Jane Roe v. Leighton Paige Patterson and Southwest Baptist Theological Seminary

Supreme Court of Texas

══════════

No. 24-0368

══════════

Jane Roe,

Appellant,

v.

Leighton Paige Patterson and

Southwest Baptist Theological Seminary,

Appellees

═══════════════════════════════════════

On Certified Questions from the

United States Court of Appeals for the Fifth Circuit

═══════════════════════════════════════

Argued September 11, 2024

JUSTICE BLAND delivered the opinion of the Court.

In certified questions to our Court, the Fifth Circuit asks whether

a defendant may be held liable for defamation absent direct evidence of

the statements the defendant made to the publisher. In particular:

1. Can a person who supplies defamatory material to another for

publication be liable for defamation?

2. If so, can a defamation plaintiff survive summary judgment by

presenting evidence that a defendant was involved in

preparing a defamatory publication, without identifying any

specific statements made by the defendant?

The events underlying the claim before us arise in the higher

education context. A board of directors removed a university president

from his position, citing in part the president’s mishandling of a

student’s report of sexual assault. Seeking to reinstate the president, a

group of donors published an open letter to the board accusing the

complaining student of lying to police about the assault and further

stating that the encounters were consensual. The student sued the

president and the university for defamation, claiming that the

president’s agent had provided the defamatory content published in the

donor letter.

We answer yes to the two certified questions. First, a person who

supplies defamatory material to another for publication may be liable if

the person intends or knows that the defamatory material will be

published. Second, a plaintiff may survive summary judgment without

identifying the specific statements the defendant made in supplying the

defamatory material if the evidence is legally sufficient to support a

finding that the defendant was the source of the defamatory content.

I

In 2015, at the beginning of her second year as a student at

Southwestern Baptist Theological Seminary, Jane Roe reported to

President Paige Patterson that a fellow student and university

employee, John Doe, had sexually assaulted her at gunpoint on several

occasions during the previous year. 1 Patterson notified Fort Worth

1 Unusually, this certified question does not present a stipulated or

settled factual record. In its posture before our Court, we do not resolve the

appeal but instead answer the legal questions presented. Consistent with the

2

police, and Roe provided a statement to the responding officers detailing

her account of the assaults. While an investigation into Roe’s complaint

was pending, university officials discovered a cache of firearms in Doe’s

room. Southwestern expelled Doe from the university for violating its

campus firearms policy. He later died.

Several weeks after Roe made her report to Patterson, he emailed

a staff member that he planned to meet with Roe again to “break her

down.” At the meeting, Patterson confronted Roe with Doe’s version of

events: that Roe and Doe’s relationship was consensual and that Doe

possessed proof in the form of nude photographs of Roe. Roe responded

that she had not consented to a relationship nor to being photographed.

Shortly after the meeting, Roe withdrew from Southwestern.

Nearly three years later, Southwestern’s board of directors

removed Patterson from his duties, citing in part his treatment of Roe.

Seeking Patterson’s reinstatement, a group of donors wrote to the board.

The relevant parts of the letter stated that Roe had engaged in

consensual sexual activity, that she had texted nude photographs to

Doe, that she had made false statements to the police, and that her

allegations of rape were false:

It is our understanding that [the Board] knew full well that

the female student’s allegations of rape were false, that she

standard of review, however, we “examine the evidence in the light most

favorable to the non-moving party, indulging reasonable inferences and

resolving doubts against the party seeking summary judgment.” Helena Chem.

Co. v. Cox, 664 S.W.3d 66, 73 (Tex. 2023); cf. Burell v. Prudential Ins. Co. of

Am., 820 F.3d 132, 136 (5th Cir. 2016) (summary judgment review generally

requires viewing evidence in a light favorable to the non-movant).

3

had engaged in consensual sexual activities on more than

one occasion and those acts had taken place in public

buildings at the Seminary, and that campus security were

shown the nude pictures she texted to the male student. It

is our further understanding that [the Board] knew full

well that she begged Dr. Patterson to not call the police,

but he insisted that he would and he did so within six

minutes of hearing her allegation.

Regarding the “break her down” email, the letter says:

The full Board understood and accepted Dr. Patterson’s

explanation of the phrase “breaking her down” that

appeared in that email as being a statement of his desire

to meet with her (without the police present, but clearly, as

was always his practice, with other Seminary personnel

present) and attempt to help her recant her false

allegations of rape before she continued with such false

statements to the police.

The donors sent copies of the letter to over one hundred others, including

Southwestern faculty and alumni, church leaders, and members of the

press. Scott Colter, Patterson’s chief of staff, provided the donors with

the list of recipients. Colter assisted the letter drafters in other ways,

including by suggesting signatories for the letter, coordinating the

timing and method of the letter’s distribution, passing the draft to

Patterson and his personal lawyer, and verifying and providing

“additional info about the 2015 event.”

Roe sued Southwestern and Patterson for defamation based on

the text of the donor letter. 2 The federal district court granted summary

2 Roe further alleges claims based on other publications that are not at

issue here.

4

judgment, concluding that Colter had not acted as Patterson’s agent

when he participated in drafting the letter.

On appeal, the Fifth Circuit held that the summary judgment

evidence created a fact issue as to whether Colter had acted as

Patterson’s agent. It then certified the questions to this Court, and we

accepted them.

II

The answer to the first question—whether a person who supplies

defamatory material to another for publication can be liable for

defamation—is yes. The parties agree with this answer. They part

company, however, as to whether the person must intend or know that

the defamatory material provided will be published or merely

reasonably foresee that it could be published. Roe, relying on part of a

Restatement comment and two intermediate appellate opinions, urges

that a defamer may be liable for damages arising from foreseeable

repetitions of that material. 3 Patterson, citing opinions from other

courts of appeals and other state high courts, counters that a defamer

3 See Restatement (Second) of Torts § 577 cmt. k (Am. L. Inst. 1977) (“If

a reasonable person would recognize that an act creates an unreasonable risk

that the defamatory matter will be communicated to a third person, the

conduct becomes a negligent communication. A negligent communication

amounts to a publication just as effectively as an intentional communication.”);

Wheeler v. Methodist Hosp., 95 S.W.3d 628, 639–40 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (holding, for purposes of determining limitations period,

that originator of defamation may be liable for subsequent foreseeable

republications); Stephan v. Baylor Med. Ctr. at Garland, 20 S.W.3d 880, 889

(Tex. App.—Dallas 2000, no pet.) (same).

5

must, at the outset, intend or authorize the defamatory material’s

publication. 4

“‘Publication’ occurs if the defamatory statements are

communicated orally, in writing, or in print to some third person who is

‘capable of understanding their defamatory import and in such a way

that the third person did so understand.’” 5 The Restatement

characterizes the intent to publish as “when the actor does an act for the

purpose of communicating it to a third person or with knowledge that it

is substantially certain to be so communicated.” 6 The Restatement also

allows for liability if “a reasonable person would recognize that an act

4 See Cyrus W. Scott Mfg. Co. v. Millis, 67 S.W.2d 885, 887 (Tex. App.—

Galveston 1933, writ dism’d) (“The law is well settled both in England and

America, that the unauthorized and unprocured subsequent republication of

the alleged libel by others who were in no way connected with the defendant,

or originator of the alleged libel, cannot be offered in evidence either on the

question of liability or enhancement of the damages.”), disapproved of on other

grounds by Texam Oil Corp. v. Poynor, 436 S.W.2d 129 (Tex. 1968); Evans v.

Am. Publ’g Co., 8 S.W.2d 809, 812 (Tex. App.—Dallas 1928) (speaker at

convention not liable for damages resulting from newspaper’s publication of

his remarks the next day), cert. question regarding venue answered, 13 S.W.2d

358 (Tex. [Comm’n Op.] 1929). See also Geraci v. Probst, 938 N.E.2d 917, 922

(N.Y. 2010) (holding that it was error to admit evidence of republication, even

for purposes of showing damages, because the defendant played no role in the

republication); Pulliam v. Bond, 406 S.W.2d 635, 643 (Mo. 1966) (stating that

defendants could not be liable for republication or dissemination because they

did not publish the communication to anyone not authorized to receive it).

5 Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017)

(quoting Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—Dallas

2003, no pet.)).

6 Restatement (Second) of Torts § 577 cmt. k (emphasis added).

6

creates an unreasonable risk that the defamatory matter will be

communicated to a third person.” 7

The original defamer may be further liable for republication of a

defamatory statement, but not without proof of an initial intentional or

knowing publication. To recover for defamation, a plaintiff must identify

the defamatory statements made and further demonstrate that the

defendant was a source of those false statements. 8

Fault is an important element of defamation liability, both in

making the publication and with regard to its false and defamatory

meaning. 9 A defamation plaintiff who is not a public figure must prove

that the defendant knew or should have known that the statement was

false and defamatory. 10 A plaintiff who is a public figure must further

demonstrate that the statement was made with actual malice. 11 When

7 Id.

8 See Polk Cnty. Publ’g Co. v. Coleman, 685 S.W.3d 71, 76 (Tex. 2024)

(“One such element [of a defamation claim] is ‘the publication of a false

statement of fact’ by the defendant.” (quoting Dall. Morning News, Inc. v.

Tatum, 554 S.W.3d 614, 623 (Tex. 2018))).

9 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

10 See Hancock v. Variyam, 400 S.W.3d 59, 65 n.7 (Tex. 2013)

(establishing negligence as the appropriate level of fault in a suit between

private parties); Neely v. Wilson, 418 S.W.3d 52, 72 (Tex. 2013) (describing the

negligence standard). An exception exists for media defendants if the content

of the false statement “would not ‘warn a reasonably prudent editor or

broadcaster of its defamatory potential.’” D Mag. Partners v. Rosenthal, 529

S.W.3d 429, 440 (Tex. 2017) (quoting Neely, 418 S.W.3d at 72). Identifying the

meaning of a publication, and thus whether it is false and defamatory, is a

question of law for the court. Polk Cnty. Publ’g, 685 S.W.3d at 76–77.

11 In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (describing actual

malice standard as requiring that “the statement was made with knowledge of

its falsity or with reckless disregard for its truth”).

7

relying on identified content to contend that a defendant was the source

of the defamation, a plaintiff must show the requisite level of intent for

an initial publication.

The certified questions and the parties focus on liability for

republication. But Roe attempts to hold Patterson—through his

putative agent Colter—directly liable for the publication of the allegedly

defamatory material in the donor letter. Thus, the publication of the

donor letter is the initial publication, and Roe must show that Colter

intended or knew that the defamatory statements in the donor letter

would be published. 12

In answering the first certified question, we do not address the

circumstances in which an original defamer may be held liable for

republication of defamatory material once a plaintiff establishes liability

for an identified publication. In limited circumstances, the Restatement

would impose liability for reasonably foreseeable republications. 13 A

century ago, some appellate cases suggested such an expansive view of

12 Roe does not allege that Colter recklessly failed to heed the risk of

publication, but rather that he actively participated in drafting the letter and

transmitting it to a wide audience. Given the nature of the allegations of this

case, we need not decide whether liability can arise in circumstances that do

not demonstrate intentional or knowing publication. See Restatement (Second)

of Torts § 577 cmt. k.

13 “The publication of a libel or slander is a legal cause of any special

harm resulting from its repetition by a third person if, but only if, (a) the third

person was privileged to repeat it, or (b) the repetition was authorized or

intended by the original defamer, or (c) the repetition was reasonably to be

expected.” Id. § 576.

8

foreseeability. 14 In the modern era, however, other state high courts

have rejected or narrowed the circumstances in which repetition may be

foreseeable. In Geraci v. Probst, for example, the defendant defamed his

former business partner to a local government entity. 15 Three years

later, after the plaintiff had sued for defamation, a newspaper published

an article regarding the government’s investigation. The Court of

Appeals for New York held that the article was not a basis for liability

for additional damages because the defendant never spoke to the

reporters or otherwise widely disseminated the defamation. 16

With facts that contrast to those in Geraci, two state high courts

have permitted repetition damages when the original speaker furnished

the defamatory material to the news media with the expectation of the

material’s publication. 17

14 E.g., Sw. Tel. & Tel. Co. v. Long, 183 S.W. 421, 428 (Tex. App.—Austin

1915, no writ) (“He who utters a slander, especially against the reputation of a

woman for chastity, must know that he is opening a veritable Pandora’s box.

He must realize that he is turning loose, as it were, the down of thistle, and

ought not to be heard to say that he is not responsible for the wind’s scattering

it abroad.”).

15 938 N.E.2d 917 (N.Y. 2010).

Id. at 921; see also Pulliam, 406 S.W.2d at 643 (“The defendants

16

would not be liable, however, for any republication or dissemination of the

communication by the plaintiff, or which resulted from the independent or

unauthorized acts of others into whose hands the statement came . . . .”).

17 Barnette v. Wilson, 706 So. 2d 1164, 1166–67 (Ala. 1997) (answering

certified question that a person who publishes a slander at a press conference

is responsible for damages caused by the expected and intended repetition of

the slander by the media); Mitchell v. Superior Ct., 690 P.2d 625, 633 (Cal.

1984) (“In our opinion, if a source acting with actual malice furnishes

defamatory material to a publisher with the expectation that the material

9

Roe did not plead special damages arising from a particular

republication of the donor letter, and her defamation claim rests on the

statements in the letter as the initial defamatory publication. We

therefore do not address the precise mental state required to find

liability based on further repetition of the defamatory material. 18

III

Having answered the first question in the affirmative, we turn to

the Fifth Circuit’s second question, which asks whether a defamation

plaintiff must identify a specific statement by the defendant to survive

summary judgment when the plaintiff’s claim is that the defendant

provided defamatory material for publication. 19

(either verbatim or in substance) will be published, the source should be liable

for the publication.”).

18 When the subject matter is defamatory per se, the general rule is that

the plaintiff may recover general damages from the initial defamation and

special damages from republication. See Hancock, 400 S.W.3d at 65–66 (noting

that juries may presume general damages in defamation per se cases when the

speech is not a matter of public concern); Restatement (Second) of Torts § 576

cmt. a (permitting claims for special harm resulting from reasonably expected

repetitions). The donor letter accuses Roe of having made a false report to the

police—that is, having committed a crime; if false, such a statement may

qualify as defamatory per se. See Lipsky, 460 S.W.3d at 596 (“Accusing

someone of a crime, of having a foul or loathsome disease, or of engaging in

serious sexual misconduct are examples of defamation per se.”); Tex. Penal

Code § 37.08 (making it an offense to knowingly make a false statement to law

enforcement that is material to a criminal investigation).

19 Citing Belo v. Fuller, 19 S.W. 616, 617 (Tex. [Comm’n Op.] 1892), Roe

argues that a defendant may be liable for any defamatory publication that he

participates in making. Belo suggests that a defendant who aids, assists, or

advises the publication of defamatory material may be liable. Id. Mere

presence for the publication of a defamation, however, will not cause liability

to attach. See Bentley v. Bunton, 94 S.W.3d 561, 586 (Tex. 2002).

10

Roe contends that a defamation plaintiff need not prove a precise

phrase or statement made in contributing to a defamatory publication if

the evidence demonstrates that the defendant was the source of the

identified defamatory statements. Patterson responds that Roe must

identify the specific slanderous statements that a defendant made in

providing defamatory material for publication.

In some cases, the parties do not dispute the source of allegedly

defamatory statements. In others, the question can remain—as it does

in this case—whether a particular defendant is responsible for the

publication of identified statements alleged to be defamatory. Because a

defendant may direct the publication of defamatory information orally

or through forms of undiscoverable communication, we conclude that a

plaintiff, having identified a defamatory statement, must show that the

defendant was the source of the statement. A plaintiff need not adduce

evidence of the specifics of an underlying communication, however, so

long as the evidence shows that the defendant was the source of the

identified communication.

The plaintiff may meet this burden through direct or

circumstantial evidence. A “fact is established by circumstantial

evidence when the fact may be fairly and reasonably inferred from other

facts” adduced as evidence. 20 Evidence that the defendant was the

source of defamatory content may include proof that the defendant made

the same defamatory statement to others, that the defendant had

unique or personal knowledge of the defamatory content and its details,

20 Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).

11

or that the publishers relied on the defendant to support the

truthfulness of the allegedly defamatory statements. Evidence that

amounts to mere speculation or surmise does not suffice to survive

summary judgment, for this or any other tort. 21

* * *

To prove a claim for defamation for an identified publication, a

plaintiff must show that the defendant supplied the defamatory content

through direct or circumstantial evidence. That evidence need not

establish verbatim the underlying provision of defamatory content so

long as the evidence demonstrates that the defendant was a source of

the identified statements alleged to be defamatory. We answer yes to

the Fifth Circuit’s certified questions and leave the application of the

law to the facts of this case to that court.

Jane N. Bland

Justice

OPINION DELIVERED: February 14, 2025

21 E.g., Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (“To

raise a genuine issue of material fact, however, the evidence must transcend

mere suspicion.”).

12