defamation claim in Texas

2022To prevail on a defamation claim, public officials and public figures must prove that the defendant published a defamatory falsehood with “actual malice.” WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

2022Accordingly, the ecclesiastical abstention doctrine bars any claim for defamation based on Bookout’s statement that Shelley is a “sodomite.” Finally, we consider the allegedly defamatory statements contained in the termination letter sent to Shelley.11 While Appellees’ petition does not identify any 11 It is unclear whether Appellees, in fact, assert a defamation claim based upon the statements contained in the termination letter, and it is also unclear whether such statements were “published.” See WFAA–TV, 978 S.W.2d at 571 (listing publication among the elements of a defamation claim).

2026To survive TCP A dismissal of a defamation claim, the claimant must show "the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff." Id. at 591 . <j[13 Second, a claim for tortious interference with business relations "require[s] [the claimant] to prove that the tortious conduct at issue-here, defamation- caused it to suffer economic damages." Landry's, Inc. v. Animal Legal Def Fund, 7 631 S.W.3d 40 , 53 (Tex. 2021). 3 B.

2026In the context of a claim for defamation per se, a party need not offer proof of actual damages to establish a prima facie case under step two of the review process for a TCPA dismissal motion because “[p]leading and proof of particular damage is not required to prevail on a claim of defamation per se, and thus actual damage is not an essential element of the claim to which the TCPA’s burden of clear and specific evidence might apply.” Lipsky, 460 S.W.3d at 596 (holding that while the plaintiff’s affidavit on damages may have been insufficient to substantiate its claim to special damages, it w

2021Opinion “[S]tatements that cannot be verified, as well as statements that cannot be understood to convey a verifiable fact, are opinions.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018). “[S]tatements that are not verifiable as false cannot form the basis of a defamation claim.” Neely, 418 S.W.3d at 62 .

2019Public Figure or Public Official Status To succeed on a defamation claim, private plaintiffs must prove that the defendant was at least negligent, whereas public officials and public figures must establish a higher degree of fault—they must prove that the defendant published a defamatory falsehood with actual malice, that is, with “knowledge that it was false or with reckless disregard of whether it was true or not.” Neely v. Wilson, 418 S.W.3d 52, 69 (Tex. 2013); see also New York Times Co. v. Sullivan, 376 U.S. 254 , 279–80, 84 S. Ct. 710, 726 (1964); New Times, Inc. v. Isaacks, 146 S.W.3d 1

2013In Neely , the Supreme Court clarified its prior opinion in McIlvain v. Jacobs, 794 S.W.2d 14 (Tex.1990), explaining that accurate reporting of third-party allegations, standing alone, is not enough to satisfy the substantial truth defense; rather, if a media defendant “reports that allegations were made and an investigation proves those allegations to be true, the defamation claim is brought within the scope of the substantial truth defense.” Id. at *8.

2013In Neely, the Supreme Court clarified its prior opinion in McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990), explaining that accurate reporting of third- party allegations, standing alone, is not enough to satisfy the substantial truth defense; rather, if a media defendant “reports that allegations were made and an investigation proves those allegations to be true, the defamation claim is brought within the scope of the substantial truth defense.” Id. at *8.

2023See Bentley, 94 S.W.3d at 585 (limiting defamation claims only to statements premised on objectively verifiable facts). 28 Warren has not directed us to any authority, nor have we located any, holding that a person can assert a “verifiable fact” for purposes of a defamation claim when the context of those statements makes clear that the “fact” is based on another subjective opinion of the speaker.

2018See, e.g. , Salinas v. Salinas , 365 S.W.3d 318 , 319 (Tex. 2012) (per curiam) (discussing a defamation claim in which defendant accused plaintiff of being "a drug dealer and a corrupt politician," who had "stolen and lied and killed"); Bentley , 94 S.W.3d at 569 (discussing public official's defamation action based on plaintiff's statement that "y'all are corrupt, y'all are the criminals, [and] y'all are the ones that oughta be in jail"); Leyendecker & Assocs., Inc. v. Wechter , 683 S.W.2d 369 , 374 (Tex. 1984) (holding that a letter's explicit accusation that plaintiff "committ[ed] a crimina

2026See Tatum, 554 S.W.3d at 638 (explaining that “[a] statement that fails either test—verifiability or context [showing that it was not intended as a factual assertion]—is called an opinion”); Steinhagen v. MC Trilogy Tex., LLC, No. 05-24- 00325-CV, 2025 WL 3758909 , at *6–8 (Tex. App.—Dallas Dec. 29, 2025, no pet. h.) 9 (holding that TCPA dismissal was warranted because YouTube host’s statements that people who posed a threat to the plaintiff “may go by the wayside” and that their lives “will be in jeopardy” were “unverifiable assertion[s] about possible future events” and could not support the

2022See Tatum, 554 S.W.3d at 638 (explaining that “[a]ccusing someone of a crime” or making “[r]emarks that adversely reflect on a person’s fitness to conduct his or her business or trade are also deemed defamatory per se” (quoting In re Lipsky, 460 S.W.3d at 596 )); Greer v. Abraham, 489 S.W.3d 440, 447 (Tex. 2016) (noting that, for purposes of a defamation analysis, “a charge of criminal conduct, no matter how remote in time or 24 place, can never be irrelevant to an official’s or a candidate’s fitness for office” (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971)); Hancock, 400 S.W.3

2022See Turner, 38 S.W.3d at 119 (holding that a plaintiff can bring a defamation claim based on a false and defamatory impression created by omitting material facts or misleading juxtaposition).

2018In addition, a publication “can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all of the story’s individual statements considered in isolation were literally true or non-defamatory.” Neely, 418 S.W.3d at 64 (quoting Turner, 38 S.W.3d at 114 ). “[S]tatements that are not verifiable as false cannot form the basis of a defamation claim.” Neely, 418 S.W.3d at 62 .

2007In addition, items 14 and 15 are summaries of U.S. Supreme Court cases, Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), and Gertz v. Robert Welch Inc., 418 U.S. 323 (1974), respectively, that were previously cited by Tucker in his motion to amend the defamation claim.

2007In addition, items 14 and 15 are summaries of U.S. Supreme Court cases, Curtis Publishing Co. v. Butts , 388 U.S. 130 (1967), and Gertz v. Robert Welch Inc. , 418 U.S. 323 (1974), respectively, that were previously cited by Tucker in his motion to amend the defamation claim.

2022See Tatum, 554 S.W.3d at 638 (explaining that “[a]ccusing someone of a crime” or making “[r]emarks that adversely reflect on a person’s fitness to conduct his or her business or trade are also deemed defamatory per se” (quoting In re Lipsky, 460 S.W.3d at 596 )); Greer v. Abraham, 489 S.W.3d 440, 447 (Tex. 2016) (noting that, for purposes of a defamation analysis, “a charge of criminal conduct, no matter how remote in time or 24 place, can never be irrelevant to an official’s or a candidate’s fitness for office” (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971)); Hancock, 400 S.W.3

2020See Waste Mgmt. of Tex., 434 S.W.3d at 160 (upholding awards of special and exemplary damages while holding evidence of general damages to reputation legally insufficient); Hancock, 400 S.W.3d at 71 (observing that special damages such as the loss of a business referral might support a defamation claim upon proof).

2016Roe v. Walls Reg'l Hosp., Inc., 21 S.W.3d 647, 651 (Tex.App.-Waco 2000, no pet.).

2007See Johnson v. Baylor Univ. , 188 S.W.3d 296, 301 (Tex. App.--Waco 2006, pet. denied); Roe v. Walls Reg'l Hosp., Inc. , 21 S.W.3d 647, 651 (Tex. App.--Waco 2000, no pet.); Langston v. Eagle Pub.

2018Therefore, in the context of a defamation claim based upon communications made by a peer review committee, a plaintiff must show actual malice by demonstrating that the defendant made a false and defamatory statement of fact “with knowledge that it was false or with reckless disregard of whether it was false or not.” See Van Der Linden v. Khan, 535 S.W.3d 179 , 202 n.12 (Tex. App.—Fort Worth 2017, pet. denied) (citing v. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)).

2012In Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989), the court discussed the “could have been readily controverted” requirement of rule 166a(c) in the context of a defamation claim made by a public figure.

2021Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); see also Tex. Civ.

2020Compare Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought by private individuals, truth is an affirmative defense to slander.”) and Town of S. Padre Island v. Jacobs, 736 S.W.2d 134, 140 (Tex. App.—Corpus Christi–Edinburg 1986, writ denied) (“For years the courts of Texas have recognized that in libel and slander actions, truth of the defamatory statements is an affirmative defense, the burden of proving truth being placed on the defendant.”) with Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (“The elements of a prima facie case for defamation are

2007See id. at 949 .

2002Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394 (Tex.App.-Houston [1st Dist.] 1993, writ dism’d w.o.j.); see Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976).

2019Protected Opinion Finally, the Newspaper argues that the editorial published on March 2 contained non-actionable opinion, not statements of fact, and the court of appeals erred in holding otherwise. "[S]tatements that are not verifiable as false cannot form the basis of a defamation claim." Neely , 418 S.W.3d at 62 (citing *795 Milkovich v. Lorain Journal Co. , 497 U.S. 1 , 21-22, 110 S.Ct. 2695 , 111 L.Ed.2d 1 (1990) ).

2019Protected Opinion Finally, the Newspaper argues that the editorial published on March 2 contained non-actionable opinion, not statements of fact, and the court of appeals erred in holding otherwise. "[S]tatements that are not verifiable as false cannot form the basis of a defamation claim." Neely , 418 S.W.3d at 62 (citing *795 Milkovich v. Lorain Journal Co. , 497 U.S. 1 , 21-22, 110 S.Ct. 2695 , 111 L.Ed.2d 1 (1990) ).

2022P. 166a(i); Blake, 123 S.W.3d at 525 . - 14 - 04-20-00562-CV Defamation Per Se Applicable Law To prevail on a defamation claim, a plaintiff must plead and prove the defendant published a false statement of fact that defamed the plaintiff and that the defendant acted “with the requisite degree of fault regarding the truth of the statement.” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017).

2022See id. (requiring reasonable construction of the publication at issue in a defamation claim).

2024See Anderson, 550 S.W.3d at 617-18 ; Dall.

2020See Anderson v. Durant, 550 S.W.3d 605 , 617–18 (Tex. 2018); Rodriguez v. Gonzales, 566 S.W.3d 844, 851 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). 16 To resist a TCPA motion to dismiss a defamation claim, the pleadings and evidence must establish “the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff.” Landry’s, Inc. v. Animal Legal Def.

2021See Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam) (noting the first element of a defamation claim to be that the “defendant” published a false statement).

2020Compare Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought by private individuals, truth is an affirmative defense to slander.”) and Town of S. Padre Island v. Jacobs, 736 S.W.2d 134, 140 (Tex. App.—Corpus Christi–Edinburg 1986, writ denied) (“For years the courts of Texas have recognized that in libel and slander actions, truth of the defamatory statements is an affirmative defense, the burden of proving truth being placed on the defendant.”) with Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (“The elements of a prima facie case for defamation are

2022See Tatum, 554 S.W.3d at 638 (explaining that “[a]ccusing someone of a crime” or making “[r]emarks that adversely reflect on a person’s fitness to conduct his or her business or trade are also deemed defamatory per se” (quoting In re Lipsky, 460 S.W.3d at 596 )); Greer v. Abraham, 489 S.W.3d 440, 447 (Tex. 2016) (noting that, for purposes of a defamation analysis, “a charge of criminal conduct, no matter how remote in time or 24 place, can never be irrelevant to an official’s or a candidate’s fitness for office” (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971)); Hancock, 400 S.W.3

2022Furthermore, for a public-figure plaintiff, an essential element of the defamation claim is that the defendant published the alleged falsehood with “actual malice.” Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016); Lipsky, 460 S.W.3d at 593 (“The status of the person allegedly defamed determines the requisite degree of fault.”).

2025Although in general a private individual alleging defamation need only prove negligence, see id., when a defendant establishes the 7 The parties do not dispute that the TCPA applies to the Cavins’ defamation claim. 15 affirmative defense of qualified privilege, the plaintiff must prove that the defendant made the statements with actual malice, Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014).

2020A qualified privilege is an affirmative defense to a defamation claim and attaches to a communication that is “made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the communication.” Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014).

2016We have explained that to prevail on a defamation claim, the plaintiff must prove that the defendant (1) published a statement, (2) that was defamatory concerning the plaintiff, (3) while acting with . . . actual malice, if the plaintiff is a public official or a public figure . . . .[11] See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051 (1999).

2013See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998), ce rt. denied, 526 U.S. 1051 , 119 S.Ct. 1358 , 143 L.Ed.2d 519 (1999).

2024Doe, 2023 WL 8246181 , at *13–14; French v. French, 385 S.W.3d 61, 73 (Tex. App.—Waco 2012, pet. denied); see Tex. Civ.

2015WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998); French v. French, 385 S.W.3d 61, 72 (Tex.App.—Waco 2012, pet. denied).

2019As we already observed with regard to the defamation claim, “[b]are, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA.” Id.

2018See id. 32 As we already observed with regard to the defamation claim, “[b]are, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA.” Id.

2019Public Figure or Public Official Status To succeed on a defamation claim, private plaintiffs must prove that the defendant was at least negligent, whereas public officials and public figures must establish a higher degree of fault—they must prove that the defendant published a defamatory falsehood with actual malice, that is, with “knowledge that it was false or with reckless disregard of whether it was true or not.” Neely v. Wilson, 418 S.W.3d 52, 69 (Tex. 2013); see also New York Times Co. v. Sullivan, 376 U.S. 254 , 279–80, 84 S. Ct. 710, 726 (1964); New Times, Inc. v. Isaacks, 146 S.W.3d 1

2019Public Figure or Public Official Status To succeed on a defamation claim, private plaintiffs must prove that the defendant was at least negligent, whereas public officials and public figures must establish a higher degree of fault—they must prove that the defendant published a defamatory falsehood with actual malice, that is, with “knowledge that it was false or with reckless disregard of whether it was true or not.” Neely v. Wilson, 418 S.W.3d 52, 69 (Tex. 2013); see also New York Times Co. v. Sullivan, 376 U.S. 254 , 279–80, 84 S. Ct. 710, 726 (1964); New Times, Inc. v. Isaacks, 146 S.W.3d 1

2023See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 , 896–97 (Tex. 2018) (concluding argument was preserved for appellate review where party addressed concerns at TCPA hearing); see also Greene v. Farmers Ins.

2019As the Adams court explained, once the defendant alleged in his motion that he was entitled to dismissal of the plaintiff’s defamation claim because it was based on his right of free speech, “[h]e was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.” Id. at 896 . 44 With these decisions in mind, we consider whether Fernandez’s conspiracy and IIED claims—although not addressed in Appellants’ motion to dismiss or the parties’ briefs—require dismissal under the TCPA. 1.

2017See Tatum , 493 S.W.3d at 668 ("[C]alling someone a liar and accusing someone of perjury are both sufficiently verifiable to support a defamation claim.") (emphasis added); Miranda v. Byles , 390 S.W.3d 543 , 552 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) (statement that a doctor confirmed that plaintiff had sexually molested someone was an objectively verifiable factual statement); see also Bentley v. Bunton , 94 S.W.3d 561 , 583-85 (Tex. 2002) (speaker's assertions that, based on speaker's investigation, judge was corrupt were verifiable enough to support defamation claim).

2014“For a statement to be actionable in defamation, it must expressly or impliedly assert facts that are objectively verifiable.” Miranda v. Byles, 390 S.W.3d 543, 550 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) (quoting Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex. App.-Tyler 2008, pet. denied)); see Milko-vich v. Lorain Journal Co., 497 U.S. 1, 19 , 110 S.Ct. 2695, 2706 , 111 L.Ed.2d 1 (1990); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002). “[Statements that aré not verifiable as false cannot form the basis of a defamation claim.” Neely v. Wilson, 418 S.W.3d 52, 62 (Tex

2010See Wheeler v. Methodist Hosp., 95 S.W.3d 628, 636 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“[T]he discovery rule applies to a defamation claim if the matter is not public knowledge.

2010See Wheeler v. Methodist Hosp. , 95 S.W.3d 628, 636 (Tex. App.--Houston [1st Dist.] 2002, no pet.) ("[T]he discovery rule applies to a defamation claim if the matter is not public knowledge.