Defamation Lawsuit Puts New Statute to the Test

In September 2010, two Democratic State Board of Education candidates posted a YouTube video satirizing the work of the board’s “right-wing extremist” members in revising Texas curriculum.

One line in the four-minute clip, which is no longer online, focused on David Barton — a conservative historian and activist whom the board had consulted as an expert — as being “known for speaking at white supremacist rallies.”

Almost a year later, Barton, whose organization WallBuilders promotes what it calls “the forgotten Christian heritage of the United States,” filed suit, and his defamation case against Rebecca Bell-Metereau and Judy Jennings has become an early test of new tort reform legislation intended to protect free speech.

The law, which the Legislature passed in 2011 with bipartisan support, provides a process for the early dismissal of meritless legal claims filed to intimidate critics — so-called Strategic Lawsuits Against Public Participation, or SLAPPs. It is aimed at plaintiffs who use the court system to try and quiet their opponents by drowning them in legal fees and paperwork, often with no expectation of winning their cases.

A Parker County court denied a motion from the lawyers for Bell-Metereau and Jennings to dismiss the case under the new law, and they have appealed. Barton’s lawyers have argued that the statute does not contain a right for defendants to file such an appeal.

Robert Bozelli, a lawyer for Barton, said that the statute presented a “balanced approach” to dealing with meritless defamation cases, but if lawmakers had intended for defendants to be able to appeal a motion denying dismissal before a trial concluded, they would have explicitly included that right in the statute.

The video clip posted on YouTube referred to two appearances Barton made in 1991 at gatherings of groups linked with the Christian Identity movement, whose beliefs include that Jews are the “synagogue of Satan,” nonwhite races are “subhuman” and that “Northern European whites and their American descendants are the chosen people of scriptural prophecy,” according to the court filings.

In Barton’s court filings, he does not deny that he gave talks to the groups, but he said he was not aware of their ideology then and had not attended events linked to the movement since. He said that two decades and nearly 8,000 speeches later, those 1991 talks are not what he is known for. Bell-Metereau and Jennings state in court documents that Barton’s past connection to the white supremacist movement was discussed on Keith Olbermann’s former show on MSNBC and in a Huffington Post article as recently as 2010.

The Barton case is one of about two dozen involving the new statute that have begun making their way through the courts in the past year, said Laura Prather, an Austin lawyer who led efforts to pass the statute.

Prather said that on the whole, the statute appears to be successful — with no trend toward courts either granting or denying motions.

“To me that says the statute works,” she said. “This isn’t supposed to be a statute intended to say you can never go forward in a case involving free speech.”

The argument in the Barton case over a defendant’s right to appeal, she said, was “concerning because of the frivolity” and because, if Barton’s argument is successful, it would "take all of the teeth” out of the statute. If the law did not include the right for defendants to appeal a denial, as Barton’s lawyers argue, the constitutional concerns would be “grave,” she said.

Unfortunately, the Legislature was “a little sloppy” in how it worded the statute, said Jim George, a lawyer representing Bell-Metereau and Jennings. If they lose their appeal, the case will proceed to trial, with another opportunity for dismissal after what can often be an expensive and time-consuming discovery process. “The consequences of that is that media defendants and people like our clients spend a lot more money to get to the same place that the Legislature intended them to get to without spending all that money,” George said.