? The video at issue alleged that Barton was known for speaking at white-supremacist rallies. The rallies at issue were in 1991. Barton didn't deny speaking at the rallies or to the groups. However, Jennings and Bell-Metereau, in their court filings, cited to numerous stories which referenced the events at issue and which were published at various points over the course of nearly two decades. Several of those were produced by national news outlets. Does the fact that Barton has done many other things over the last two decades dilute that fact into falsity? To cite a potentially inflammatory example, Anita Hill is a distinguished attorney and law professor and has been for decades.
However, to the majority of Americans, Hill is “known for” a select few hours of testimony concerning U.S. Supreme Court Justice Clarence Thomas before the Senate Judiciary Committee in 1991 (ironically, the same year that Barton's appearances before the rallies or gatherings occurred). If someone said she was “known for” those few hours and days, would it be untrue? It might be unfair, but that reference would certainly resonate with many, even those who are familiar with her broader body of professional work. In the case concerning Jennings and Bell-Metereau, the courts appear to be treating this question as a factual one (rather than legal), but however it is ultimately decided – whether by a judge as a matter of law or as a matter of fact – the decision will have an effect on political speech for a long time to come.
Moreover, in the era of Citizens United, the influence of money on elections and the imbalance of power between certain political forces and grassroots candidates – particularly down-ballot candidates – cannot be gainsaid. If Barton's argument prevails in this case, and candidates can be held liable for the actual malice of independent contractors, new ground will be broken. From an actuarial standpoint, candidates with small warchests, despite any superior qualifications they may have for the job at hand, simply will not be able to compete. The costs of compliance and ensuring that they don't bankrupt themselves defending against a defamation lawsuit will be too steep – even when frivolous or caused by the acts of someone over whom they exercise no control.
Additionally, if an interlocutory appeal is not available to litigants defending against defamation, the anti-SLAPP statute will be effectively dead. The point of an anti-SLAPP law, such as the one passed in Texas last year, is to ensure that parties can speak in the public forum concerning public issues, without fear a frivolous defamation lawsuit and consequent financial ruin. The motion to dismiss – provided under the statute and procedurally rare in Texas – does ensure that. However, in the case that the motion is not granted, an interlocutory appeal provides a backstop – a last chance for defendants to avoid months or years of litigation and its attendant costs, while still vindicating themselves and reducing the chilling effect on free speech. If the right to that appeal is struck down for situations such as these, then again, the balance of power will shift from the merely qualified to those who are well-heeled, and perhaps incidentally qualified.
WHERE ARE THEY NOW?
Currently, Jennings and Bell-Metereau are waiting to see if and how the Texas Supreme Court decides to rule on either of their petitions. As they do that, they continue to move forward in their quests for seats on the Board in the final weeks leading up to Election Day. Despite his apparent legal successes against two educators, however, David Barton has had his own setbacks. In August, NPR reported that publisher Thomas Nelson was ceasing publication and distribution of Barton's book, The Jefferson Lies: Exposing the Myths You've Always Believed About Thomas Jefferson. According to the NPR story:
“The publishing company says it's ceasing publication because it found that “basic truths just were not there.””
Notably, according to its own website, Thomas Nelson is the “world's largest Christian publisher” with a goal “to honor God and serve people.”
The NPR story further quoted a senior vice president at Nelson:
“When the concerns came in, from multiple people, and that had weight too, we were trying to sort things out,” said Thomas Nelson Senior Vice President and Publisher Brian Hampton. “Were these matters of opinion? Were they differences of interpretation? But as we got into it, our conclusion was that the criticisms were correct. There were historical details – matters of fact, not matters of opinion, that were not supported at all.”
“The truth is, the withdrawing a book from the market is extremely rare. It's so rare I can't think of the last time we've done this,” Hampton said. But, he said, “If there are matters of fact not correctly handled or the basic truth is not there, we would make a decision based on that.”