The Texas Supreme Court upheld the right of an anti-abortion activist to call abortion advocacy groups criminal enterprises and emphasized the state’s 1921 law criminalizing abortion is in force.
In the majority and the concurring opinions issued Feb. 24, the Supreme Court took on three abortion advocacy groups that hoped to proceed with defamation claims in state trial courts against anti-abortion activist Mark Lee Dickson and his organization Right to Life East Texas.
Two courts of appeals came to different conclusions, with the Seventh District finding the defendants’ statements protected political speech and the Fifth District finding Dickson’s statements inconsistent with the Penal Code and permitting the defamation suit to continue.
Justice Jane Bland, writing for the court, held the statements “are protected opinion about abortion law made in pursuit of changing that law, placing them at the heart of protected speech under the United States and Texas Constitutions.”
Dickson, during the course of a “Sanctuary City for the Unborn” campaign meant to get local municipalities in Texas to pass resolutions declaring themselves sanctuary cities, used promotional materials and social media that included statements such as abortion groups were criminal organizations and murderers.
During oral argument last October, Jennifer Ecklund of Thompson Coburn, the attorney for Lilith Fund for Reproductive Equity, Texas Equal Access Fund and Afiya Center, said, “People are afraid to express their view for fear that they will also be called literal criminals who might be prosecuted, based on things that they believe were totally constitutional based on this court’s pronouncements and the U.S. Supreme Court’s pronouncements.”
Bland noted the statements were made before Roe v. Wade was overturned and amid decades of fervent debate regarding the morality and legality of abortion.
“Equally apparent is that such statements reflect an opinion about morality, society, and the law,” Bland wrote. “The collective impression is not that Dickson was disseminating facts about particular conduct, but rather advocacy and opinion responding to that conduct. Dickson invited the reasonable reader to take political action.”[…]
The majority opinion affirmed the Seventh District appeals court ruling and reversed the Fifth District’s ruling, remanding both to their respective trial courts for entry of dismissal orders.
See here and here for the background. I was obviously way too optimistic about this one. I can see the Court’s reasoning but I think they got it wrong. Not much else to say. Bloomberg Law has more.