In his recent post, my partner Brantley Saunders talked about a decision by the Fort Worth Court of Appeals in a case being handled by our firm. The case arose out of complaints made by parents about an assistant coach’s behavior at a baseball game – in a 7 year old boy’s baseball league. The coach took offense and sued the head coach of his own team, claiming he had been “defamed” by the head coach’s reporting of the complaint to the volunteer president of the baseball association. He also sued the volunteer president.
The trial judge refused to dismiss the case at an early stage, and so we filed an immediate appeal. Thankfully, the Court of Appeals ruled that the case should have been dismissed under the Texas Citizen’s Protection Act (TCPA). The TPCA is intended to protect the right of individuals to speak freely on matters of public concern. Here, the conduct at issue was a “matter of public concern” – the protection of young kids – and so the statute applied.
One question which arose in the case on appeal was whether the TCPA applies not only to publicly communicated statements, but also privately communicated statements. In an earlier case, the Texarkana Court of Appeals, in a case named Lippincott v. Whisenhunt, ruled that the TCPA does not apply to privately communicated statements. In our appeal to the Fort Worth Court of Appeals, we argued the Texarkana Court of Appeals was simply wrong and had misread the statute. On this point, here is an excerpt from the brief we filed:
In Whisenhunt, the court held that the TCPA applies only to individuals who are exercising their right to speak freely in public, and does not apply to speech that is “only privately communicated.” Whisenhunt, 2013 WL 5539368 at *8. That holding was erroneous because the court of appeals failed to take into account the statute’s definition of a “communication.” The term “communication” is defined to include “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code § 27.001(1) (emphasis added). The definition contains no requirement that the “communication” be “public” in order to be subject to the statute, nor is there any required minimum number of people that the “communication” must reach in order for the statute to apply. Had the Legislature intended the TCPA be limited to “publicly communicated” speech it could have easily done so by inserting a word or two into the definition of “communication.” It did not do so.
Last Friday the Texas Supreme Court reversed the Texarkana Court of Appeals’ decision in Whisenhunt. The Court ruled that the TCPA applies not only to publicly communicated statements but also privately communicated statements. In this connection the Court stated:
First, the statute defines “communication” as “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001 (1). The court of appeals concluded that because the purpose of the Act, as described in section 27.002, includes the phrase “otherwise participate in government,” the Act only protects public communication. 416 S.W.3d at 697. We disagree.
This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media-regardless of whether the communication takes a public or private form. Tex. Civ. Prac. & Rem. Code § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d at 802. In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. Tex. Civ. Prac. & Rem. Code § 27.011.
We couldn’t have said it better ourselves.
The assistant coach in our case apparently plans to file an appeal to the Texas Supreme Court. It is always difficult to get the Supreme Court to agree to hear your case because they have so many to consider, but as the former Yankee great Yogi Berra once said, it ain’t over till it’s over. Stay tuned.