FILED IN THE SUPREME COURT OF TEXAS 13 April 5 P2:57 BLAKE. A.

HAWTHORNE CLERK

No. 12-0775
IN THE SUPREME COURT OF TEXAS

IN RE JUDY A. JENNINGS AND REBECCA BELL-METEREAU, Relators.

Original Proceeding from the 415th District Court, Parker County, Texas Trial Court Cause No. CV-11-1349 Court of Appeals No. 02-12-00339-CV

PETITION FOR WRIT OF MANDAMUS BRIEF ON THE MERITS

R. James George, Jr. Texas State Bar No. 07810000 rjgeorge@gbkh.com Julie A. Ford Texas State Bar No. 07240500 jford@gbkh.com
GEORGE BROTHERS KINCAID & HORTON, LLP

114 W. 7th Street, Suite 1100 Austin, Texas 78701 (512) 495-1400 Telephone (512) 499-0094 Telecopier Attorneys for Relators Judy A. Jennings and Rebecca Bell-Metereau

IDENTITY OF PARTIES AND COUNSEL Relators (Defendants in the Trial Court): Judy A. Jennings and Rebecca Bell-Metereau Counsel for Relators: R. James George, Jr. Julie A. Ford GEORGE BROTHERS KINCAID & HORTON, L.L.P. 114 W. 7th Street, Suite 1100 Austin, Texas 78701 Telephone: (512) 495-1400 Telecopier: (512) 499-0094 Trial and Appellate Counsel Real Parties in Interest (Plaintiffs in the Trial Court): Wallbuilder Presentations, Inc. through its President David Barton, Wallbuilders, L.L.C., through its President David Barton, and David Barton Individually Counsel for Real Parties in Interest: Edward P. Watt Robert J. Bozelli WATT LAW FIRM 141 East Mercer Street, Suite C Dripping Springs, Texas 78620 Telephone: (512) 894-4404 Telecopier: (512) 858-0770 Trial and Appellate Counsel Respondent: Honorable Graham Quisenberry Presiding Judge, 415th District Court, Parker County, Texas
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TABLE OF CONTENTS Identity of Parties and Counsel..................................................................................ii Index of Authorities..................................................................................................vi Statement of the Case...............................................................................................xi Statement of Jurisdiction.........................................................................................xii Issues Presented.......................................................................................................xii Introduction................................................................................................................1 Statement of Facts......................................................................................................2 I. II. Barton was a featured speaker at Christian Identity gatherings......................2 In 2010, Bartons controversial speaking engagements were being reported in the national news...........................................................................5 Bartons qualifications as an advisor to the SBOE was an issue in the 2010 election.........................................................................................7 Barton sued two individual SBOE candidates for defamation.......................9

III.

IV.

Summary of the Argument.......................................................................................11 Argument..................................................................................................................13 I. The trial courts denial of Relators motion to dismiss is grounds for mandamus relief.............................................................................................13 A. The Texas Citizens Participation Act requires a trial court to dismiss certain claims unless they are established by clear and specific evidence..........................................................................14

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B. II.

Bartons burden under the Act............................................................15

Barton failed to establish the essential element of falsity.............................16 A. Barton failed to establish that he was not known for speaking at white-supremacist rallies.................................................................16 Bartons implied libel claim cannot hold up under First Amendment protections for political speech......................................18

B.

III.

Barton failed to establish the constitutional element of actual malice.........20 A. Actual malice and reckless disregard are terms of art referring to a defendants subjective knowledge................................20 Barton was required to establish actual malice as to each individual Relator................................................................................21 Relators cannot be liable for the actual malice of a political consultant acting as an independent contractor.................22 1. Mere agency is not enough to establish the constitutional requirement of actual malice.....................................................23 The actual malice of an independent contractor cannot be imputed to the principal.......................................................24 Texas law does not support vicarious liability for acts of an independent contractor....................................................25

B.

C.

2.

3.

D.

No evidence or law supports Bartons most recent legal theory of direct liability..................................................................................28 There was no clear and specific evidence to support the claim that Garrison acted with actual malice................................................30

E.

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IV.

Wallbuilders established no claim for defamation or business disparagement................................................................................................33 Relators have no adequate remedy by appeal...............................................34 A. B. Mandamus is necessary to protect the legislative scheme..................35 Mandamus is necessary to resolve important statutory and First Amendment issues...............................................................37

V.

VI.

Relators have timely invoked jurisdiction for mandamus relief...................38 A. The court of appeals had the authority to treat the interlocutory appeal as a petition for writ of mandamus..........................................39 Bartons jurisdictional argument has no support in the Act...............40

B.

Prayer for Relief.......................................................................................................44 Certificate of Compliance........................................................................................45 Certificate of Service...............................................................................................45 MANDAMUS RECORD The mandamus record (bound separately) consists of sworn copies of every document material to Relators claim for relief and filed in the underlying proceedings, marked as tabs 1 - 116. References in this petition to the mandamus record are indicated by the abbreviation R. Please note that R89 consists of printed emails produced by Scott Garrison in his deposition and filed by Real Party in Interest in opposition to Relators motion to dismiss. The pages of emails are numbered 1 - 773, starting with the most recent email, dated October 27, 2011, at page 2, and ending with the earliest email dated June 9, 2010, at page 773.

INDEX OF AUTHORITIES Cases Baptist Meml Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998)...................................................................23, 26 Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).........................................................21, 29, 30, 32 Chandler v. Cash, 20 S.W.3d 60 (Tex. App. Texarkana 2000, pet. denied)............................28 Citizens United v. Federal Election Comn, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).................................18 City of DeSoto v. White, 288 S.W.3d 389 (Tex. 2009)...................................................................42, 43 City of San Antonio v. Pollack, 284 S.W.3d 809 (Tex. 2009).........................................................................17 CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011).......................................................38, 39, 40, 42 Cox Newspapers, L.P. v. Penick, 219 S.W.3d 425 (Tex. App. Austin 2007, pet. denied)...............................33 D.A.R.E. America. v. Rolling Stone Magazine, 101 F. Supp.2d 1270 (C.D. Cal. 2000)..........................................................24 Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903 (Tex. App. Fort Worth 2009, pet. denied).......................26 Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003).........................................................................33

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Harte-Hanks Commcn, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)...............................31 Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005).............................................................16, 21, 30 Huckabee v.Time Warner Entmt Co., L.P., 19 S.W.3d 413 (Tex. 2000)...............................................................20, 21, 30 Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983)........................................................................25 In the Interest of J.P.L., 359 S.W.3d 695 (Tex. App. San Antonio 2011, pet. denied).....................40 In re AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004).........................................................................35 In re Jordan, 249 S.W.3d 416 (Tex. 2008).........................................................................34 In re Lisa Laser USA, Inc., 310 S.W.3d 880 (Tex. 2010)...................................................................13, 35 In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004).......................................................13, 14, 34, 37 In re R.G., 388 S.W.3d 820 (Tex. App. Houston [1st Dist.] 2012, no pet.)..................40 In re Reece, 341 S.W.3d 360 (Tex. 2010).........................................................................42 In re State Bar of Texas, 113 S.W.3d 730 (Tex. 2003).........................................................................43 Jack B. Anglin Co. v. Tipps,
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842 S.W.2d 266 (Tex. 1992).........................................................................35 Jennings v. Wallbuilders Presentations, Inc., 378 S.W.3d 519 (Tex. App. Fort Worth 2012, pet. filed)....................14, 36 Kirsh v. Liberty Media Corp., 449 F.3d 388 (2nd Cir. 2006)..........................................................................33 Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974)...................................20 Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002)...........................................................................27 Masson v. New Yorker Magazine, 832 F. Supp. 1350 (N.D. Cal. 1993).......................................................24, 25 McFarlane v. Esquire Magazine, 74 F.3d 1296 (D.C. Cir. 1996)....................................................22, 23, 24, 25 Murray v. Bailey, 613 F.Supp. 1276 (N.D. Cal. 1985)...............................................................24 New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004).............................................................19, 20, 32 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).........................23, 24, 25 Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964).........................................................................27 Newspapers, Inc. v. Matthews, 339 S.W.2d 890 (Tex. 1960).........................................................................33 Price v. Viking Penguin, Inc., 881 F.2d 1426 (8th Cir. 1989)..................................................................21, 22
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Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011).........................................................................42 S & I Mgmt., Inc v. Sungju Choi, 331 S.W.3d 849 (Tex. App. Dallas 2011, no pet.)......................................26 Schatz v. Republican State Leadership Comm., 669 F.3d 50 (1st Cir. 2012)............................................................................19 Secord v. Cockburn, 747 F. Supp. 779 (D.D.C. 1990).............................................................21, 25 Snyder v. Phelps, U.S., 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011)........................................18 Surgitek v. Abel, 997 S.W.2d 598 (Tex. 1999).........................................................................42 Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872 (Tex. App. Houston [14th Dist.] 2011, no pet.)................40 Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277 (Tex. 1990).........................................................................27 Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000)...............................................................15, 16, 19 Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004).........................................................................43 Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347 (Tex. 2001)...........................................................................42 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998)...................................................................15, 20

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Statutes TEX. CIV. PRAC. & REM. CODE ANN. ch. 27 (Vernon Supp. 2012) (Citizens Participation Act) 27.001, et seq.....................................................................................xi, 10, 35 27.002...........................................................................................................14 27.003...........................................................................................................35 27.003(a)......................................................................................................15 27.003(c).......................................................................................................35 27.004...........................................................................................................35 27.005..................................................................................................xi, 10, 35 27.005(b)......................................................................................................15 27.005(c)......................................................................................................15 27.008......................................................................................................xi, 10 27.008(b)......................................................................................................37 27.008(c)..............................................................................37, 38, 41, 42, 43 27.009...........................................................................................................36 27.011(b)......................................................................................................41 TEX. GOVT CODE 22.002(a)......................................................................................................xii

Rules TEX. R. APP. P. 52.3(e).............................................................................................43

STATEMENT OF THE CASE Nature of the case: Relators were sued for their exercise of the right of free speech in a lawsuit that falls within the scope of the Citizens Participation Act. TEX. CIV. PRAC. & REM. CODE ANN. 27.001, et seq. (Vernon Supp. 2012). Pursuant to that Acts provisions, Relators filed a motion to dismiss claims for defamation and business disparagement brought by Real Parties in Interest. R3. The Act mandates that the trial court shall dismiss the claims unless Real Parties in Interest established a prima facie case for each essential element of the claim in question. Id. 27.005. The Honorable Graham Quisenberry, Judge Presiding, in the 415th District Court, Parker County, Texas.

Trial Court:

Trial Courts action from which relators seek relief: Court of Appeals Panel:

The trial court denied Relators motion to dismiss. R98.

Second Court of Appeals at Fort Worth. Panel: Justices Walker, Dauphinot and Gardner

Court of Appeals proceedings and disposition:

Relators filed an interlocutory appeal of the trial courts order pursuant to TEX. CIV. PRAC. & REM. CODE ANN. 27.008 (Vernon Supp. 2012). The appeal was dismissed for lack of jurisdiction. Jennings v. Wallbuilder Presentations, Inc., 378 S.W.3d 519 (Tex. App.Fort Worth 2012, pet. filed). R112. Relators had moved in the alternative that the court of appeals consider their appeal as a petition for writ of mandamus and that motion was granted. R111, 114. The petition for writ of mandamus was denied by Memorandum Opinion on August 21, 2012. R116.
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STATEMENT OF JURISDICTION Jurisdiction is grounded in TEX. GOVT CODE 22.002(a), which authorizes this Court to issue all writs of mandamus agreeable to the principles of law regulating those writs against a district judge.

ISSUES PRESENTED

I.

The Texas Citizens Participation Act requires dismissal of a claim that falls within the protection of that Act, unless the plaintiff establishes a prima facie case of each essential element of the claim. When the plaintiff fails to establish one or more essential elements, but the trial court erroneously denies a motion to dismiss, is mandamus relief necessary and appropriate? Does the First Amendment protect against liability for a sound-bite about a public figure in a campaign video where the statement is literally true, but omits facts that the public figure claims would make him look better? In a defamation case in which the First Amendment standard of actual malice is an essential element, can a candidate for public office be vicariously liable for the alleged actual malice of an independent contractor? Can evidence of a political consultants personal bias be clear and specific evidence that the consultant published a campaign video with actual malice? Can a corporate entity maintain a derivative claim for defamation based solely on a statement about that entitys president?

II.

III.

IV.

V.

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INTRODUCTION
This is a libel case based on a 2010 political campaign video. Two candidates for the State Board of Education have been sued by well-known religious activist David Barton based on a literally true statement in the video. At issue in this mandamus action are important First Amendment protections for core political speech. The landmark case of New York Times v. Sullivan clearly prohibits a finding of liability against the two candidates sued by David Barton. The trial court was required to dismiss all claims against Relators under the new Texas Citizens Participation Act. Through this Act, the Legislature sought to protect citizens from meritless lawsuits that impact a citizens right of free speech. The trial courts failure to dismiss the claims was an error of law with farreaching consequences. Without mandamus relief, Relators will forever be denied the relief mandated by the Act. Unless trial courts are required to enforce the new Citizens Participation Act, defendants across the state will be denied the protection the Legislature intended to create. Last, the continuation of this lawsuit would condone an unprecedented theory of liability, a theory that exposes political candidates to a level of risk of personal liability which is completely unacceptable in our democratic society.

STATEMENT OF FACTS
Relators Judy Jennings and Rebecca Bell-Metereau believed that public school curriculum should not be influenced by the religious right. R17, R21. Many people disagreed with Relators views. R5, R6. This hotly contested issue was at the forefront in 2010 when Jennings and Bell-Metereau ran for the Texas State Board of Education. Id. Relators campaign consultants created a campaign video that criticized certain members of the State Board of Education (SBOE) for their support of controversial changes to the curriculum. R4. Real Party in Interest David Barton had played a key role in those curriculum revisions. R5. The video noted that Barton was known for speaking at white-supremacist rallies. R16. That statement was literally true.

Barton did speak at white-supremacist rallies, and in 2010 he was still known for this. See Parts I-III. I. Barton was a featured speaker at Christian Identity gatherings. In 1991, Barton spoke at a Scriptures for America Colorado retreat hosted by Pete Peters. R39 18. That same year Barton spoke at Mike Watsons Kingdom Covenant College in Grants Pass, Oregon. Id. In 2010, people were still talking about Bartons appearances at these gatherings. R8-15, R30-32, R34-35.

This is because these groups were part of the Christian Identity movement. R12, 15. The Christian Identity movement asserts that Jews are the synagogue of Satan and that Blacks and other people of color are subhuman. R12, p.55, R15, R27. As reported on the Anti-Defamation Leagues website: Pete Peters had been a leading anti-Jewish, anti-minority and anti-gay propagandist. He is a proponent of Christian Identity, which argues that Jews are spiritually degraded and pose a threat to civilization, that blacks and other people of color are inferior to whites, that homosexuals should be executed and that northern European whites and their American descendants are the chosen people of scriptural prophecy. R15, see also R27-28. The article added, [f]rom the pulpit, Peters has expounded prolifically on Identitys biblical views, which include ... [that] homosexuals should be executed. R15. The anti-Semitic teachings of Scriptures for America are no secret. Scriptures for Americas own website complains that the United States allows Jews to intermingle with all of us. It states, We hate them here at this Ministry, and call an anti-Christian Anti-Christ, just as Jesus hates them and God hates them. R29, p. 13. In short, these are white-supremacist groups. As Barton gained national recognition with his Christian nation views of America, his critics continued to remind the public that Barton had been a featured speaker at these white-supremacist

gatherings. In April 1993, an article published in Church & State stated: Barton was listed in promotional literature as a new and special speaker at a 1991 summer retreat in Colorado sponsored by Scriptures for America, a farright ministry headed by Pastor Pete Peters. Peters organization, which is virulently anti-semitic and racist, spreads hysteria about Jews and homosexuals and has been linked to neo-Nazi groups. (The organization distributes a booklet called Death Penalty for Homosexuals.) R14, p.2. 1 In 1994, the Anti-Defamation League published a book on developments the author viewed as an assault on tolerance and pluralism in America. R12. In that book, the author describes what he called David Bartons extremist connections, including the 1991 presentations to Christian Identity groups. At the Colorado event, in addition to Barton, other featured speakers reportedly included a virulently antiSemitic speaker, a self-described white separatist and a Canadian Holocaust denier. R12, p.55. The ADLs more recent website confirmed the details from its 1994 book regarding Scriptures for America, including the Colorado retreat. R15, p. 3.

This brief does not claim that Barton shares these views; the point is that it was widely reported that Barton spoke at events hosted by people with these beliefs. Bartons affidavit states that Christian Identity beliefs are an abhorrent, perverted twisting of sacred scriptures. R39, p. 5. Barton has never suggested imposing a death penalty on homosexuals; he only asks, Why dont we regulate homosexuality? R. 31, p. 2. Nor has Barton specifically questioned the spirituality of Jews, he only has been reported as saying that non-Christians are ungodly. R12, p.55.
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The same information about Barton was published in another article in June 1996 by The Public Eye, titled David Barton - Master of myth and misinformation. R11. This article included Bartons explanation for his actions: At the time we were contacted by Pete Peters, we had absolutely no idea that he was part of the Nazi movement. R11, p. 2. II. In 2010, Bartons controversial speaking engagements were being reported in the national news. As Bartons fame increased over time, so did media coverage of his Christian Identity speaking engagements. In 2010, the fact that Barton spoke at white-

supremacist gatherings was being reported in national news and widely discussed in liberal internet publications. In February 2010, on MSNBCs Countdown, Keith Olberman asked his guest, And speaking of beliefs, Mr. Barton has previously in his career addressed gatherings of so-called Christian groups that have this unfortunate racist bent to them? The speaker, a long-time Barton critic, confirmed that in the early 1990s Barton gave two speeches to organizations that were both anti-Semitic and racist. R34. In April 2010, an internet posting had this headline: Glenn Beck Promotes Theocracy and Interviews David Barton - Speaker at Neo-Nazi Rallies. R35

(emphasis added). The article states: And heres a little more information about David Barton; in the 1990s he gave speeches at two events organized by outright neo-Nazis and Holocaust deniers, then claimed he didnt know who they were. R35 (emphasis in original). On July 12, 2010, the Daily Kos reported that David Barton brings his own troubling baggage .... in 1991 Barton gave several speeches before virulently racist, white supremacist groups including at Pastor Pete Peters Christian Identity church in Colorado. R6. Texas Freedom Network picked up on David Bartons troubling baggage and published an article that included the following statement: 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. R10. In August 2010, the Huffington Post said, Accidently addressing a neo-Nazi hate group can happen even to the best of folks. But doing it twice? .... Barton has twice addressed white-supremacist organization with ties to neo-Nazis, but both times has done so accidentally, he says. R30. Bartons Wikipedia page still refers to this publicity, stating Barton was also criticized for speaking at two functions organized by the ministry of Christian Identity adherent and Holocaust denier Pete Peters. R8, p. 2-3.
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III.

Bartons qualifications as an advisor to the SBOE was an issue in the 2010 election. With Bartons controversial speaking engagements being widely publicized by

liberal publications, it can be no surprise that this information was picked up by political consultants in the 2010 Texas State Board of Education elections. Barton had figured largely in the public debate over the rewriting of curriculum guides. R5. Barton was one of three curriculum reviewers appointed by social conservatives on the Board. R5, p. 2. According to the Wall Street Journal, Barton recommended revamping curriculum to emphasize the Bible and Christian faith. Id. The SBOE vote on the new curriculum was split along party lines, with the Democrats calling the new guidelines a travesty and criticizing the conservative Board members for injecting their religious views into the standards. R6. Relators Jennings and Bell-Metereau sided with their Democratic colleagues in this debate. Their campaign teams produced a highly satirical video, titled A

True Tale from Texas. R4. The video opened with these comments: Once upon a time, in a land called Texas, many foolish people believed the State Board of Education should actually help educate schoolchildren. But one group of people knew that was silly. They knew public school should really be used for propaganda and personal, ideological agendas. R16. In mid-September 2010, the video was revised to include this statement about David Barton:
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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. R16. This version of the video was posted on YouTube on or about September 10, 2010. R89, p.230, 237. Relators Jennings and Bell-Metereau did not create the video, nor did they write or fact-check the statement about David Barton. R17 at 7-9, R21 at 5-6. Instead, they relied on their political consulting team to ensure that the facts in the campaign video were true. Id. They believed the phrase at issue, like David Barton, known for speaking at white-supremacist rallies, was true. Id. The statement about David Barton was fact-checked by a political consultant named Scott Garrison. R 82, p. 75-77. Garrisons firm, Stanley-Garrison & Associates, had been retained by both Relators for political fund-raising and general consulting. R82, p. 20, p.42-45, R85, R86. A political media firm called Rindy Miller Media had produced the campaign video, and Scott Garrisons job was to coordinate the production. R4, R38, p.5-6, R82, p.42-45. In confirming the statement about David Barton, Garrison was directed to an article published by the Texas Freedom Network. R82, p. 77-78, p.118. That article
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stated: 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. R10. Garrison was satisfied that the videos sound bite about Barton was true after seeing this article and confirming the information directly with Texas Freedom Network. R82, p.108, p.118-122. Barton did not deny the facts reported in this article. R39, 18-22. He admitted that he did speak at the two events identified in that article, including Pete Peters Identity Church Scriptures for America. Id. He did not deny that this organization is widely reported to be both racist and virulently anti-Semitic. R39, 22; see also R15, R27, R28, R29. Barton claims that at the time, he had no personal knowledge of the groups Christian Identity beliefs. R39, 19. Barton does not deny that, at the time the video was published in 2010, he was still being publicly criticized for speaking at these gatherings. See R39. IV. Barton sued two individual SBOE candidates for defamation. Barton never contacted Jennings or Bell-Metereau to ask that the video be retracted or clarified. Almost a year after the video was posted on YouTube, Barton sued Relators for defamation and business disparagement. R1. Barton alleged that the statement in the campaign video, like David Barton, known for speaking at
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white-supremacist rallies, was false. Id. at p. 9. Bartons business entities, WallBuilder Presentations, Inc. and WallBuilders, L.L.C. (Wallbuilders) also sued, even though they were not mentioned at all in the video. R1, R16. Relators filed a motion to dismiss pursuant to the Texas Citizens Participation Act. TEX. CIV. PRAC. & REM. CODE ANN. 27.001, et seq. (Vernon Supp. 2012); R337. Under the Act, the claims against Relators must be dismissed unless the

Plaintiffs established, with clear and specific evidence, a prima facie case for each essential element of the claims. Id. 27.005. Barton and Wallbuilders (collectively Barton) filed a response to Relators motion to dismiss. R38-77. Barton conceded that all of the claims against Relators fell within the protection of the Citizens Participation Act. R38, p.1-2, R103, p.34. It is undisputed that the Act required that Barton establish each essential element of his defamation claims in response to Relators motion to dismiss. The motion to dismiss was argued on January 20, 2012, and denied on February 1, 2012. R98. Relators timely invoked the court of appeals jurisdiction under the Act by filing an interlocutory appeal of the trial courts order pursuant to section 27.008. R99, R100. The Second Court of Appeals found that section 27.008 did not establish a right of interlocutory appeal in this situation, where the trial court had signed an order
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denying a motion to dismiss. R113. In response to Relators request, the Court of Appeals treated the appeal as a petition for writ of mandamus. R114. The Court of Appeals then denied that petition without an opinion. R116. In addition to filing this petition for writ of mandamus, Jennings and Bell-Metereau have also filed a petition for review challenging the court of appeals determination that it lacked jurisdiction to consider an appeal of the trial courts order. That petition for review is pending under Case No. 12-0776.

SUMMARY OF ARGUMENT
This defamation case is based on a literally true sound-bite contained in a campaign video addressing hotly-debated political issues. Barton has sued two individual candidates for the State Board of Education who were not personally involved in the creation of the video at issue, and who had no reason to doubt the truth of the statement about Barton. The Texas Citizens Participation Act required Barton to establish with clear and specific evidence a prima facie case for each essential element of his defamation claim. An essential element of defamation is falsity. Barton failed to establish that element. The statement at issue is literally true, and in this context the statement was not misleading.
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Barton was also required to establish the constitutional element of actual malice. To establish actual malice, Barton must show that each candidate knew the statement at issue was false, or each had, in fact, entertained serious doubts about the truth of the statement. Barton produced no evidence of such knowledge or doubt. In the trial court Barton did not even argue that either candidate acted with actual malice. Instead, he relied solely on evidence relating to the state of mind of Relators political consultant, Scott Garrison, who was an independent contractor. Barton relies on a theory of respondeat superior, arguing that because Garrison was the agent of Relators, those individuals are vicariously liable for Garrisons alleged actual malice. This theory is completely without merit. The constitutional mandate of New York Times v. Sullivan prohibits liability based solely on an agency relationship. Under well-established First Amendment jurisprudence, an independent contractors actual malice will not be imputed to a principal. Bartons theory of vicarious liability also fails because Texas law of respondeat superior simply does not apply where there is an independent contractor relationship. Even if Relators could be vicariously liable for Garrisons alleged actual malice, Barton failed to establish that constitutional element as to Garrison as well. Nothing in the bits of circumstantial evidence that Barton points to constitutes clear and specific evidence that Garrison had entertained serious doubts about the truth of
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the statement at issue. Wallbuilders, Bartons corporate entities, failed to meet their burden under the Act for an additional reason. Their names were not mentioned in the video, and there was no evidence the statement was of and concerning those entities. Because Barton clearly failed to meet his burden under the Citizens Participation Act, the trial court abused its discretion in denying Relators motion to dismiss. The Act was intended to provide strong protections for citizens faced with meritless lawsuits that inhibit free speech and participation in government. With no way to correct the trial courts error on appeal, Relators will be deprived of the very protections the Legislature sought to create. Relators have no adequate remedy by appeal.

ARGUMENT
I. The trial courts denial of Relators motion to dismiss is grounds for mandamus relief. Mandamus relief is available when (1) a trial court clearly abuses its discretion, and (2) relief on appeal after a final judgment is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010).

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A trial court abuses its discretion when it fails to properly interpret the law, or apply the law to the facts, even when the law is unsettled. Prudential, 148 S.W. 3d at 135. As discussed in parts II - IV, the trial court was required to dismiss the claims against Relators because Barton failed to establish, with clear and specific evidence, a prima facie case for each essential element of the claims against Relators. As discussed in part V, Relators have no adequate remedy by appeal. A. The Texas Citizens Participation Act requires a trial court to dismiss certain claims unless they are established by clear and specific evidence.

The Texas Citizens Participation Act is designed to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time protect the rights of a person to file meritorious lawsuits for demonstrable injury. TEX. CIV. PRAC. & REM. CODE ANN. 27.002 (Vernon 2012). This statute is aimed at Strategic Lawsuits Against Public Participation, and is referred to as an anti-SLAPP statute. 2 See Jennings v. Wallbuilders Presentations, Inc., 378 S.W.3d 519, 521, n.1 (Tex. App. Fort Worth 2012, pet. filed).

Unless indicated otherwise, all statutory references in this brief are to chapter 27 of the Texas Civil Practice & Remedies Code. 14

Under the Act, when a person is sued for exercising the right of free speech, the right to petition, or the right of association, that person may immediately file a motion to dismiss the claim. Id. 27.003(a); 27.005(b). If the movant establishes that the legal action is based on, relates to, or is in response to the partys exercise of one of those constitutional rights, the trial court shall dismiss the legal action. Id. 27.005(b). A claim can survive a motion to dismiss only if the plaintiff establishes by clear and specific evidence a prima facie case for each essential element of the claim in question. Id. 27.005(c). B. Bartons burden under the Act.

Barton sued Relators for defamation and business disparagement based on a single phrase in the campaign video. To maintain these claims, Barton must show that Relators: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) which was false; (4) while acting with the constitutionally-required state of mind referred to as actual malice when the plaintiff is a public figure. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051, 119 S.Ct. 1358, 143 L.Ed.2d 519 (1999) (elements of defamation claim); see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000) (public figure has the burden to prove falsity as an essential element).

15

It is undisputed that Barton is a public figure. He had the burden to establish with clear and specific evidence that the statement at issue, like David Barton, known for speaking at white-supremacist rallies, was false. Turner, 38 S.W.3d at 116; Hearst Corp. v. Skeen, 159 S.W.3d 633, 636 n. 1 (Tex. 2005). Barton also had the burden to establish with clear and specific evidence that each individual relator knew that statement was false, or that each in fact entertained serious doubts as to its truth. Skeen, 159 S.W.3d at 638. As discussed below, Barton failed to establish these essential elements. Additionally, Wallbuilders failed to establish that the statement at issue was of and concerning either of those business entities. See part IV. II. Barton failed to establish the essential element of falsity. A. Barton failed to establish that he was not known for speaking at white-supremacist rallies.

The only evidence offered by Barton on the essential element of falsity was his own affidavit. R39. That affidavit states that after the two events in 1991, Barton 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 I would be speaking. R39, 23. The affidavit then states: Due to the affirmative steps I took after those events in 1991, it is accurate to state that, of the approximate eight thousand occasions where I have spoken, taught, or participated in meetings including in 1991, theses [sic] were the only two occasions that I am aware of where the leadership and overall support of
16

the event included persons allegedly with the sort of abhorrent, perverted twisting of sacred scripture attributed to the leadership of these groups in the sources quoted in [Relators] Motion to Dismiss. R39, 26. Barton concludes that 99.99975% of the events he has attended were not sponsored by white-supremacists (at least to the best of his knowledge), and this calculation shows that the statement that he is known for speaking at whitesupremacist rallies is not true. R39, 26-27. This opinion of the Plaintiff is no evidence of falsity. Unsupported conclusory opinions do not constitute evidence of probative force. City of San Antonio v. Pollack, 284 S.W.3d 809, 816 (Tex. 2009). Further, the conclusory calculation is simply not relevant. No matter how rare and distant such speaking engagements were, in 2010 Barton was still known for speaking at white-supremacist rallies. Barton may argue this is unfair, but that does not make the statement false. The uncontested evidence demonstrates that the statement was true. See evidence cited in Statement of Facts, parts I-III. In this Court, Barton now argues, for the first time and without any evidence, that the events he attended were not even white-supremacist rallies. See Response to Petition for Writ of Mandamus, p. 18. Barton completely failed to offer any evidence in support of this argument. In the trial court, Barton had the burden to
17

establish this claim, but he did not even try. In light of Scriptures for Americas open and unabashed hatred of Jews and homosexuals, it is not surprising that Barton did not attempt to establish in the trial court that their gatherings were not whitesupremacist rallies. He cannot now claim otherwise in this Court. B. Bartons implied libel claim cannot hold up under First Amendment protections for political speech.

Although the statement was literally true, Barton asserts a claim of implied libel. Response, p. 22. Barton argues that the phrasing implies that he currently speaks at white-supremacist rallies. Id. Bartons position is that it would be a closer call for Appellants had the statement read: Like David Barton, known for having spoken at white supremacist rallies. R103, p.45, Response, p.30. In the context of political speech, the First Amendment will not tolerate liability based on this level of grammatical scrutiny. The First Amendment has its fullest and most urgent application to speech uttered during a campaign for public office. Citizens United v. Federal Election Commn, 558 U.S. 310, 130 S.Ct. 876, 898, 175 L.Ed.2d 753 (2010). Speech about public affairs occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection. Snyder v. Phelps, U.S., 131 S.Ct. 1207, 1211, 179 L.Ed.2d 172 (2011). Public debate may include vehement, caustic, and sometimes unpleasantly sharp attacks.

18

New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex. 2004). Political speech, including sound-bite attacks, is the life-breath of democracy. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 52 (1st Cir. 2012); see also Isaacks, 146 S.W.3d at 154 (falsity for constitutional purposes cannot be based on a technical analysis of the statement). Barton argues that if the video had included additional facts, it would have created an entirely different effect. R38, p.17, Response p.22. Regardless of whether additional facts would have made Barton look better, under these circumstances there was no duty to include such facts. The video was pure campaign rhetoric. The single phrase at issue is not substantially misleading for failing to explain exactly why Barton was known for these speaking engagements, or for failing to include Bartons defense that he did not know they were Nazis. R11, p.5. A statement must be construed in light of the surrounding circumstances, taking the publication as a whole. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). Here, a reasonable viewer of this video would not expect to get the whole story as to Bartons activities, nor would they expect the video to be fair to Barton. See Isaacks, 146 S.W.3d at 154 (falsity depends upon the meaning a reasonable person would attribute to a publication).

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III.

Barton failed to establish the constitutional element of actual malice. A. Actual malice and reckless disregard are terms of art referring to a defendants subjective knowledge.

Barton does not dispute that he is a public figure. He concedes that he has the burden to prove, as an essential element of his cause of action, that the statement at issue was published with actual malice. McLemore, 978 S.W.2d at 571. The phrase actual malice is a term of art. Huckabee v. Time Warner Entmt Co., L.P., 19 S.W.3d 413, 420 (Tex. 2000). To establish actual malice, a plaintiff must prove that the defendant made the statement with the knowledge that it was false or with reckless disregard of whether it was true or not. Id. Constitutional actual malice does not include ill will, spite, or evil motive. Huckabee, 19 S.W.3d at 420. In debates on public issues, personal attitudes, even speaking out of hatred, will not be a factor used to inhibit debate. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 161-62 (Tex. 2004) (citing Letter Carriers v. Austin, 418 U.S. 264, 281, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (imposing liability on the basis of defendants hatred, spite, ill will, or desire to injure [is] clearly impermissible for speech protected by the First Amendment)). Statements which are honestly

believed, regardless of motive or attitude, are protected speech under this standard. Id.

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The term reckless disregard is also a term of art. Huckabee, 19 S.W.3d at at 420. To establish reckless disregard, a public official or public figure must prove that the defendant, in fact, entertained serious doubts as to the truth of the statement at the time it was published. Id.; Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005); Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Reckless disregard is a subjective standard. Skeen, 159 S.W.3d at 637; Bentley, 94 S.W.3d at 596. Mere negligence is not enough. Bentley, 94 S.W.3d at 591. In sum, to establish the prima facie element of actual malice in response to Relators motion to dismiss, Barton was required to show, with clear and specific evidence, that each of the Relators knew the statement was false, or in fact entertained serious doubts about the truth of the statement. As explained below, Barton completely failed to meet this burden. B. Barton was required to establish actual malice as to each individual Relator.

It is well-established that the constitutional requirement of actual malice must be individually shown as to each defendant. Price v. Viking Penguin, Inc., 881 F.2d 1426, 1446 (8th Cir. 1989); Secord v. Cockburn, 747 F. Supp. 779, 788 (D.D.C. 1990). Jennings and Bell-Metereau were not directly involved with the creation of the video. R17, 7-9, R21, 5-6. They relied on the individuals who were working on

21

the video to ensure the facts were true. Id. They believed the statements about David Barton were true. Id. There was absolutely no evidence, much less clear and specific evidence, that either candidate entertained any doubt about the truth of the statement, like David Barton, known for speaking at white-supremacist rallies. In fact, in the trial court, Barton made no attempt to demonstrate any such knowledge or doubt as to either of the individual candidates. Instead, Barton relied solely on a theory of vicarious liability. R38, p.19. Barton argued that political consultant Scott Garrison was acting as Relators agent, and that Relators were therefore liable for Garrisons alleged actual malice. R38, p.6, R103, p.45-46. C. Relators cannot be liable for the alleged actual malice of a political consultant acting as an independent contractor.

Vicarious liability for an individuals actual malice can only be established through the doctrine of respondeat superior. Price, 881 F.2d at 1446; see also McFarlane v. Esquire Magazine, 74 F.3d 1296, 1303 (D.C. Cir. 1996) (because actual malice is predicated on a subjective state of mind, vicarious liability should not extend beyond respondeat superior). Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or

22

employer has not personally committed a wrong. Baptist Meml Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). But when the agent is an independent contractor, the agents actual malice will not be imputed to the principal. This result is mandated by both First

Amendment jurisprudence and by Texas common law. 1. Mere agency is not enough to establish the constitutional requirement of actual malice.

Starting with the landmark case of New York Times v. Sullivan in 1964, the mere existence of an agency relationship will not satisfy the actual malice requirement. In New York Times v. Sullivan, the individual petitioners names were listed as endorsing the advertisement at issue. New York Times v. Sullivan, 376 U.S. 254, 257, 84 S.Ct. 710, 713-14, 11 L.Ed.2d 686 (1964). The United States Supreme Court held that, even assuming these individuals had authorized the use of their names, there was no evidence that they were aware of any erroneous statements or were reckless in that regard. The judgment against those individuals was held to be unconstitutional under the new requirement of actual malice. 376 U.S. at 286; 84 S.Ct at 729. With that holding, the Supreme Court refused to impute to the

individuals as principals any information in the minds of persons they authorized to act as their agents in the matter. McFarlane, 74 F.3d at 1302; see also Masson v.

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New Yorker Magazine, 832 F. Supp. 1350, 1371 (N.D. Cal. 1993) (New York Times v. Sullivan required more than mere agency to impose vicarious liability). Since New York Times v. Sullivan, courts have repeatedly and consistently held that, as a matter of constitutional law, the mere existence of an agency relationship will not satisfy the actual malice requirement. See McFarlane, 74 F.3d at 1302-04 (refusing to extend vicarious liability to agents and limiting such liability to employees); Masson, 832 F. Supp. at 1370 (after New York Times, lower courts have explicitly held that agency does not impose liability); see also D.A.R.E America v. Rolling Stone Magazine, 101 F. Supp. 2d 1270, 1279-80 (C.D. Cal. 2000) (where author was not an employee, magazine was not liable for authors knowledge of fabrications). As one court noted, the stringent standards required by the First Amendment make application of agency theory inappropriate in this context. Murray v. Bailey, 613 F. Supp. 1276, 1281 (N.D. Cal. 1985). 2. The actual malice of an independent contractor cannot be imputed to the principal.

Scott Garrison was an independent contractor. R38, p. 5-6, R82, p. 42-45, R85-86. Established First Amendment jurisprudence does not allow the actual

malice of an independent contractor to be imputed to a defendant. Hunt v. Liberty Lobby, 720 F.2d 631, 648 (11th Cir. 1983) (state of mind of an independent contractor,

24

for purposes of finding actual malice, may not be imputed to the publisher); Masson, 832 F. Supp. at 1373 (no authority to support a finding that an agency relationship could serve to impute liability to a publisher in the absence of an employment relationship). Secord v. Cockburn, 747 F.Supp. 779, 787 (D.C.C. 1990) (plaintiff cannot rely on the theory of respondeat superior to impute evidence of actual malice where author is an independent contractor). While as a matter of general principle, an independent contractor may be an agent, the common law doctrine of agency does not involve the constitutional dimension presented in an actual malice case. Masson, 832 F. Supp. at 1371. Because the constitutional mandate of New York Times v. Sullivan prohibits liability based solely upon an agency relationship, a principal will not be liable based on the actual malice of an independent contractor. Id. at 1372; see also McFarlane, 74 F. 3d at 1303 (actual malice is a First Amendment protection predicated on a subjective state of mind, which surely cuts against any extension of vicarious liability beyond respondeat superior). 3. Texas law does not support vicarious liability for acts of an independent contractor.

Even outside the constitutional mandate of New York Times v. Sullivan, in this case Texas law does not impose vicarious liability on Relators because Garrison was

25

an independent contractor. See Baptist Meml Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (individual or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person). Garrisons status as an independent contractor cannot be disputed. This relationship was clearly set out in his contract. R85-86, R82, p.42-45. A contract expressly providing that a person is an independent contractor is determinative of the relationship, absent evidence that the contract is a mere sham or subterfuge. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App. Fort Worth 2009, pet. denied); see also S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 853 (Tex. App. Dallas 2011, no pet.)(same). consulting firm stated: The relationship of Stanley-Garrison to Client hereunder is solely that of an independent contractor and not an employee of Client under the Agreement. ... The Client will neither direct nor control the work and services of StanleyGarrison pursuant to this Agreement. R82, p.42-45, R85, R86. Even if the contract itself did not clearly establish Garrison as an independent contractor, there is no evidence that he was anything but an independent contractor, rather than an employee. The test as to whether an individual is an independent contractor or an employee is whether the employer had the right to control the Relators contract with Garrisons

26

progress, details, and methods of operations of the work. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002). An employer controls not merely the end sought to be accomplished, but also the means and details of its accomplishment. Id. Examples of the type of control normally exercised by an employer include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278-79 (Tex. 1990). None of those control factors exist here. 3 Relators only controlled the end sought to be accomplished, which was to post a campaign video on YouTube. R17, 5-7, R21, 3-5. Scott Garrison coordinated the actual production of the video and fact-checked the statement about David Barton without any direction from Relators. R4, 5, R82, p.75-77. There is no evidence

that either Relator was even aware of Garrisons specific fact-checking activities at

Bartons Response cites to emails that he claims show Rebecca Bell-Metereau wanted changes made to the video. Response, p. 13. The emails cited indicated that Bell-Metereaus campaign manager did not want to use an early version of the video because the announcer had dropped Bell-Metereaus last name. R89, p. 421, 465. This is not the kind of control over details that would destroy the independent contractor relationship. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 588 (Tex. 1964) (sporatic action by a principal in directing the details of the work will not destroy the nature of the independent contractor relationship).
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the time. Barton completely failed to demonstrate that Garrison was an employee of either of the two individual candidates. As stated by the Texarkana Court of Appeals, Where an employer has the right to control only the results or the end sought to be accomplished and the contracting party independently determines the details and means of accomplishing that result, an independent contractor relationship exists, and the rule of respondeat superior has no application. Chandler v. Cash, 20 S.W.3d 69, 72 (Tex. App. Texarkana 2000, pet. denied). Because the rule of respondeat superior has no application in this case under Texas law, there is an additional reason that any alleged actual malice of Garrison cannot be imputed to the two individual candidates. D. No evidence or law supports Bartons most recent legal theory of direct liability.

In the trial court, Bartons sole legal theory was that Relators can be held strictly liable based on the state of mind of a political consultant working as an independent contractor. R 38, p. 19. As demonstrated above, that theory of liability fails under both First Amendment jurisprudence and under Texas law. In this Court, Barton argues, for the first time and with no evidence, that the individual candidates Jennings and Bell-Metereau each published the statement at issue with the requisite

28

knowledge of falsity. Response, p. 26-27. The evidence offered in support of this new theory is that Relators knew their campaigns were using negative smear tactics, but they did nothing to assure what was being said was true. Response, p. 27. This argument is simply an allegation that the candidates may have been negligent in trusting their campaign teams to get the facts straight. It is well-established that mere negligence cannot establish actual malice. Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002).4 There was no evidence that either Jennings or Bell-Metereau personally had any reason to doubt the truth of the statement at issue.5 Bartons Response

erroneously conflated the element of publication with the element of actual malice. Relators authorized their campaign teams to post the video on YouTube. But Barton must also prove that Relators, in giving their authorization, each had the requisite subjective state of mind to establish actual malice. He completely failed to

Bartons claim that Jennings did some random fact-checking herself, is no evidence of actual malice. See Bartons Response, p. 27. The evidence cited was an email that showed only that Jennings husband asked her about a particular unrelated statistic recited in the video, and she explained the basis for that number. R89, p.462, 461. The statement of facts in Bartons Response incorrectly suggests that Jennings was consulted in connection with the videos white-supremacist statement. The emails cited indicated that Jennings was to be presented with the question of whether to contact a PolitiFact reporter about her opponents allegation about a poll question. R89, p.253, 299-301. The poll question did not mention any names. R93.
29
5

establish this element. In fact, Barton made no attempt to do so in the trial court, where he relied exclusively on the state of mind of Scott Garrison. But the Act required that Barton establish, with clear and specific evidence, that both Judy Jennings and Rebecca BellMetereau personally knew the statement about David Barton was false, or that they each, in fact entertained serious doubts as to the truth of that statement. Skeen, 159 S.W. at 637; Bentley, 94 S.W.3d at 591; Huckabee, 19 S.W.3d at 420. There simply was no such evidence. E. There was no clear and specific evidence to support the claim that Garrison acted with actual malice.

Even if Scott Garrisons state of mind could be imputed to Relators, Barton failed to establish that Garrison knew the statement was false, or that he entertained serious doubts about the truth of the statement. In mid-September 2010, Garrison investigated whether an advisor to the SBOE was known for speaking at white-supremacist rallies. R82, p.77, p.244.
6

At that

point he became aware that the original version of the video contained an error. R82, p.74-76. The video had mistakenly stated that Peter Marshall was known for speaking at white-supremacist rallies. Id., R89, p.459-60.
6

Emails indicate that the issue was drawn to Garrisons attention when questions were raised about a polling question used by Jennings campaign. See R89, p.253-256.
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Garrison was provided with a Texas Freedom Network article confirming that it was Barton, and not Marshall, who was the SBOE expert who was known for such speaking engagements. R89, p.244; R82, p.76-78, p.83, p.104-105. Garrison then called a contact at Texas Freedom Network who confirmed the truth of the statement. R82, p.94. After Garrison was satisfied that this information about Barton was true, the video was corrected to state, like David Barton, known for speaking at whitesupremacist rallies. R89, p.237, 240-44. Barton claims that Garrision should have done more to confirm this information. Response, p.13. While a failure to investigate can be evidence of actual malice, it is relevant only when the defendant, suspecting that his information was not true, deliberately avoids discovering the truth. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692, 109 S.Ct. 2678, 2698, 105 L.Ed.2d 562 (1989) (although failure to investigate will not support a finding of actual malice, the purposeful avoidance of the truth is in a different category). Here, Garrison did not avoid the truth. It is uncontested that the facts stated in the Texas Freedom Network article were true. In this instance, there is no claim that the source Garrison relied upon got the facts wrong. In a complete red-herring point, Barton also claims that one of the original sources for this information, a 1994 Anti-Defamation League report, was somehow
31

later discredited. Response, p.11. In support, Barton points to an unsworn and undated letter from one of his supporters criticizing that 1994 publication. See R77. The statement in that letter is not evidence that the ADL ever retracted any part of the report relating to Barton and Scriptures of America. Further, the letter does not refute the fact at issue here, which is that Barton did speak at Christian Identity gatherings, a fact his own affidavit confirms. R12, p. 55-56, R39, p. 4, R10. Barton has also focused on Garrisons liberal bias, and the goal of some individuals on Relators campaign teams to put the conservative SBOE members in a negative light. Response, p.12-13, 15, 25. Although a court may consider bias and motive as circumstantial evidence of the defendants state of mind, courts must be careful not to place too much reliance on motive or care. Bentley v. Bunton, 94 S.W.2d 561, 591 (Tex. 2002). Being a liberal and wanting to paint a conservative opponent in a negative light will not support a finding of actual malice. See New Times, Inc. v Isaacks, 146 S.W.3d 144, 162 (Tex. 2004) (statements which are honestly believed are protected regardless of motive or attitude). There was no evidence, circumstantial or otherwise, that Garrison did not honestly view David Barton as an extremist or that he had any doubts that Barton was known for speaking at white-supremacist rallies.

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IV.

Wallbuilders established no claim for defamation or business disparagement. Bartons corporate entities Wallbuilders were not even mentioned in the

video, yet they sued Relators for defamation and business disparagement. It is basic defamation law that to be actionable, the statement at issue must be of and concerning the plaintiff. Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960) (essential element of a libel claim); Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) (essential element of business disparagement claim). Where a libel plaintiff is not named in the publication at issue, there must be proof that persons acquainted with the plaintiff would understand the publication to refer to him. Cox Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433-34 (Tex. App. Austin 2007, pet. denied). There was no such proof in this case. Wallbuilders has simply alleged a derivative libel claim, and no such cause of action exists. Kirsh v. Liberty Media Corp., 449 F.3d 388, 398 (2nd Cir. 2006). Because Barton failed to establish, with clear and specific evidence, the of and concerning element as to either Wallbuilder corporate entity, the trial court abused its discretion in denying Relators motion to dismiss those claims.

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V.

Relators have no adequate remedy by appeal. As demonstrated above, Barton failed to establish a prima facie case of the

essential elements of his claims against Relators. The trial courts denial of Relators motion to dismiss pursuant to the Citizens Participation Act was a clear abuse of discretion. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (trial court has no discretion in determining what the law is or applying the law to the facts). Relators have also met the second requirement for mandamus relief; they have no adequate remedy by appeal. Id. at 135-36. The word adequate has no comprehensive definition, and it resists categorization. Id. at 136. Whether an appellate remedy is adequate so as to preclude mandamus review depends heavily on the circumstances presented. Id. at 137. This Court has found that a party has no adequate remedy when an appellate court will not be able to cure the error and enforce the statutory scheme at issue after trial. In re Jordan, 249 S.W.3d 416, 420 (Tex. 2008) (granting mandamus relief where statute prohibited pre-suit depositions until an expert report had been served). In Jordan, this Court found mandamus appropriate in order to protect the Legislative scheme of decreasing the costs associated with meritless lawsuits by staying discovery until expert reports had been filed. Id.
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This Court has also found that an appellate remedy is inadequate when a trial court improperly refused to enforce a forum selection clause or an arbitration agreement. In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (forum selection agreement); In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (forum selection agreement); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (arbitration agreement). In those situations, mandamus would issue because failure to do so would vitiate and render illusory the subject matter of an appeal. Id. Both rationales apply in this case. Failure to provide mandamus relief will mean these and other defendants across the state will be denied the benefits of the statutory scheme established by the Legislature in the Citizens Participation Act. It will also render illusory the very protections the Legislature intended to create. A. Mandamus is necessary to protect the legislative scheme.

The Act created strong protections for a citizen faced with a meritless lawsuit based on the exercise of the right of free speech. TEX. CIV. PRAC. & REM. CODE ANN. 27.001, et seq. (Vernon Supp. 2012). First, a defendant is entitled to a speedy dismissal of such claims. Id. 27.003; 27.004; 27.005. The statutory scheme is designed to promptly remove the chilling effect that an ongoing lawsuit has on the exercise of free speech. It also relieves the citizen of the financial burden of going through costly discovery. Id. 27.003(c) (all discovery is suspended until the court
35

rules on the motion to dismiss). Without mandamus relief to correct the trial courts clear error, Relators will be deprived of these protections and the Legislative scheme will be substantially undermined. 7 Second, under the Act, Relators are entitled to recover their court costs, reasonable attorneys fees, and other expenses incurred in defending against the legal action as justice and equity may require. Id. 27.009. Although the trial courts error theoretically could be addressed after a final judgment, Relators still face the challenge of funding their defense. Further, the Second Court of Appeals opinion suggests that because Relators have no right of appeal under the Act, Relators right to such an award was completely lost when the trial court denied their motion to dismiss, regardless of whether the denial was in error. See Jennings v. Wallbuilder Presentations, Inc., 378 S.W.3d 519, 529 (Tex. App. Fort Worth 2012, pet. filed) (once the trial court timely rules, even erroneously, the inquiry is over). The uncertainty about enforcing the Acts provision for costs and attorneys fees reaches beyond this individual case. Without mandamus relief or an

interlocutory appeal, a party must wait until after an appeal of the final judgment to

Relators in their petition in Case No. 12-0776 contend the Act does provide for an interlocutory appeal of the trial courts order in this case. The Second Court of Appeals disagreed, and unless that decision is reversed, Relators will continue to have no remedy by appeal.
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obtain a finding that the trial court erred in denying a motion to dismiss. At that point, the Act requires that the movant be awarded her costs and attorneys fees. This raises the question, will the plaintiff be liable for fees and costs through trial and appeal? If so, a mandamus correcting the trial courts error up front, before those costs and fees are incurred, would benefit both the citizen defendant and an unsuccessful plaintiff. B. Mandamus is necessary to resolve important statutory and First Amendment issues.

This case fits within the types of issues for which mandamus review is not only appropriate but necessary. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004). The case turns on important issues of law. They are issues of first impression that should be resolved by this Court, and they are likely to recur. Id. Additionally, in enacting the Citizens Participation Act, the Legislature intended to provide for appellate review at an early stage. 27.008 (b) & (c). In providing for an expedited appellate review of a trial court order, the Act refers to both an appeal or other writ. With this phrase, the Legislature indicated that a party should be able to seek mandamus relief where an appeal is not an adequate remedy. Last, this Court should correct the trial courts failure to apply the law because of its implications for the democratic process in Texas. Relators were candidates for

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public office. They are being sued for a literally true statement in a campaign video prepared by an independent contractor. The trial courts order means that these candidates can be held personally liable based on the alleged actual malice of an independent contractor working on their campaign. Without clarification from this Court, citizens running for public office will face unprecedented risks of liability. VI. Relators have timely invoked jurisdiction for mandamus relief. The Citizens Participation Act provides that an appeal or other writ under this section must be filed on or before the 60th day after the date the trial courts order is signed or the time prescribed by Section 27.005 expires, as applicable. TEX. CIV. PRAC. & REM. CODE ANN. 27.008(c) (Vernon Supp. 2012). Relators filed an interlocutory appeal six days after the trial court order was signed. R99. On March 23, 2012, which was 51 days after the trial court order had been signed, Relators filed their Brief of Appellants. R100. The brief was marked received on March 27, 2013, which was 55 days from the date of the trial court order. R100. Although the brief was in support of an interlocutory appeal, it also contained the same substantive requirements as a petition for writ of mandamus. R100. As appellee in the court of appeals, Barton argued that the Act did not create an interlocutory appeal in this situation, where the trial court had denied the motion
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to dismiss by written order. In response to this argument, Relators filed a motion with the court of appeals requesting that their interlocutory appeal be considered, in the alternative, as a petition for writ of mandamus. R111. The court of appeals granted Relators motion, and accordingly the appeal was treated as a petition for writ of mandamus. R114. The court of appeals denied Relators petition for writ of mandamus on August 21, 2012. R116. A. The court of appeals had the authority to treat the interlocutory appeal as a petition for writ of mandamus.

Barton now claims that the court of appeals erred in treating the appeal as a petition for writ of mandamus. Barton argues that the Act requires that an appellate pleading must expressly request mandamus relief within 60 days of the trial courts order. See Supplement to Response to Petition for Writ of Mandamus, p.7-8. Barton did not make this argument in the court of appeals. As this Court has noted, nothing in the procedures for interlocutory appeals and mandamus actions prevents a court from treating an appeal as a petition for writ of mandamus. CMH Homes v. Perez, 340 S.W.3d 444, 453(Tex. 2011). In this case, as in CMH Homes, the only difference between the appellate brief and a petition for writ of mandamus were the title on the cover, and a certification (which was filed with the motion). Id.

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The differences between an opening appellate brief and a petition for writ of mandamus are harmless procedural defects and should not be grounds for dismissal. See CMH Homes, 340 S.W.3d at 453 (Texas policy as embodied in our appellate rules disfavors disposing of appeals based upon harmless procedural defects). See also In the Interest of J.P.L., 359 S.W.3d 695, 703 (Tex. App. San Antonio 2011, pet. denied) (construing an interlocutory appeal as a petition for writ of mandamus after a challenge to appellate jurisdiction was raised); Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 879 (Tex. App. Houston [14th Dist.] 2011, no pet.) (same); see also In re R.G., 388 S.W.3d 820, 822 (Tex. App. Houston [1st Dist.] 2012, no pet.) (following CMH Homes and granting relators request that, if the court concludes it does not have appellate jurisdiction, that it construe his appeal as a petition for writ of mandamus). It is uncontested that Relators interlocutory appeal was a bona fide attempt to invoke the appellate courts jurisdiction. See CMH Homes, 340 S.W.3d at 452-53 (factor in determining whether jurisdiction has been conferred on the appellate court is whether the instrument was filed in a bona fide attempt to invoke appellate court jurisdiction). It is uncontested that this attempt to invoke the appellate courts jurisdiction was done well within the 60-day deadline provided in the Act. Relators met the Acts simple requirement that an appeal or other writ be filed within 60
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days after the trial court signed an order on a motion to dismiss. B. Bartons jurisdictional argument has no support in the Act.

Barton successfully argued in the court of appeals that it lacked jurisdiction over Relators interlocutory appeal. Barton now argues in this Court that the court of appeals lacked mandamus jurisdiction as well. Supp. Response, p. 9. Barton also argues that this Court lacks mandamus jurisdiction because the Act required Relators to bypass the court of appeals and file a mandamus petition with this Court within 60 days after the trial court order was signed. Supp. Response, p.9. Bartons jurisdictional argument fails because the Legislature simply required that a party invoke appellate jurisdiction, by appeal or other writ within 60 days. That was done in this case. By filing an interlocutory appeal, Relators invoked appellate jurisdiction. By filing a brief that contained all of the substantive

requirements for a petition for writ of mandamus, Relators also timely invoked the court of appeals mandamus jurisdiction under the Act. The Act does not require that Relators must specifically invoke mandamus jurisdiction as opposed to appellate jurisdiction. Any other result would be contrary to the Legislatures mandate that the Act be construed liberally. 27.011(b) (This chapter shall be construed liberally to effectuate its purpose and intent fully). Such a result would also be contrary to this
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Courts policy that appellate courts will not exalt form over substance. CMH Homes, 340 S.W.3d at 453; see also Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (adopting a functional approach to interlocutory appeal of a trial court order and rejecting formalistic approach); Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 351 (Tex. 2001) (Hecht,. J., dissenting) (Texas Supreme Court has consistently and vigorously rejected catapulting form over substance in the interlocutory appeal context). Bartons argument that section 27.008(c)s 60-day deadline deprives this Court of mandamus jurisdiction is also without merit. In determining whether a statutory provision is jurisdictional, this Court applies statutory interpretation principles. City of DeSoto v. White, 288 S.W.3d 389, 394-95 (Tex. 2009). The Court will presume that the Legislature did not intend to make a provision jurisdictional, a presumption overcome only by clear legislative intent to the contrary. Id.; see also Roccaforte v. Jefferson County, 341 S.W.3d 919, 925 (Tex. 2011) (addressing notice requirements in the Texas Local Government Code). Nothing in section 27.008(c) or the Citizens Participation Act in general demonstrates a legislative intent to deprive this Court of its broad mandamus jurisdiction. See generally In re Reece, 341 S.W.3d 360, 373 (Tex. 2011) (Supreme Courts constitutional and statutory grant of mandamus jurisdiction is broad).
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The consequences of Bartons argument are that defendants would lose their right to petition this Court unless they bypass the court of appeals. Although this Court has concurrent jurisdiction with the courts of appeal to grant mandamus relief, the Texas Rules of Appellate Procedure mandate a relator first seek relief in the court of appeals. In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003). Rule 52.3(e) provides that a party may bypass the court of appeals only for a compelling reason. TEX. R. APP. P. 52.3(e). The Legislature did not intend to establish a compelling reason to bypass the courts of appeals with the language in section 27.008(c). Since the Legislature is bound to know the consequences of making a requirement jurisdictional, one must ask, in trying to determine legislative intent, whether the Legislature intended those consequences. City of DeSoto, 288 S.W.3d at 395 (quoting Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004)). The Legislature clearly did not intend the consequences of requiring defendants to file a petition for mandamus relief with this Court without first presenting it to the court of appeals. Bartons construction of section 27.008(c) as a limitation on this Courts jurisdiction must fail. The Acts 60-day requirement was met when Relators filed a brief that substantially complied with the filing requirements for both an interlocutory appeal
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and a petition for writ of mandamus. The brief was filed with the court of appeals 55 days after the trial courts order was signed. Having met that requirement, nothing in the Act suggests that Relators were barred from seeking mandamus relief, either from the court of appeals or from this Court. PRAYER FOR RELIEF Barton failed to meet his burden under the Texas Citizens Participation Act and the trial court abused its discretion in denying Relators motion to dismiss. Relators have no adequate remedy by appeal. Relators pray that this Court grant their petition for writ of mandamus, order the trial court to dismiss the legal action against Relators pursuant to the Texas Citizens Participation Act and order the trial court to conduct further proceedings to allow Relators to recover their court costs and reasonable attorneys fees.

Respectfully submitted,
GEORGE BROTHERS KINCAID & HORTON, L.L.P.

114 W. 7th Street, Suite 1100 Austin, Texas 78701 Telephone: (512) 495-1400 Telecopier: (512) 499-0094

By:
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/s/ Julie A. Ford

R. James George, Jr. State Bar No. 07810000 Julie A. Ford State Bar No. 07240500

CERTIFICATE OF COMPLIANCE I certify that the number of words in this computer-generated document, excluding the items to be excluded pursuant to Rule 9.4, Texas Rules of Appellate Procedure, is 10,050.

/s/ Julie A. Ford

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was electronically filed with the Clerk of the Court using the electronic case filing system of the Court. I also certify that a true and correct copy of the foregoing was served via e-service and U.S. First Class Mail on the following counsel of record on April 8, 2013: Edward P. Watt Robert J. Bozelli WATT LAW FIRM 141 East Mercer Street, Suite C Dripping Springs, Texas 787620 Counsel for Appellees /s/ Julie A. Ford Julie A. Ford

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