Petition for Writ of Certiorari — Infowars, LLC, et al., Petitioners v. Marcel Fontaine
Supreme Court briefAug 31, 2021
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APPENDIX A
Order Denying Petition For Review – The Texas Supreme
Court, Infowars, LLC, et al. v. Marcel Fontaine, No. 19-1029
(Jan. 22, 2021)
App.1
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
MR. ANDREW P. VICKERS
WALLER LANSDEN DORTCH & DAVIS, LLP
100 CONGRESS AVENUE, SUITE 1800
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.2
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
DISTRICT CLERK TRAVIS COUNTY
TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
* DELIVERED VIA E-MAIL *
App.3
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
MR. ERIC J. TAUBE
WALLER LANSDEN DORTCH & DAVIS, LLP
100 CONGRESS AVENUE, SUITE 1800
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.4
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
MR. JEFFREY D. KYLE
CLERK, THIRD COURT OF APPEALS
209 WEST 14TH STREET, ROOM 101
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.5
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
MR. MARK BANKSTON
KASTER LYNCH FARRAR & BALL, L.L.P.
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.6
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
MR. WILLIAM OGDEN
KASTER LYNCH FARRAR & BALL LLP
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.7
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 1/22/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case.
MR. KEVIN W. BROWN
WALLER LANSDEN DORTCH & DAVIS, LLP
100 CONGRESS AVENUE, SUITE 1800
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.8
APPENDIX B
Order Denying Motion For Rehearing Of Petition For Review –
The Texas Supreme Court, Infowars, LLC, et al. v. Marcel
Fontaine, No. 19-1029 (April 16, 2021)
App.9
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. ANDREW P. VICKERS
WALLER LANSDEN DORTCH & DAVIS, LLP
100 CONGRESS AVENUE, SUITE 1800
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.10
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
DISTRICT CLERK TRAVIS COUNTY
TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
* DELIVERED VIA E-MAIL *
App.11
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. ERIC J. TAUBE
WALLER LANSDEN DORTCH & DAVIS, LLP
100 CONGRESS AVENUE, SUITE 1800
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.12
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. JEFFREY D. KYLE
CLERK, THIRD COURT OF APPEALS
209 WEST 14TH STREET, ROOM 101
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.13
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. MARK BANKSTON
KASTER LYNCH FARRAR & BALL, L.L.P.
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.14
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. WILLIAM OGDEN
KASTER LYNCH FARRAR & BALL LLP
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.15
FILE COPY
RE: Case No. 19-1029
COA #: 03-18-00614-CV
STYLE: INFOWARS, LLC v. FONTAINE
DATE: 4/16/2021
TC#: D-1-GN-18-001605
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. KEVIN W. BROWN
WALLER LANSDEN DORTCH & DAVIS, LLP
100 CONGRESS AVENUE, SUITE 1800
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.16
APPENDIX C
Opinion Of The Texas Court Of Appeals, Third District,
Infowars, LLC, et al. v. Marcel Fontaine, No. 3-18-00614-CV
(October 24, 2019)
App.17
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00614-CV
Infowars, LLC; Free Speech Systems, LLC; and Kit Daniels, Appellants
v.
Marcel Fontaine, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-001605, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Infowars, LLC; Free Speech Systems, LLC; and Kit Daniels appeal
from the district court’s order partially denying their motion to dismiss under section 27.003 of
the Texas Citizens Participation Act (TCPA). 1 See Tex. Civ. Prac. & Rem. Code § 27.003. We
will affirm the district court’s partial denial of Appellants’ motion to dismiss.
1
All citations in this opinion to the TCPA are to the version in effect before the
September 2019 amendments became effective. See Act of May 21, 2011, 82d Leg., R.S.,
ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code
§§ 27.001–.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5, 2013
Tex. Gen. Laws 2499, 2499–500 (the version at issue in this opinion); see also Act of
May 20, 2019, 86th Leg., R.S., H.B. 2730, §§ 1–9 (the 2019 amendments), 11–12 (providing that
a suit filed before the amendments become effective “is governed by the law in effect
immediately before that date”).
App.18
BACKGROUND
On February 14, 2018, a shooter killed seventeen people at Marjory Stoneman
Douglas High School in Parkland, Florida. That same day, the Infowars.com website published
an article authored by Daniels entitled “MSM already covering it up.” 2 The article provided
information and commentary relating to the Parkland shooter, Nikolas Cruz, and included a clear
photo of Marcel Fontaine below the text “another alleged photo of the suspect shows communist
garb” and with the caption “Shooter is a commie.” 3 In the photo, Fontaine is wearing a red shirt
that features several famous communist leaders engaging in merriment. The photo remained on
Infowars.com for about thirteen hours before it was removed, and no correction was issued at
that time explaining that the photo was actually not that of the shooter. The parties appear to
agree that Fontaine, who has never been to Florida, was not involved in the Parkland shooting.
By March 1, 2018, Fontaine requested that Appellants issue a correction pursuant
to section 73.055 of the Civil Practice and Remedies Code. A month later, Fontaine filed the
underlying lawsuit, and Appellants then issued a statement on the website noting that “we
showed a photograph of a young man that we had received and stated incorrectly that it was an
alleged photo of the suspected shooter at Douglas High School in Parkland, Florida. . . .”
Fontaine’s lawsuit alleged claims for defamation and defamation per se as well as intentional
infliction of emotional distress. The petition further alleged that all defendants were engaged in
a conspiracy and that Alex E. Jones 4 and Infowars, LLC are liable under the doctrine of
2
The record shows that on Infowars.com, “MSM” refers to mainstream media.
3
The article, which is attached to Daniels’s affidavit, identifies the shooter as Nikolas
Cruz and also provides the voting record and other information for “Nicolas Cruz” in addition to
providing Fontaine’s photo.
4
Alex E. Jones is a defendant in the underlying litigation but is not a party to this appeal.
2
App.19
respondeat superior.
Jones and Appellants filed a motion to dismiss under the TCPA.
The district court granted the motion as to Fontaine’s claim for intentional infliction of emotional
distress, but denied the motion as to the defamation claim. Appellants raise three issues on
appeal: (1) all claims against Infowars, LLC should have been dismissed because there is no
evidence to support any cause of action against Infowars, LLC; (2) Fontaine failed to establish
clear and specific evidence to support a prima facie case of defamation, conspiracy, and
respondeat superior against Daniels and Free Speech Systems; and (3) the district court failed to
award Appellants their reasonable and necessary attorney’s fees as a result of the partial grant of
their motion to dismiss.
ANALYSIS
“Reviewing a TCPA motion to dismiss requires a three-step analysis.” Youngkin
v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the party moving for dismissal must show by
a preponderance of the evidence that the TCPA applies to the legal action against it. Tex. Civ.
Prac. & Rem. Code § 27.005(b). If the movant meets that burden, the nonmovant must establish
by clear and specific evidence a prima facie case for each essential element of its claim. Id.
§ 27.005(c). “The words ‘clear’ and ‘specific’ in the context of this statute have been interpreted
respectively to mean, for the former, ‘unambiguous,’ ‘sure,’ or ‘free from doubt’ and, for the
latter, ‘explicit’ or ‘relating to a particular named thing.’” Hawxhurst v. Austin’s Boat Tours,
550 S.W.3d 220, 230 (Tex. App.—Austin 2018, no pet.) (quoting In re Lipsky, 460 S.W.3d 579,
590 (Tex. 2015)). “In determining whether a legal action should be dismissed under [the TCPA],
the court shall consider the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a) (“Evidence”).
3
App.20
Collectively, these elements require that the “plaintiff must provide enough detail to show the
factual basis for its claim.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam).
If the nonmovant satisfies that requirement, the burden shifts back to the movant to prove each
essential element of any valid defenses by a preponderance of the evidence. Tex. Civ. Prac. &
Rem. Code § 27.005(d).
The parties do not dispute that the TCPA applies to the defamation action against
Appellees, and Appellants have not asserted any defense. As a result, only the second step of the
TCPA analysis is at issue here—whether Fontaine established by clear and specific evidence a
prima facie case for each essential element of his defamation claim. We review de novo whether
the parties met their respective burdens of proof under section 27.005. Long Canyon Phase II &
III Homeowners Ass’n v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.).
Liability of Infowars, LLC
Appellants contend that Fontaine failed to establish any evidence of Infowars,
LLC’s involvement in publication of the alleged defamation, thereby falling short of the TCPA’s
requirement to establish a prima facie case for liability as to Infowars, LLC. In support of his
contention that Infowars, LLC is a proper defendant in this case, Fontaine filed an affidavit by
Marcus Turnini, who averred that he had visited the Infowars.com website and attached as
exhibits to his affidavit a true and correct copy of portions of the website as they existed on
August 1, 2018. Appellants objected that the district court should have excluded Turnini’s
affidavit on the grounds that the affiant was not an expert, did not profess to have personal
knowledge about the contents of the webpages attached to his affidavit, and did not provide any
4
App.21
explanation about the contents of the webpages at the time the alleged defamatory article was
published. On appeal, they assert that the affidavit should not have been admitted or considered.
In his affidavit, Turnini states that he is a paralegal, that he visited two separate
links containing Infowars.com’s terms of service, and that he attached true and correct copies of
the website pages located at those links to his affidavit. Turnini is not acting as an expert for
Fontaine. In this instance, Turnini’s affidavit explains that he has personal knowledge of the
contents of the exhibits by stating that he visited the website on August 1, 2018, and printed a
true and correct copy of its contents. Although Appellants argue that evidence of the state of the
website in August does not account for what might have been on the website on February 14,
2018, they do not present evidence or argument that the Terms of Use were different on
February14, 2018, or any time thereafter. The district court’s order does not reveal whether the
district court relied on Turnini’s affidavit, but we conclude on this record that the district court
would not have abused its discretion in considering Turnini’s affidavit. See Melton v. CU
Members Mortg., __ S.W.3d __, __ No. 03-18-00363-CV, 2019 Tex. App. LEXIS 6507 at * 9
(Tex. App.—Austin, 2019) (no pet. h.) (“We review rulings on the admission or exclusion of
evidence for abuse of discretion.”).
At the time Turnini provided his affidavit, the online document containing
Infowars.com’s terms of service was entitled “INFOWARS LLC, TERMS OF USE &
PRIVACY POLICY” (Terms of Use).
The Terms of Use expressly applied to
“planet.infowars.com and all other Uniform Resource Identifier[s] we use to provide our
Products and Services.” A Uniform Resource Identifier (URI) is a sequence of characters used
to identify “resources via separately defined extensible sets of naming schemes.” Drauglis v.
Kappa Map Grp., LLC, 128 F. Supp. 3d 46, 56-57 (D.D.C. 2015). URI is a broad term that
5
App.22
includes Uniform Resource Locators (URLs), otherwise known as links. Id. at 57. Thus, the
website link Infowars.com qualifies as a URI. The Terms of Use describe users’ rights and
abilities to use Infowars.com and provide for legal consequences for noncompliance. Under the
Terms of Use, “‘We,’ ‘us,’ and ‘our’ means Infowars, LLC, a Texas limited liability company.”
Some of the rights and responsibilities specified by the Terms of Use include how “notices from
us shall be sent” to users, how “We” gather information about users to use and to share with third
parties, and how “We may review and delete any content you post on the Website or elsewhere
utilizing our Services or System if we determine, in our sole discretion, that the content violates
that rights of others, is not appropriate for the Website, or otherwise violates this Agreement.”
In other words, under the Terms of Use, use of Infowars.com initiated a relationship between the
user and Infowars, LLC, and Infowars, LLC was involved in the website’s operation. In the
absence of argument or evidence that the contents of the Terms of Use changed between
February 14, 2018, and August 1, 2018, we conclude that Fontaine has established by clear and
specific evidence the minimum quantum of evidence necessary to support a rational inference
that Infowars, LLC is a proper defendant.
Prima Facie Case for Defamation
The TCPA requires Fontaine to establish by clear and specific evidence a prima
facie case for each essential element of his defamation claim against Appellants. Tex. Civ. Prac.
& Rem. Code § 27.005(c). “In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was said, the defamatory nature of
the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion
to dismiss.” In re Lipsky, 460 S.W.3d at 591. The TCPA “does not impose an elevated
6
App.23
evidentiary standard or categorically reject circumstantial evidence.” Id. Defamation occurs
when “(1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the
requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a
private individual); and (4) damages (unless the statement constitutes defamation per se).”
D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017). “The status of the
person allegedly defamed determines the requisite degree of fault.” In re Lipsky, 460 S.W.3d at
593. A private individual need prove only negligence, whereas a public figure or official must
prove actual malice.
(Tex. 1998)).
Id.
(citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571
Finally, a plaintiff must plead and prove damages, unless the defamatory
statements are defamatory per se. Id. (citing Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys.
Landfill, Inc., 434 S.W.3d 142, 162 n.7 (Tex. 2014)). Defamation per se refers to statements that
are so obviously harmful that general damages may be presumed. Id.
False and Defamatory Publication
“Texas recognizes the common-law rule that defamation is either per se or per
quod.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). “Defamation
per se occurs when a statement is so obviously detrimental to one’s good name that a jury may
presume general damages, such as for loss of reputation or for mental anguish.” Id. (citing
Hancock v. Variyam, 400 S.W.3d 59, 63-64 (Tex. 2013)). Defamation per quod is simply
defamation that is not actionable per se. Id.
Appellants acknowledge that Fontaine is not the Parkland shooter, who at the time
of the shooting had already been identified as another person. They nonetheless assert that by
publishing a photograph of Fontaine with the accompanying text “another alleged photo of the
suspect shows communist garb,” “Daniels accurately reported” what he had seen on social
7
App.24
media. Appellants assert that Daniels obtained Fontaine’s photo from www.4chan.org (4chan), a
website that allows users to post images and text anonymously. See United States v. Kernell,
667 F.3d 746, 749 (6th Cir. 2012) (“4chan is known for its culture of anonymous posting, and
often contains content that is offensive or socially unacceptable.”); Vangheluwe v. Got News,
LLC, 365 F. Supp. 3d 836, 846-48 (E.D. Mich. 2019) (determining that the fair reporting
privilege and wire-service privilege did not apply where reporter relied on information found on
4chan and discussing 4chan’s unreliability as a news-gathering agency). Daniels had also seen
Fontaine’s photo “trending on social media, including Twitter.” Specifically, Daniels relies on
Fontaine’s photo having been tweeted by an anonymous user, @LagBeachAntifa7, from an
account called Laguna Beach Antifa. Fontaine’s pleadings assert that the Laguna Beach Antifa
account is a parody account and was not a reliable news source. Appellants assert that these
sources formed the basis for Daniels’s belief that the photo was of the Parkland shooter and that
by using the adjective “alleged,” Daniels absolved himself of liability for defamation because an
anonymous user on 4chan and an anonymous user on Twitter had both alleged that the photo was
of the Parkland shooter.
The precise text accompanying Fontaine’s photo on 4chan had the title “Florida
Shooter Was Commie!” and the text “FLORIDA SHOOTER WAS A CONFIRMED LIBERAL
COMMIE!!! What r we going to do to help the country defend itself against the red scare/pol? 5
A million bucks says he supports ANTIFA too!” Laguna Beach Antifa tweeted the photo with
the statement “Please don’t RT 6 this picture of #NicholasCruz wearing an Antifa shirt. We don’t
need anymore bad press. #BrowardCounty #floridaschoolshooting.” Although Daniels states
5
The record shows that “/pol” refers to 4chan’s “Politically Incorrect” discussion board.
6
“RT” means to “retweet”—to electronically share the initial tweet on Twitter.
8
App.25
that he obtained the image from the 4chan post, the only 4chan post contained in the record has a
time stamp showing that it was made after Daniels posted his article to Infowars.com, so it would
be difficult to show that Daniels relied on that post to confirm the identity of the shooter before
posting his article. The Laguna Beach Antifa tweet was posted about two hours before Daniels
published his article. Fontaine asserts that Daniels could not have relied on any allegation from
the tweet, which Fontaine describes as “an obvious joke,” in that the tweet shares a photo that it
asks others not to share. The record also contains an excerpt showing that the day before the
Parkland shooting, the top Google search result for Laguna Beach Antifa’s Twitter account
described it as a parody account. Fontaine further explains in his response to the motion to
dismiss that a reverse image search of the photo in question would have revealed that Fontaine’s
photo had been circulating on 4chan for days before the shooting with various comments
mocking Fontaine and his shirt. Fontaine also notes that the image used by Daniels contains, as
part of the image itself, the caption “Shooter is a commie,” which is not included in either of the
two sources that Daniels alleges he relied on, suggesting that the image used by Daniels
originated elsewhere.
Even accepting Appellants’ argument that Daniels based his belief regarding the
shooter’s identity on the tweet and that addition of the word “alleged” would render the text of
the article technically accurate, it is not likely that Daniels was entitled to rely on the anonymous
tweet. See McDonald v. Raycom TV Broad., Inc., 665 F. Supp. 2d 688, 690 (S.D. Miss. 2009)
(stating “as a general rule, one who repeats a defamatory statement attributed to another cannot
avoid liability merely by showing that the statement was made by the other person because,
under the republication rule of defamation, one who repeats slander or libel from another
endorses it” but noting an exception for reports of an official action subject to the fair report
9
App.26
privilege); see also Neely v. Wilson, 418 S.W.3d 52, 61 (Tex. 2013) (“[I]t is a well-settled legal
principle that one is liable for republishing the defamatory statement of another.”). Moreover, “a
plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are
published in such a way that they create a substantially false and defamatory impression by
omitting material facts or juxtaposing facts in a misleading way.” Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 115 (Tex. 2000). The “meaning of a publication, and thus whether it is
false and defamatory, depends on a reasonable person’s perception of the entirety of a
publication and not merely on individual statements.” Id. As a result, a defendant may be liable
for a publication that gets the details right but fails to put them in the proper context and thereby
gets the story’s gist wrong. Id.; see Dallas Morning News, 554 S.W.3d at 628 (explaining that
defamation may arise from explicit statements, from the gist of an entire article, or “implicitly
from a distinct portion of the article rather than from the article’s as-a-whole gist.”). Although in
isolation the description “alleged photo” might be literally true,—i.e., that the photo is said to be
that of the person thought to be the shooter—the statement as a whole is reasonably capable of
defamatory meaning because a reasonable person’s perception could be that the photo depicted
the person thought to be the shooter. See James v. Fort Worth Telegram Co., 117 S.W. 1028,
1029 (Tex. App.—Fort Worth 1909, no writ) (“persons who knew the plaintiff well, and knew
her residence and family, would probably not be misled, but would at once conclude that the
picture was inserted by mistake; but there may well be a considerable number of persons, who
only know the plaintiff by sight, or have merely a slight acquaintance, who would recognize the
picture at once, and would conclude that the article in fact did refer to the plaintiff, concluding (if
they knew the plaintiff’s name at all) that such name was merely another alias.”). In a case
10
App.27
where a newspaper published the photo of a man named Jesse James, but erroneously identified
him as Daniel Herring, who had committed homicide, one court wrote:
There can be no doubt that imputing to a person that he has killed a human being
under circumstances authorizing his arrest and detention by officers of the law
tends to injure his reputation and to expose him to public hatred. . . . It is plain,
we think, it should be construed as imputing the homicide to the man whose
picture, forming a part of the publication, was identified by references to it as that
of the man who did the killing. The evidence was uncontradicted that the picture
was a reproduction of a photograph of appellant, and not a picture of the man
guilty of the homicide. Therefore it is clear, we think, that the publication should
be held to have imputed the killing to appellant.
Id. That court held that the “imputation in the publication” was “per se libelous.” Id. at 1030.
Because Appellants published Fontaine’s photograph in an article describing him as the Parkland
shooter, we conclude that Fontaine has established by clear and specific evidence a prima facie
case that the article containing his photo was false and defamatory per se.
Appellants assert that Fontaine has also failed to make a prima facie case for
conspiracy and respondeat superior. However, because civil conspiracy is “derivative,” courts
do not analyze the trial court’s refusal to dismiss plaintiffs’ causes of action for conspiracy
separately from its refusal to dismiss their other causes of action. Warner Bros. Entm’t, Inc. v.
Jones, 538 S.W.3d 781, 797 (Tex. App.—Austin 2017, pet. granted). Similarly, the doctrine of
respondeat superior is not a separate “legal action” and is not addressed separately from the
underlying cause of action for defamation in a TCPA motion to dismiss. See Tex. Civ. Prac. &
Rem. Code § 27.001(6).
Requisite Degree of Fault
Appellants urge that Fontaine should have to prove that they acted with actual
malice because Fontaine’s pleading, while asserting a host of facts, ultimately alleges that
11
App.28
Appellants acted with actual malice—that is, that Appellants published the defamatory article
with knowledge of its falsity or with reckless disregard for the truth or falsity of the statements
contained therein. However, Fontaine alleges a claim for defamation, asserts facts in his petition
to explain the basis for his claim, and makes the uncontroverted assertion that he “is a private
individual and is neither a public official nor a public figure.” “In Texas, courts apply a
negligence standard in cases involving a private plaintiff seeking defamation damages from a
media defendant.” D Magazine Partners, 529 S.W.3d at 434 (citing Neely, 418 S.W.3d at 61).
Under a negligence standard, a defendant is negligent if the defendant knew or should have
known a defamatory statement was false, unless the content of the false statement would not
warn a reasonably prudent editor of its defamatory potential. Id.
Appellants rely on Daniels’s assertion that he relied on the 4chan post and a tweet
from a parody Twitter account to show that he did not publish the article with the requisite
degree of fault. Appellants ask this Court to hold that using an image from an anonymous online
source that is corroborated by another anonymous online source suffices to bar Fontaine from
proceeding with a suit for defamation. The record does not contain a 4chan post that was
published before Daniels posted his article; the only copy provided was published later.
Fontaine argues that the timeline suggests that Daniels may not have relied on a 4chan post at all.
The sole remaining publication on which Daniels might have relied is the tweet. Fontaine
included images in his response to the motion to dismiss to support his assertion that the Twitter
account on which Daniels relied was an obvious parody account and that on its face the tweet
contains a joke indicating that it is not a serious source of information. Fontaine further alleges
that, in addition to the dubious nature of Appellants’ sources of information, failure to perform
even the most basic review of the information, by performing a reverse image search, showed
12
App.29
that Appellants were intentionally avoiding the truth and were at least negligent in publishing the
photo in the article. This Court has determined that reliance on a single dubious source for
allegations may demonstrate more than mere negligence where there are obvious reasons to
doubt the veracity of reports. Warner Bros., 538 S.W.3d at 807; cf. Harte-Hanks Commc’ns, Inc.
v. Connaughton, 491 U.S. 657, 692 (1989) (concluding there was prima facie evidence of
recklessness by citing undisputed evidence that publisher failed to make any effort to interview
key witness or to listen to tapes of key witness’s interview); D Magazine Partners, 529 S.W.3d
at 434 (holding that a magazine acted with negligence when it “failed to take reasonable steps to
verify the accuracy of the story’s gist and should have known the gist was false”). On this
record, and given the limited scope of our TCPA review, we conclude that Fontaine has
established by clear and specific evidence the minimum quantum of evidence necessary to
support a rational inference that Appellants acted at least negligently.
Damages
“Damages . . . are not always an essential element of defamation.” Brady v.
Klentzman, 515 S.W.3d 878, 886 (Tex. 2017) (citing In re Lipsky, 460 S.W.3d at 593). “If the
statement is defamatory per se, then nominal damages may be awarded without proof of actual
injury because mental anguish and loss of reputation are presumed.” Id. To recover actual
damages for loss of reputation or mental anguish or for economic loss, a plaintiff must present
evidence of the existence and amount of these damages. Id. “But this is optional. The plaintiff
can vindicate his name and obtain nominal damages without evidence of actual injury.” Id.
Accordingly, having determined that Fontaine has established a prima facie case that Appellants’
publication was defamatory per se, we may presume nominal damages, which are sufficient to
defeat Appellants’ motion to dismiss. See In re Lipsky, 460 S.W.3d at 596 (“Pleading and proof
13
App.30
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.”). We therefore need not address Fontaine’s affidavit and supplemental
declaration that seek to establish his general and special damages. See id.
Attorney’s Fees
Appellants assert that the district court abused its discretion by failing to award
them “reasonable attorney’s fees.” See Tex. Civ. Prac. & Rem. Code 27.009(a)(1) (requiring an
award of “reasonable attorney’s fees . . . as justice and equity may require” if the court orders
dismissal under the TCPA). Whether attorney’s fees are reasonable is generally a question of
fact. See Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). We review a trial court’s decision
to award attorney’s fees for an abuse of discretion and review the amount awarded under a legalsufficiency standard. Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671
(Tex. App.—Austin 2006, no pet.). A trial court abuses its discretion if its decision “is arbitrary,
unreasonable, and without reference to guiding principles.” Goode v. Shoukfeh, 943 S.W.2d 441,
446 (Tex. 1997).
A party seeking attorney’s fees must prove the amount as well as the
reasonableness and necessity of the fees sought. Fawcett v. Grosu, 498 S.W.3d 650, 666
(Tex. App.—Houston [14th Dist.] 2016, pet. denied); see El Apple I, Ltd. v. Olivas, 370 S.W.3d
757, 762-63 (Tex. 2012).
The district court granted Appellants’ motion to dismiss relating to Fontaine’s
claim for intentional infliction of emotional distress, essentially agreeing with Appellants that it
was legally barred because it was based on the same facts as the defamation claim. Appellants
submitted evidence showing they incurred attorney’s fees in the amount of $59,675 as of two
14
App.31
days before the hearing, and anticipated incurring an additional $5,000 through the conclusion of
the hearing. At the hearing on the motion to dismiss, Fontaine argued that, in the event of a
partial dismissal, he would be liable for a “pro rata share of the attorney’s fees” if a defendant or
cause of action were carved out of the case. Counsel for Fontaine expressly objected to the
amount of attorney’s fees sought by Appellants: “We do object to the amount of the affidavit in
terms of we don’t believe that those are reasonable attorneys’ fees,” and counsel for both parties
presented specific arguments regarding the reasonableness of the fees. Counsel for Fontaine also
stated he understood that he might not be able to survive a motion to dismiss as to both the claim
for defamation and for intentional infliction of emotional distress based on this Court’s opinion
in Warner Brothers. See 538 S.W.3d at 814 (holding the trial court erred by not dismissing
intentional infliction of emotional distress claim that was based on the same facts as plaintiff’s
defamation claim). The district court acknowledged that it was required to award attorney’s fees
“on that portion of the case that’s dismissed,” adding “you were put in this sort of difficult choice
of having to decide whether to keep the gap filler for belt and suspenders purposes knowing that
when you lose the belt or the suspenders, you’re going to have to pay for it.” Noting that the
declaration in support of the fees did not segregate fees based on causes of action or defendants,
the district court awarded Appellants $5,000 for attorney’s fees for the portion of the TCPA
motion that resulted in dismissal of Fontaine’s claim for intentional infliction of emotional
distress. In this case, we cannot conclude that the district court abused its discretion in awarding
Appellants $5,000.
15
App.32
CONCLUSION
Having determined that Fontaine established a prima facie case for defamation,
we affirm the district court’s order partially denying Appellants’ motion to dismiss.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Kelly
Affirmed
Filed: October 24, 2019
16
App.33
APPENDIX D
Opinion & Order Of The Travis County District Court, Marcel
Fontaine v. Alex E. Jones, et al., No. D-1-GN-18-001605
(August 29, 2018)
App.34
Filed in The District Court
of Travis County, Texas
Appendix 1
At
CAUSE NO. D-1 -G -1 8-001605
MARCEL FO TAINE
§
§
§
§
Plaintiff
AUG 29 2018 &<-3, :6lf p' M,
Velva L Price, District Clerk
IN THE DISTRICT COURT OF
§
VS.
ALEX E. JONES, INFOWARS, LLC, FREE
SPEECH SYSTEMS, LLC, AND KIT
DANIELS
Defendants
§
§
§
§
§
TRAVIS COUNTY, TEXAS
459 th JUDICIAL DISTRICT
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
On August 2, 2018, the Court heard Defendants ' Motion to Dismiss under the Texas
Citizens Participation Act. After considering the arguments of counsel and the record, the Court
finds that defendants' motion should be granted in part.
It is ORDERED that plaintifrs claims for intentional infliction of emotional distress are
DISMISSED. It is further ORDERED that plaintiffs claims against defendant Alex E. Jones are
r
.
DISMISSED.
Because the Court is required by Section 27.009(a)( l ) of the Texas Civi l Practice and
Remedies Code to award court costs, attorneys' fees and other expenses, it is further ORDERED
that defendants are awarded their court costs, reasonable attorneys' fees and other expenses
incurred in defending against the dismissed claims in the amount of$
StJOO~
@
,
, to be
taxed as costs of court. T he Court finds that this is a reasonable amount given that the declaration
in support of defendants' attorneys' fees did not segregate fees based on causes of action or
defendants.
GN- 18-001605
App.35
Page 314 of 328
Because the Court is required by Section 27.009(a)(2) of the Texas Civil Practice and
Remedies Code to award sanctions, it is further ORDERED that defendants are awarded sanctions
against plaintiff in the amount of $ 1, to be taxed as costs of court. The Court finds that, in light of
the attorneys ' fees simultaneously awarded and the statute's stated purpose of protecting "the
rights of a person to file meritorious lawsuits for demonstrable injury," this is an amount sufficient
to "deter" similar actions.
Defendants' motion is otherwise DENIED.
Signed August
GN- 18-00 1605
21 ,20 18.
App.36
2 of 328
Page 315
Appendix 2
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00614-CV
Infowars, LLC; Free Speech Systems, LLC; and Kit Daniels, Appellants
v.
Marcel Fontaine, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-001605, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Infowars, LLC; Free Speech Systems, LLC; and Kit Daniels appeal
from the district court’s order partially denying their motion to dismiss under section 27.003 of
the Texas Citizens Participation Act (TCPA). 1 See Tex. Civ. Prac. & Rem. Code § 27.003. We
will affirm the district court’s partial denial of Appellants’ motion to dismiss.
1
All citations in this opinion to the TCPA are to the version in effect before the
September 2019 amendments became effective. See Act of May 21, 2011, 82d Leg., R.S.,
ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code
§§ 27.001–.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5, 2013
Tex. Gen. Laws 2499, 2499–500 (the version at issue in this opinion); see also Act of
May 20, 2019, 86th Leg., R.S., H.B. 2730, §§ 1–9 (the 2019 amendments), 11–12 (providing that
a suit filed before the amendments become effective “is governed by the law in effect
immediately before that date”).
App.37
BACKGROUND
On February 14, 2018, a shooter killed seventeen people at Marjory Stoneman
Douglas High School in Parkland, Florida. That same day, the Infowars.com website published
an article authored by Daniels entitled “MSM already covering it up.” 2 The article provided
information and commentary relating to the Parkland shooter, Nikolas Cruz, and included a clear
photo of Marcel Fontaine below the text “another alleged photo of the suspect shows communist
garb” and with the caption “Shooter is a commie.” 3 In the photo, Fontaine is wearing a red shirt
that features several famous communist leaders engaging in merriment. The photo remained on
Infowars.com for about thirteen hours before it was removed, and no correction was issued at
that time explaining that the photo was actually not that of the shooter. The parties appear to
agree that Fontaine, who has never been to Florida, was not involved in the Parkland shooting.
By March 1, 2018, Fontaine requested that Appellants issue a correction pursuant
to section 73.055 of the Civil Practice and Remedies Code. A month later, Fontaine filed the
underlying lawsuit, and Appellants then issued a statement on the website noting that “we
showed a photograph of a young man that we had received and stated incorrectly that it was an
alleged photo of the suspected shooter at Douglas High School in Parkland, Florida. . . .”
Fontaine’s lawsuit alleged claims for defamation and defamation per se as well as intentional
infliction of emotional distress. The petition further alleged that all defendants were engaged in
a conspiracy and that Alex E. Jones 4 and Infowars, LLC are liable under the doctrine of
2
The record shows that on Infowars.com, “MSM” refers to mainstream media.
3
The article, which is attached to Daniels’s affidavit, identifies the shooter as Nikolas
Cruz and also provides the voting record and other information for “Nicolas Cruz” in addition to
providing Fontaine’s photo.
4
Alex E. Jones is a defendant in the underlying litigation but is not a party to this appeal.
2
App.38
respondeat superior.
Jones and Appellants filed a motion to dismiss under the TCPA.
The district court granted the motion as to Fontaine’s claim for intentional infliction of emotional
distress, but denied the motion as to the defamation claim. Appellants raise three issues on
appeal: (1) all claims against Infowars, LLC should have been dismissed because there is no
evidence to support any cause of action against Infowars, LLC; (2) Fontaine failed to establish
clear and specific evidence to support a prima facie case of defamation, conspiracy, and
respondeat superior against Daniels and Free Speech Systems; and (3) the district court failed to
award Appellants their reasonable and necessary attorney’s fees as a result of the partial grant of
their motion to dismiss.
ANALYSIS
“Reviewing a TCPA motion to dismiss requires a three-step analysis.” Youngkin
v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the party moving for dismissal must show by
a preponderance of the evidence that the TCPA applies to the legal action against it. Tex. Civ.
Prac. & Rem. Code § 27.005(b). If the movant meets that burden, the nonmovant must establish
by clear and specific evidence a prima facie case for each essential element of its claim. Id.
§ 27.005(c). “The words ‘clear’ and ‘specific’ in the context of this statute have been interpreted
respectively to mean, for the former, ‘unambiguous,’ ‘sure,’ or ‘free from doubt’ and, for the
latter, ‘explicit’ or ‘relating to a particular named thing.’” Hawxhurst v. Austin’s Boat Tours,
550 S.W.3d 220, 230 (Tex. App.—Austin 2018, no pet.) (quoting In re Lipsky, 460 S.W.3d 579,
590 (Tex. 2015)). “In determining whether a legal action should be dismissed under [the TCPA],
the court shall consider the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a) (“Evidence”).
3
App.39
Collectively, these elements require that the “plaintiff must provide enough detail to show the
factual basis for its claim.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam).
If the nonmovant satisfies that requirement, the burden shifts back to the movant to prove each
essential element of any valid defenses by a preponderance of the evidence. Tex. Civ. Prac. &
Rem. Code § 27.005(d).
The parties do not dispute that the TCPA applies to the defamation action against
Appellees, and Appellants have not asserted any defense. As a result, only the second step of the
TCPA analysis is at issue here—whether Fontaine established by clear and specific evidence a
prima facie case for each essential element of his defamation claim. We review de novo whether
the parties met their respective burdens of proof under section 27.005. Long Canyon Phase II &
III Homeowners Ass’n v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.).
Liability of Infowars, LLC
Appellants contend that Fontaine failed to establish any evidence of Infowars,
LLC’s involvement in publication of the alleged defamation, thereby falling short of the TCPA’s
requirement to establish a prima facie case for liability as to Infowars, LLC. In support of his
contention that Infowars, LLC is a proper defendant in this case, Fontaine filed an affidavit by
Marcus Turnini, who averred that he had visited the Infowars.com website and attached as
exhibits to his affidavit a true and correct copy of portions of the website as they existed on
August 1, 2018. Appellants objected that the district court should have excluded Turnini’s
affidavit on the grounds that the affiant was not an expert, did not profess to have personal
knowledge about the contents of the webpages attached to his affidavit, and did not provide any
4
App.40
explanation about the contents of the webpages at the time the alleged defamatory article was
published. On appeal, they assert that the affidavit should not have been admitted or considered.
In his affidavit, Turnini states that he is a paralegal, that he visited two separate
links containing Infowars.com’s terms of service, and that he attached true and correct copies of
the website pages located at those links to his affidavit. Turnini is not acting as an expert for
Fontaine. In this instance, Turnini’s affidavit explains that he has personal knowledge of the
contents of the exhibits by stating that he visited the website on August 1, 2018, and printed a
true and correct copy of its contents. Although Appellants argue that evidence of the state of the
website in August does not account for what might have been on the website on February 14,
2018, they do not present evidence or argument that the Terms of Use were different on
February14, 2018, or any time thereafter. The district court’s order does not reveal whether the
district court relied on Turnini’s affidavit, but we conclude on this record that the district court
would not have abused its discretion in considering Turnini’s affidavit. See Melton v. CU
Members Mortg., __ S.W.3d __, __ No. 03-18-00363-CV, 2019 Tex. App. LEXIS 6507 at * 9
(Tex. App.—Austin, 2019) (no pet. h.) (“We review rulings on the admission or exclusion of
evidence for abuse of discretion.”).
At the time Turnini provided his affidavit, the online document containing
Infowars.com’s terms of service was entitled “INFOWARS LLC, TERMS OF USE &
PRIVACY POLICY” (Terms of Use).
The Terms of Use expressly applied to
“planet.infowars.com and all other Uniform Resource Identifier[s] we use to provide our
Products and Services.” A Uniform Resource Identifier (URI) is a sequence of characters used
to identify “resources via separately defined extensible sets of naming schemes.” Drauglis v.
Kappa Map Grp., LLC, 128 F. Supp. 3d 46, 56-57 (D.D.C. 2015). URI is a broad term that
5
App.41
includes Uniform Resource Locators (URLs), otherwise known as links. Id. at 57. Thus, the
website link Infowars.com qualifies as a URI. The Terms of Use describe users’ rights and
abilities to use Infowars.com and provide for legal consequences for noncompliance. Under the
Terms of Use, “‘We,’ ‘us,’ and ‘our’ means Infowars, LLC, a Texas limited liability company.”
Some of the rights and responsibilities specified by the Terms of Use include how “notices from
us shall be sent” to users, how “We” gather information about users to use and to share with third
parties, and how “We may review and delete any content you post on the Website or elsewhere
utilizing our Services or System if we determine, in our sole discretion, that the content violates
that rights of others, is not appropriate for the Website, or otherwise violates this Agreement.”
In other words, under the Terms of Use, use of Infowars.com initiated a relationship between the
user and Infowars, LLC, and Infowars, LLC was involved in the website’s operation. In the
absence of argument or evidence that the contents of the Terms of Use changed between
February 14, 2018, and August 1, 2018, we conclude that Fontaine has established by clear and
specific evidence the minimum quantum of evidence necessary to support a rational inference
that Infowars, LLC is a proper defendant.
Prima Facie Case for Defamation
The TCPA requires Fontaine to establish by clear and specific evidence a prima
facie case for each essential element of his defamation claim against Appellants. Tex. Civ. Prac.
& Rem. Code § 27.005(c). “In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was said, the defamatory nature of
the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion
to dismiss.” In re Lipsky, 460 S.W.3d at 591. The TCPA “does not impose an elevated
6
App.42
evidentiary standard or categorically reject circumstantial evidence.” Id. Defamation occurs
when “(1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the
requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a
private individual); and (4) damages (unless the statement constitutes defamation per se).”
D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017). “The status of the
person allegedly defamed determines the requisite degree of fault.” In re Lipsky, 460 S.W.3d at
593. A private individual need prove only negligence, whereas a public figure or official must
prove actual malice.
(Tex. 1998)).
Id.
(citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571
Finally, a plaintiff must plead and prove damages, unless the defamatory
statements are defamatory per se. Id. (citing Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys.
Landfill, Inc., 434 S.W.3d 142, 162 n.7 (Tex. 2014)). Defamation per se refers to statements that
are so obviously harmful that general damages may be presumed. Id.
False and Defamatory Publication
“Texas recognizes the common-law rule that defamation is either per se or per
quod.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). “Defamation
per se occurs when a statement is so obviously detrimental to one’s good name that a jury may
presume general damages, such as for loss of reputation or for mental anguish.” Id. (citing
Hancock v. Variyam, 400 S.W.3d 59, 63-64 (Tex. 2013)). Defamation per quod is simply
defamation that is not actionable per se. Id.
Appellants acknowledge that Fontaine is not the Parkland shooter, who at the time
of the shooting had already been identified as another person. They nonetheless assert that by
publishing a photograph of Fontaine with the accompanying text “another alleged photo of the
suspect shows communist garb,” “Daniels accurately reported” what he had seen on social
7
App.43
media. Appellants assert that Daniels obtained Fontaine’s photo from www.4chan.org (4chan), a
website that allows users to post images and text anonymously. See United States v. Kernell,
667 F.3d 746, 749 (6th Cir. 2012) (“4chan is known for its culture of anonymous posting, and
often contains content that is offensive or socially unacceptable.”); Vangheluwe v. Got News,
LLC, 365 F. Supp. 3d 836, 846-48 (E.D. Mich. 2019) (determining that the fair reporting
privilege and wire-service privilege did not apply where reporter relied on information found on
4chan and discussing 4chan’s unreliability as a news-gathering agency). Daniels had also seen
Fontaine’s photo “trending on social media, including Twitter.” Specifically, Daniels relies on
Fontaine’s photo having been tweeted by an anonymous user, @LagBeachAntifa7, from an
account called Laguna Beach Antifa. Fontaine’s pleadings assert that the Laguna Beach Antifa
account is a parody account and was not a reliable news source. Appellants assert that these
sources formed the basis for Daniels’s belief that the photo was of the Parkland shooter and that
by using the adjective “alleged,” Daniels absolved himself of liability for defamation because an
anonymous user on 4chan and an anonymous user on Twitter had both alleged that the photo was
of the Parkland shooter.
The precise text accompanying Fontaine’s photo on 4chan had the title “Florida
Shooter Was Commie!” and the text “FLORIDA SHOOTER WAS A CONFIRMED LIBERAL
COMMIE!!! What r we going to do to help the country defend itself against the red scare/pol? 5
A million bucks says he supports ANTIFA too!” Laguna Beach Antifa tweeted the photo with
the statement “Please don’t RT 6 this picture of #NicholasCruz wearing an Antifa shirt. We don’t
need anymore bad press. #BrowardCounty #floridaschoolshooting.” Although Daniels states
5
The record shows that “/pol” refers to 4chan’s “Politically Incorrect” discussion board.
6
“RT” means to “retweet”—to electronically share the initial tweet on Twitter.
8
App.44
that he obtained the image from the 4chan post, the only 4chan post contained in the record has a
time stamp showing that it was made after Daniels posted his article to Infowars.com, so it would
be difficult to show that Daniels relied on that post to confirm the identity of the shooter before
posting his article. The Laguna Beach Antifa tweet was posted about two hours before Daniels
published his article. Fontaine asserts that Daniels could not have relied on any allegation from
the tweet, which Fontaine describes as “an obvious joke,” in that the tweet shares a photo that it
asks others not to share. The record also contains an excerpt showing that the day before the
Parkland shooting, the top Google search result for Laguna Beach Antifa’s Twitter account
described it as a parody account. Fontaine further explains in his response to the motion to
dismiss that a reverse image search of the photo in question would have revealed that Fontaine’s
photo had been circulating on 4chan for days before the shooting with various comments
mocking Fontaine and his shirt. Fontaine also notes that the image used by Daniels contains, as
part of the image itself, the caption “Shooter is a commie,” which is not included in either of the
two sources that Daniels alleges he relied on, suggesting that the image used by Daniels
originated elsewhere.
Even accepting Appellants’ argument that Daniels based his belief regarding the
shooter’s identity on the tweet and that addition of the word “alleged” would render the text of
the article technically accurate, it is not likely that Daniels was entitled to rely on the anonymous
tweet. See McDonald v. Raycom TV Broad., Inc., 665 F. Supp. 2d 688, 690 (S.D. Miss. 2009)
(stating “as a general rule, one who repeats a defamatory statement attributed to another cannot
avoid liability merely by showing that the statement was made by the other person because,
under the republication rule of defamation, one who repeats slander or libel from another
endorses it” but noting an exception for reports of an official action subject to the fair report
9
App.45
privilege); see also Neely v. Wilson, 418 S.W.3d 52, 61 (Tex. 2013) (“[I]t is a well-settled legal
principle that one is liable for republishing the defamatory statement of another.”). Moreover, “a
plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are
published in such a way that they create a substantially false and defamatory impression by
omitting material facts or juxtaposing facts in a misleading way.” Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 115 (Tex. 2000). The “meaning of a publication, and thus whether it is
false and defamatory, depends on a reasonable person’s perception of the entirety of a
publication and not merely on individual statements.” Id. As a result, a defendant may be liable
for a publication that gets the details right but fails to put them in the proper context and thereby
gets the story’s gist wrong. Id.; see Dallas Morning News, 554 S.W.3d at 628 (explaining that
defamation may arise from explicit statements, from the gist of an entire article, or “implicitly
from a distinct portion of the article rather than from the article’s as-a-whole gist.”). Although in
isolation the description “alleged photo” might be literally true,—i.e., that the photo is said to be
that of the person thought to be the shooter—the statement as a whole is reasonably capable of
defamatory meaning because a reasonable person’s perception could be that the photo depicted
the person thought to be the shooter. See James v. Fort Worth Telegram Co., 117 S.W. 1028,
1029 (Tex. App.—Fort Worth 1909, no writ) (“persons who knew the plaintiff well, and knew
her residence and family, would probably not be misled, but would at once conclude that the
picture was inserted by mistake; but there may well be a considerable number of persons, who
only know the plaintiff by sight, or have merely a slight acquaintance, who would recognize the
picture at once, and would conclude that the article in fact did refer to the plaintiff, concluding (if
they knew the plaintiff’s name at all) that such name was merely another alias.”). In a case
10
App.46
where a newspaper published the photo of a man named Jesse James, but erroneously identified
him as Daniel Herring, who had committed homicide, one court wrote:
There can be no doubt that imputing to a person that he has killed a human being
under circumstances authorizing his arrest and detention by officers of the law
tends to injure his reputation and to expose him to public hatred. . . . It is plain,
we think, it should be construed as imputing the homicide to the man whose
picture, forming a part of the publication, was identified by references to it as that
of the man who did the killing. The evidence was uncontradicted that the picture
was a reproduction of a photograph of appellant, and not a picture of the man
guilty of the homicide. Therefore it is clear, we think, that the publication should
be held to have imputed the killing to appellant.
Id. That court held that the “imputation in the publication” was “per se libelous.” Id. at 1030.
Because Appellants published Fontaine’s photograph in an article describing him as the Parkland
shooter, we conclude that Fontaine has established by clear and specific evidence a prima facie
case that the article containing his photo was false and defamatory per se.
Appellants assert that Fontaine has also failed to make a prima facie case for
conspiracy and respondeat superior. However, because civil conspiracy is “derivative,” courts
do not analyze the trial court’s refusal to dismiss plaintiffs’ causes of action for conspiracy
separately from its refusal to dismiss their other causes of action. Warner Bros. Entm’t, Inc. v.
Jones, 538 S.W.3d 781, 797 (Tex. App.—Austin 2017, pet. granted). Similarly, the doctrine of
respondeat superior is not a separate “legal action” and is not addressed separately from the
underlying cause of action for defamation in a TCPA motion to dismiss. See Tex. Civ. Prac. &
Rem. Code § 27.001(6).
Requisite Degree of Fault
Appellants urge that Fontaine should have to prove that they acted with actual
malice because Fontaine’s pleading, while asserting a host of facts, ultimately alleges that
11
App.47
Appellants acted with actual malice—that is, that Appellants published the defamatory article
with knowledge of its falsity or with reckless disregard for the truth or falsity of the statements
contained therein. However, Fontaine alleges a claim for defamation, asserts facts in his petition
to explain the basis for his claim, and makes the uncontroverted assertion that he “is a private
individual and is neither a public official nor a public figure.” “In Texas, courts apply a
negligence standard in cases involving a private plaintiff seeking defamation damages from a
media defendant.” D Magazine Partners, 529 S.W.3d at 434 (citing Neely, 418 S.W.3d at 61).
Under a negligence standard, a defendant is negligent if the defendant knew or should have
known a defamatory statement was false, unless the content of the false statement would not
warn a reasonably prudent editor of its defamatory potential. Id.
Appellants rely on Daniels’s assertion that he relied on the 4chan post and a tweet
from a parody Twitter account to show that he did not publish the article with the requisite
degree of fault. Appellants ask this Court to hold that using an image from an anonymous online
source that is corroborated by another anonymous online source suffices to bar Fontaine from
proceeding with a suit for defamation. The record does not contain a 4chan post that was
published before Daniels posted his article; the only copy provided was published later.
Fontaine argues that the timeline suggests that Daniels may not have relied on a 4chan post at all.
The sole remaining publication on which Daniels might have relied is the tweet. Fontaine
included images in his response to the motion to dismiss to support his assertion that the Twitter
account on which Daniels relied was an obvious parody account and that on its face the tweet
contains a joke indicating that it is not a serious source of information. Fontaine further alleges
that, in addition to the dubious nature of Appellants’ sources of information, failure to perform
even the most basic review of the information, by performing a reverse image search, showed
12
App.48
that Appellants were intentionally avoiding the truth and were at least negligent in publishing the
photo in the article. This Court has determined that reliance on a single dubious source for
allegations may demonstrate more than mere negligence where there are obvious reasons to
doubt the veracity of reports. Warner Bros., 538 S.W.3d at 807; cf. Harte-Hanks Commc’ns, Inc.
v. Connaughton, 491 U.S. 657, 692 (1989) (concluding there was prima facie evidence of
recklessness by citing undisputed evidence that publisher failed to make any effort to interview
key witness or to listen to tapes of key witness’s interview); D Magazine Partners, 529 S.W.3d
at 434 (holding that a magazine acted with negligence when it “failed to take reasonable steps to
verify the accuracy of the story’s gist and should have known the gist was false”). On this
record, and given the limited scope of our TCPA review, we conclude that Fontaine has
established by clear and specific evidence the minimum quantum of evidence necessary to
support a rational inference that Appellants acted at least negligently.
Damages
“Damages . . . are not always an essential element of defamation.” Brady v.
Klentzman, 515 S.W.3d 878, 886 (Tex. 2017) (citing In re Lipsky, 460 S.W.3d at 593). “If the
statement is defamatory per se, then nominal damages may be awarded without proof of actual
injury because mental anguish and loss of reputation are presumed.” Id. To recover actual
damages for loss of reputation or mental anguish or for economic loss, a plaintiff must present
evidence of the existence and amount of these damages. Id. “But this is optional. The plaintiff
can vindicate his name and obtain nominal damages without evidence of actual injury.” Id.
Accordingly, having determined that Fontaine has established a prima facie case that Appellants’
publication was defamatory per se, we may presume nominal damages, which are sufficient to
defeat Appellants’ motion to dismiss. See In re Lipsky, 460 S.W.3d at 596 (“Pleading and proof
13
App.49
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.”). We therefore need not address Fontaine’s affidavit and supplemental
declaration that seek to establish his general and special damages. See id.
Attorney’s Fees
Appellants assert that the district court abused its discretion by failing to award
them “reasonable attorney’s fees.” See Tex. Civ. Prac. & Rem. Code 27.009(a)(1) (requiring an
award of “reasonable attorney’s fees . . . as justice and equity may require” if the court orders
dismissal under the TCPA). Whether attorney’s fees are reasonable is generally a question of
fact. See Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). We review a trial court’s decision
to award attorney’s fees for an abuse of discretion and review the amount awarded under a legalsufficiency standard. Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671
(Tex. App.—Austin 2006, no pet.). A trial court abuses its discretion if its decision “is arbitrary,
unreasonable, and without reference to guiding principles.” Goode v. Shoukfeh, 943 S.W.2d 441,
446 (Tex. 1997).
A party seeking attorney’s fees must prove the amount as well as the
reasonableness and necessity of the fees sought. Fawcett v. Grosu, 498 S.W.3d 650, 666
(Tex. App.—Houston [14th Dist.] 2016, pet. denied); see El Apple I, Ltd. v. Olivas, 370 S.W.3d
757, 762-63 (Tex. 2012).
The district court granted Appellants’ motion to dismiss relating to Fontaine’s
claim for intentional infliction of emotional distress, essentially agreeing with Appellants that it
was legally barred because it was based on the same facts as the defamation claim. Appellants
submitted evidence showing they incurred attorney’s fees in the amount of $59,675 as of two
14
App.50
days before the hearing, and anticipated incurring an additional $5,000 through the conclusion of
the hearing. At the hearing on the motion to dismiss, Fontaine argued that, in the event of a
partial dismissal, he would be liable for a “pro rata share of the attorney’s fees” if a defendant or
cause of action were carved out of the case. Counsel for Fontaine expressly objected to the
amount of attorney’s fees sought by Appellants: “We do object to the amount of the affidavit in
terms of we don’t believe that those are reasonable attorneys’ fees,” and counsel for both parties
presented specific arguments regarding the reasonableness of the fees. Counsel for Fontaine also
stated he understood that he might not be able to survive a motion to dismiss as to both the claim
for defamation and for intentional infliction of emotional distress based on this Court’s opinion
in Warner Brothers. See 538 S.W.3d at 814 (holding the trial court erred by not dismissing
intentional infliction of emotional distress claim that was based on the same facts as plaintiff’s
defamation claim). The district court acknowledged that it was required to award attorney’s fees
“on that portion of the case that’s dismissed,” adding “you were put in this sort of difficult choice
of having to decide whether to keep the gap filler for belt and suspenders purposes knowing that
when you lose the belt or the suspenders, you’re going to have to pay for it.” Noting that the
declaration in support of the fees did not segregate fees based on causes of action or defendants,
the district court awarded Appellants $5,000 for attorney’s fees for the portion of the TCPA
motion that resulted in dismissal of Fontaine’s claim for intentional infliction of emotional
distress. In this case, we cannot conclude that the district court abused its discretion in awarding
Appellants $5,000.
15
App.51
CONCLUSION
Having determined that Fontaine established a prima facie case for defamation,
we affirm the district court’s order partially denying Appellants’ motion to dismiss.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Kelly
Affirmed
Filed: October 24, 2019
16
App.52
APPENDIX E
Affidavit Of Kit Daniels And Accompanying Exhibits In Marcel
Fontaine v. Alex E. Jones, et al., No. D-1-GN-18-001605 (June
5, 2018)
App.53
Appendix 4
NO. D-1-GN-18-1605
MARCEL FONTAINE.
§
§
Plai111i[J;
§
IN TIIE DISTRICT COURT OF
s
ss
ss
~
V.
ALEX E. JONES, INFOWARS. LLC.
FREE SPEECH SYSTEMS, LLC and
KIT DANIELS.
TRAVIS COUNTY.TEXAS
§
§
§
ss
Defi_,ndants.
459th .JUDICIAL DISTRICT
DECLARATION OF KIT DANIELS
L Kit Daniels. do hereby declare under penalty or pe1:jury that the following is true and
correct.
1.
My name is Kit Daniels.
My date of birth is July 27. 1984. and my business
address is c/o Free Speech Systems, LLC P.O. Box 19549. Austin, Texas 78760. I am a
named defendant in this lawsuit.
make this Declaration.
I am fully competent and capable in all respects lo
I have personal knowledge
Declaration, and they are true and correct.
or all or the facts stated in this
This declaration is submitted in connection
with Defendants' Motion to Dismiss (the ""Motion .. ) filed in the above-styled litigation.
2.
I am an editor, video journalist and social commentator for Free Speech Systems.
LLC ('"Free Speech"). Free Speech operates a website located at www.infowars.cum (the
"Info Wars Website"). As part of my duties. I regularly contribute editorial content to the
lnfoWars Websik. including material concerning breaking news. On February 14. 2018. I
created a posting concerning the breaking news surrounding the shooting at Douglas
High School in Parkland. Florida (which occurred that day).
031595-83488/ 4848-9436-6311.1-83488/ 4848-9436-6311.1-83488/ 4846-0312-0487.1-83488/ 4824-7810-5447.1-76073/ 4820-5462-40
75. 3· 76073/ 4820-5462 ·4075.2 · 76073 / 4820-5462-4075. 2
App.54
Page 93 of 328
3.
As part of that posting, I published an image (the "Challenged Image") of a man
that
had obtained from the popular image and weh hoard entitled 4Chan (www.
4chan.org) (the --4chan Website .. ).
I went to the 4Chan Website alter I had seen the
Challenged Image trending on social media. including Twitter. Attached as Exhibit 4 is a
true and correct copy of an example of a Twitter post by "Laguna Beach J\ntifa" that
features the Challenged Image and identifies the man pictured in the photo as Nicholas
Cruz.
That ··twceC is dated February 14. 2018 at 2:37 pm (hours before I posted the
Challenged Image on the Info Wars Website). The original poster of the ·'thread'' on the
4Chan Website that contained the Challenged Image also identified the image as the
Parkland, Florida shooter. Based upon that information. and the fact that the Challenged
Image was trending on social media. I believed that the Challenged Image was of the
Parkland, Florida shooting suspect. Attached as Exhibit I is a true and correct copy of a
webpage from the 4Chan Website where one of several iterations of the Chaf[engcd
Image appeared.
As such, as part of my posting, I added the following text that
immediately preceded the Challenged Image: "[a]nd another alleged photo of the suspect
shows communist garb," (together ,vith the Challenged Image. the ··challenged
Publication''). In doing so, I accurately reported on the Info Wars Website what the 4Chan
original poster had reported: that the Challenged Image was that of the Parkland, Florida
shooter.
did not use or publish the Plaintiff's name as part of the Challenged
Publication, nor \Vas I aware of any information at the time of publication that indicated
that the Challenged Image was not an alleged photo of the Parkland shooting suspect. In
fact, the publication of the Challenged Image on 4Chan confirmed the reports that I had
031595·83488/ 4848-9436-6311.1 ·83488/ 4848·9436·6311.1 ·83488/ 4846-0312 ·0487. 1-83488/ 4824· 7810·5447. 1
2
App.55
Page 94 of 328
seen on social media. including Twitter. Attached as Exhibit 2 is a copy of webpagcs
from the InfoWars Website that contained the Challenged Publication.
Neither Alex
Jones nor lnfoWars LLC had any involvement with. or approval of, the content or
publication of the Challenged Publication (i.e. the allegedly defamatory content). I had
no discussions with Alex Jones regarding the Challenged Image prior to the time that I
posted it on the Into Wars Website.
4.
The Challenged Publication was published on the InfoWars Website around 5:00
p.m. Central Time on February 14. 2018. By the morning of February 15. 2018. various
media outlets had identilied Nikolas Cruz as the suspected Parkland. Florida shooter
(based. at least in part. on high-definition images of Nikolas Cruz that were not available
as the news broke the allernoon of February 14. 2018}. Based upon those reports. I
realized that the Challenged Image was not a photo of Cruz. I then arranged to promptly
remove the Challenged Publication from the lnfoWars Website.
I did so voluntarily and
without any notice or demand from Plaintiff or his lawyers.
5.
Free Speech later published a ··retraction. clarification and correction" statement
(the --Retraction'") concerning the Challenged Publication in its original posting on the
InfoWars Website.
A true and correct copy of the webpage featuring the Retraction -
which is also available via a '·Corrections" link on the InfoWars Website - is attached
hereto as Exhibit 3.
Executed in Travis Countv. State of Texas.
.
. .
KVV Do..,__rv~~-=--=b'----_
Kit Daniels
Dated: June 5. 20 I 8
031595-83488/ 4848·9436-6311.1-83488/ 4848-9436·6311.1-83488/ 4846·0312·0487 .1 ·83488/ 4824· 7810-5447 .1
3
App.56
Page 95 of 328
Exhibit 1
App.57
Page 96 of 328
Exhibit 1 to Declaration
Page I of 2
/pol/ - Pol itically Incorrect » Thread # 160491781
Archives: ( adv/ f / hr/ o / pol / s4s I sp I tg I trv / tv / x ] Boards: [ plebs ]
/pol/ - Politically Incorrect •
4chan ~
Index ..
NSFW
Ghost
Gallery
Stats
)
( Search or insert post number
Florida Shoote r Was A Commie ! Anonymous (1 / 1 / ?]
ID : PmMVrz3k Wed 14 Feb 2018 17: 50: 12
No.160491781
View Reply Original Report
FLORIDA SHOOTER WAS A CONFIRMED LIBERAL
COMMIE!!!
What r we going to do to help the country defend itself against
the red scare /pol?
A million bucks says he supports ANTIFA too!
112KiB, 720x960, ded_red.jpg
View Same Google iqdb SauceNAO
it.
Subject
Name
Password
» 160491781
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hllp://archi ve.4plcbs .org/pol/thrcad/ 160491 78 1/ App.58
Page 97 of 328
5/7/20 18
/pol/ - Politically Incorrect » Thread # 160491781
Foo/Fuuka lmageboard 2.2.0 • Asagi Fetcher
Page 2 of 2
Change Language
Change Theme
Transparency - FAQ - Credits & Linl1s - Twitter
http://archive.4plebs.org/pol/thrcad/16049 l 78 l / App.59
Page 98 of 328
5/7/2018
Exhibit 2
App.60
Page 99 of 328
Exhibit 2 to Declaration
5/7/2018
Reported Florida Shooter Dressed as Communist, Supported ISIS » Alex Jones' lnrowars: There's a war on for your mind!
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App.61
STORE
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1/11
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Reported Florida Shooter Dressed as Communist, Supported ISIS,, Alex Jones' lnfowars: There's a war on for your mind!
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lnfowars.com - FEBRUARY_1~,~2_018 • Comments
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Alleged photos of the suspected Florida high school shooter make reference to various
ideologies including communism and perhaps ISIS, and voter records suggest 19-ycarold Nicolas Cruz was a Democratic voter.
,II AT&T LTE ~•·
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App.62
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2/11
Reported Florida Shooter Dressed as Communist, Supported !SIS » Alex Jones' lnfowars: There's a war on ror your mind!
5/7/2018
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Additionally, the shooter's garb is very similar to the style worn by ISIS fighters in Syria.
Politi Diva TM
@realPolitiDiva
Parkland Killer, Nicolas Cruz, was a known security threat & was
not allowed to carry a backpack to school last year. Also
belonged to Middle East Resistance groups on social media. A)
How did he get in being a known-threat? 8) Was this terrorrelated?
5:52 PM - Feb 14, 2018
626
523 people are talking about this
The lnstagram account was taken down soon after the suspect was a1Tested.
T he shooter was a lso suspected of having planted bombs, accord ing to the police scanner.
App.63
https://web.archive.org/web/20180215003538/inrowars.com/report-norida-shooter-lnspired-by-1s1s-allahu-akbar
Page 102 of 328
3/11
5/7/2018
Reported Florida Shooter Dressed as Communist. Supported ISIS 11 Alex Jone s' lnfowars: There's a war on for your mind!
I
I
listed as a Democratic voter in Oakland Park, Florida, which may be the suspect (address
blurred out lo protect the innocent otherwise):
QOV
22 likes
cruz_nikolas Well at least we now know what it means
when a sand durka says "allahu Akbar"
VI' \\ 1 I 1) co111111enb
cruz_nikolas
•••
Full Name
Nombre complete : NICOLAS CRUZ
Street Address
Direcci6n ·
City
Ciudad : OAKLAND PARK
Zip Code
C6digo postal : 33311
County Name
Condado : BROWARD
Voter Gender
Genera del votante : Male
App.64
h ttps ://web .archive.orglwob/2018021500 3538/infowa rs.com/report-florida-shooter-Inspired-by-1s1s-allahu-akbar
Page 103 of 328
4/11
5/7/2018
Reported Florida Shooter Dressed as Communist, Supported ISIS » Alex Jones' lnfowars: There's a war on for your mind!
Party
Partido : Florida Democratic Party
Voter Status
Calificaci6n como votante · Active*
And another alleged photo of the suspect shows communist garb:
R:O
Shooter is a commie:
REEEEEEEEEEEEEE
This screenshot, found on a Japanese cartoon image board, was apparently taken right after
the suspect was apprehended - and right before lnstagram nixed the account:
cruz_nlkolas • follow
Page
many ttmes you eno up nang,ng
your 104
sen of 328
,.
hllps://web. archive .orglweb/20180215003538/lnfowars.comlreport-norlda-sApp.65
hooter-lnspired-by-Isis-allahu-akbar
5/11
Reported Florida Shooter Dressed as Communisl, Supported ISIS » Alex Jones' lnfowars: There's a w ar on for your mind!
5/7/2018
moverhe<ker BORN TO DIE WORLD iS A
FUCK Kill Em All 1989 I am trash man
410.757.864.530 DEAD COPS.
21.Jake.21 Have fun in hell asshole
angelmazerati_ Fuck you puss)'
lllcocknall FUCK U U UGLY ASSHOLE
grvyson hope u rot
paytontorbeck Fucking Disgusting.
traceyyb You re a stupid piece of shit and I
hope yoLi get fucked up the ass in Jail until
your bulthole bleeds. Once that ,s over I
hope you die a slow painful death :) happy
00
105 likes
Log ,n
,, , ,
It's possible the suspect is simply mentally disturbed and latched onto various ideologies to
fill a sense of emptiness.
Facebook: https://www.facebook.com/RcalKitDaniels
Twitter:
RELATED ARTICLES
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Exhibit 3
App.72
Page 111 of 328
Exhibit 3 to Declaration
4/1812018
Reported Florida Shooter Discussed "Allahu Akbar" on lnstagram Profile » Alex Jones· lnfowars: There's a war on for your mind!
Reported Florida Shooter Discussed "Allahu Akbar" on Instagram
Profile
Gunman described as nihilist loser
Retractio11, c/ariflcatlo11, am/ correctlo11: On this webpage 011 Fehr11<11J' I 4. 20 IX, we sho,vecl "photograph ofa yo1111g ma111h111 we had
received 1111d S/(/ted inrnrrectly 1/,111 it It '{/.\' 1111111/egecl photo nfthe .1'11.1'/JCl'led shooter Ill Douglas I Jig/, Schno/ in Parkltmd. Florida. l,!fowar.1·
promptly removed the co111e111s o.fthis webpa1:e within /1011/'s f/{ler pns1i111: 011 Febmary 14. 2018. 7'l,e young 111<111 whose picture was sl,011111 later
con//tct(!(/ 11s and asked tlwl we take the photo down, b111 W<' Juul already done so several clays be.fore. We regret that this c•,.,.or occ111·recl.
UPOA1't;: Yld,•o: Second Shootl'[ llcportcd in f'locida Massacre
Alleged photos of the suspected Florida high school shooter nrnke reference lo various ideologies, suggesting the gunman was an
Isolated nihilist with no political mollvc.
f11fowurs talked to a survivor of the shooting who said his brother knew the gunman, Nikolas Cruz, and hud worked on school projects with
him. Cruz w1is described ns being n "disgrnntlcd nihilist" who was obsessed with hunting nnd wa111ecl to join the rrnlitary.
App.73
Page 112 of 328
1/4
4/18/2018
Reported Florida Shooter Discussed "Allahu Akbar" on lnstagram Profile» Alex Jones' lnfowars: There's a war on for your mind!
,el AT&T LTE r·
4:41 PM
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1/18/16
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Additionally, the shooter's garb is very similar 10 the style wom by ISIS fighters in Syria.
The lnstagrnm account was taken down soon after the suspect was arrested.
The shooter was also suspected ofhnving planted bombs, according to the police scanner.
Internet sleuths have suggested the following scrcenshot reveal Cruz may have had an anti-Islam slant back in 20 15, but interestingly, there's
also a 19-year-old Nicolas Cruz who's listed as a Democratic voter in Oakland Park, Florida, which may be the suspect (address blurred 0111 to
protect the innocent otherwise):
App.74
Page 113 of 328
2/4
4/18/2018
Reported Florida Shooter Discussed "Allahu Akbar" on lnstagram Profile » Alex Jones' lnfowars: There's a war on for your mind!
22 likes
cruz_nikolas Well at least we now know what it means
when a sand durka says "allahu Akbar"
i.
...
cruz_nikolas
Full Name
Nombre completo : NICOLAS CRUZ
Street Address
. . ...
D.,recc,'6 n .
J ..l§i•
.1,· · .. ····
City
Ciudad : OAKLAND PARK
Zip Code
C6digo postal : 33311
County Name
Condado : BROWARD
Voter Gender
Genera del votante : Male
Date Of Registration
Fecha de inscripci6n :
Party
Partido : Florida Democratic Party
Voter Status
Calificaci6n coma votante : Active*
This screenshot, found on a Japanese cartoon image board, was apparently taken right after the suspect was apprehended •· and right before
lnstagram nixed the account:
App.75
Page 114 of 328
3/4
411&/2018
Reported Florida Shooter Discussed "Allahu Akbar' on lnstagram Profile » Alex Jones' lnfowars: There's a war on for your mind!
cruz_nlkolas •
follow
many 1,mes you ena up nang1ng your se11
with your sheets. faggot ass doesn't
deserve to breathe our oxygen
kurtlandry7 Screw you burn 1n hell piece of
Shit
fxxkev FUCK YOU
moverhecker BORN TO DIE WORLD IS A
FUCK Kill Em All 1989 I am trash man
410,757,864.530 DEAD COPS.
21.Jake.21 Have fun In hell asshole
angelmazeratl_ Fuck you pussy
lilcocknail FUCK U U UGLY ASSHOLE
grvyson hope u rot
paytontorbeck Fucking Disgusting.
traceyyb You re a stupid piece of shit .ind I
hope you get fucked up the ass in j ail until
your butthole bleeds. Once that ,s over I
hope you die a slow painful death;) l1appy
00
105 likes
Log 1n
It's possible the suspci.:t is :.i111ply mentally disturbed and latched onto vorious ideologies to fill a sense of emptiness.
Faccbook: lllms·//www fncchnok .comfR®IKi1Q;rnjcls
Twitter:
App.76
Page 115 of 328
4/4
Exhibit 4
App.77
Page 116 of 328
Exhibit 4 to Declaration
6/112018
Laguna Beach Anlifa on Twitter. "Please donl RT this picture of #NicholasCruz wearing an Antifa shirt. We dont need anymore bad press . ...
archive.today Saved from bups://lwittor.com/LagBoachAnlifa7/status/963905010290581505
webpage capture
search
15 Fob 2018 03:33:19 UTC
All snapsholl from host ~
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Laguna Beach Antifa
•
@LagBeachAnt1fa7
Pleaset,dont RT this picture of #NicholasCruz
wearing an Antifa shirt. We dont need
anymore bad press. #BrowardCounty
#floridaschoolshooting
,'l7""-
2:37 PM• 14 Feb 2018
3 ,071 Relweets 1,512 likes
1 Boverly ~hlls Anllln. S T A R
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App.78
Page 117 of 328
1/4
APPENDIX F
Order Denying Petition For Review – The Texas Supreme
Court, Alex E. Jones, et al. v. Scarlett Lewis, No. 19-1050 (Jan.
22, 2021)
App.79
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
MR. THOMAS W. JEFFERIES
THE LAW FIRM OF T. WADE JEFFERIES
401 CONGRESS AVE., SUITE 1540
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.80
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
SCOTT NYITRAY
BURNETTTURNER
6034 W COURTYARD DR STE 140
AUSTIN, TX 78730-5064
* DELIVERED VIA E-MAIL *
App.81
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
MR. DAVID J. SACKS
SACKS LAW FIRM
2323 S. SHEPHERD DRIVE, SUITE 825
HOUSTON, TX 77019
* DELIVERED VIA E-MAIL *
App.82
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
MR. MARK BANKSTON
KASTER LYNCH FARRAR & BALL, L.L.P.
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.83
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
MR. WILLIAM OGDEN
KASTER LYNCH FARRAR & BALL LLP
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.84
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
DISTRICT CLERK TRAVIS COUNTY
TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
* DELIVERED VIA E-MAIL *
App.85
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
MR. MICHAEL L.R. BURNETT
BURNETTTURNER PLLC
6034 W. COURTYARD DR., SUITE 140
AUSTIN, TX 78730-5064
* DELIVERED VIA E-MAIL *
App.86
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 1/22/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. The Motion for
Sanctions is denied.
MR. JEFFREY D. KYLE
CLERK, THIRD COURT OF APPEALS
209 WEST 14TH STREET, ROOM 101
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.87
APPENDIX G
Order Denying Rehearing Of Petition For Review – The Texas
Supreme Court, Alex E. Jones, et al. v. Scarlett Lewis, No. 191050 (April 16, 2021)
App.88
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. THOMAS W. JEFFERIES
THE LAW FIRM OF T. WADE JEFFERIES
401 CONGRESS AVE., SUITE 1540
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.89
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MARK RANDAZZA
2764 LAKE SAHARA DRIVE
SUITE 109
LAS VEGAS, NV 89117
* DELIVERED VIA E-MAIL *
App.90
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. BRADLEY J. REEVES
REEVES LAW, PLLC
702 RIO GRANDE ST, STE 203
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.91
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
SCOTT NYITRAY
BURNETTTURNER
6034 W COURTYARD DR STE 140
AUSTIN, TX 78730-5064
* DELIVERED VIA E-MAIL *
App.92
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. DAVID J. SACKS
SACKS LAW FIRM
2323 S. SHEPHERD DRIVE, SUITE 825
HOUSTON, TX 77019
* DELIVERED VIA E-MAIL *
App.93
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. MARK BANKSTON
KASTER LYNCH FARRAR & BALL, L.L.P.
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.94
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. WILLIAM OGDEN
KASTER LYNCH FARRAR & BALL LLP
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.95
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
DISTRICT CLERK TRAVIS COUNTY
TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
* DELIVERED VIA E-MAIL *
App.96
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. MICHAEL L.R. BURNETT
BURNETTTURNER PLLC
6034 W. COURTYARD DR., SUITE 140
AUSTIN, TX 78730-5064
* DELIVERED VIA E-MAIL *
App.97
FILE COPY
RE: Case No. 19-1050
COA #: 03-19-00423-CV
STYLE: JONES v. LEWIS
DATE: 4/16/2021
TC#: D-1-GN-18-006623
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. JEFFREY D. KYLE
CLERK, THIRD COURT OF APPEALS
209 WEST 14TH STREET, ROOM 101
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.98
APPENDIX H
Opinion Of The Texas Court Of Appeals, Third District, Alex
E. Jones, et al. v. Scarlett Lewis, No. 3-19-00423-CV (October
11, 2019)
App.99
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00423-CV
Alex E. Jones; lnfowars, LLC; and Free Speech Systems, LLC, Appellants
v.
Scarlett Lewis, Appellee
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-006623, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Alex E. Jones; Infowars, LLC; and Free Speech Systems, LLC, appeal
from the district court’s order denying their motion to dismiss under section 27.003 of the Texas
Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.003. 1 We will affirm
the district court’s denial of Appellants’ motion to dismiss.
1
In this opinion, citations to the TCPA are to the version in effect before the September
2019 amendments became effective. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2,
2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code §§ 27.001–
.011), amended by Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, §§ 1–3, 5, 2013 Tex. Gen.
Laws 2499, 2499–500 (the version at issue in this opinion); see also Act of May 20, 2019, 86th
Leg., R.S., H.B. 2730, §§ 1–9 (the 2019 amendments); Act of May 20, 2019, 86th Leg., R.S.,
H.B. 2730, §§ 11–12 (providing that a suit filed before the amendments become effective “is
governed by the law in effect immediately before that date”).
App.100
BACKGROUND
Scarlett Lewis’s son was killed in the Sandy Hook Elementary School shooting in
December 2012. Lewis sued Appellants in October 2018 for intentional infliction of emotional
distress (IIED) related to Appellants’ statements in multiple broadcasts disputing whether the
shooting that killed Lewis’s son really occurred. Appellants filed a motion to dismiss Lewis’s
claim under the TCPA. Lewis sought limited discovery relating to the motion to dismiss, and the
district court entered orders in January and March directing Appellants to respond to Lewis’s
discovery requests. Because Appellants did not timely respond, the district court held a hearing
on a Motion for Sanctions on April 3. At that hearing, Robert Barnes, one of the attorneys for
Appellants, agreed to withdraw most of his TCPA motion to dismiss in lieu of turning over the
documents. He agreed that the motion would be reduced to a single legal question: “we’ll only
dispute whether or not someone can bring an intentional infliction of emotional distress claim
when they have never been individually identified by any statement.” The hearing continued:
THE COURT: You’re going to limit your motion to dismiss to a pure question of
law whether such a claim can be brought as an intentional infliction claim under
the law.
MR. BARNES: Yes, Your Honor.
THE COURT: And you will concede today, and you are for the record, that for
the purpose of deciding the motion to dismiss the Court can assume that the
statements made by Alex Jones were done with malice, that is to say, he knew
they were false and said them anyway.
MR. BARNES: We’re not disputing the intent issue as to this motion, that’s
correct, Your Honor.
2
App.101
THE COURT: So he intended to make false statements. The question is, can you
take that intent to make false statements and can an individual bring a claim for
intentional infliction on those facts?
MR. BARNES: Precisely, Your Honor. In other words, if the case is -- when
someone has not been personally mentioned -- in the defamation context they call
it colloquium, which the word colloquial comes from. And if no statement is ever
made about that person, can that person bring a claim for defamation or
intentional infliction of emotional distress when they have never been mentioned?
That -THE COURT: Well, what you’re saying now means they don’t even need to put
on any affidavits or anything on the hearing on March -- on May 2nd; they just
need to make legal briefing.
MR. BARNES: Precisely. That’s correct, Your Honor.
THE COURT: And it’ll be granted or denied based upon that legal argument.
MR. BARNES: Precisely.
Counsel explained that he intended for his clients to make this concession “from the get-go” but
was precluded from doing so because although he was working closely with Appellants’ Texas
attorney, he could not make the concession until his motion to be admitted pro hac vice was
granted. Barnes confirmed at several points that the sole issue in the TCPA motion to dismiss is
whether an IIED claimant must be identified individually in order to recover:
THE COURT: It’s going to be a pure legal argument on May 2nd whether this
claim, assuming everything they say is true -MR. BARNES: Absolutely.
THE COURT: -- assuming every factual allegation made by the plaintiffs is true,
they cannot bring this claim as a matter of law as an intentional infliction of
3
App.102
emotional distress claim. I’m sure the answer to this is going to be yes. That
would mean if that’s – that’s true as to all defendants. So they don’t need to worry
anymore either about the failure of the defendants to present an InfoWars
corporate representative who has a clue about InfoWars as a corporation.
MR. BARNES: That’s correct, Your Honor.
THE COURT: Because you heard me say, golly, if they prevail as to the other
defendants, you shouldn’t be able to kick out InfoWars because they haven’t been
able to get information about InfoWars.
MR. BARNES: That’s correct, Your Honor.
THE COURT: But that’s taken care of because it’s subsumed within the
concession, the broad concession you made earlier.
MR. BARNES: Yes, Your Honor.
Lewis’s counsel agreed to forgo pursuit of much of the motion for sanctions based on Barnes’s
agreement to limit the scope of the motion to dismiss. Barnes further asserted that the TCPA
motion to dismiss was the right vehicle to present this purely legal question because, unlike a
summary judgment, a ruling on the TCPA motion would allow the parties to appeal and settle the
legal issue without the parties first having to go to trial. At the subsequent hearing on the motion
to dismiss, the district court again conferred with Barnes, who confirmed his belief that the only
claim Lewis could bring was for IIED. Barnes further confirmed that he had agreed to treat the
facts of Lewis’s pleadings as true, including that all Appellants acted as a joint venture, joint
enterprise, single business enterprise, or alter ego, and that the sole question is whether an IIED
claim “must specify an individual.”
The district court denied the motion to dismiss. On appeal, Appellants challenge
the district court’s order denying the motion to dismiss.
4
App.103
ANALYSIS
“Reviewing a TCPA motion to dismiss requires a three-step analysis.” Youngkin
v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). As a threshold matter, the moving party must show
by a preponderance of the evidence that the TCPA properly applies to the legal action against it.
Tex. Civ. Prac. & Rem. Code § 27.005(b).
If the moving party meets that burden, the
nonmoving party must establish “by clear and specific evidence a prima facie case for each
essential element of the claim in question.” Id. § 27.005(c). If the nonmoving party satisfies that
requirement, the burden shift backs to the moving party to prove each essential element of any
valid defense by a preponderance of the evidence. Id. § 27.005(d).
“In determining whether a legal action should be dismissed under [the TCPA], the
court shall consider the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a). We review
de novo whether each party carried its assigned burden.
Long Canyon Phase II & III
Homeowners Ass’n v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.).
The parties do not dispute that the TCPA applies to this suit. Based on the
parties’ agreement, the sole issue before the district court was whether Lewis can maintain a
claim for IIED without having been individually identified by Appellants in their broadcasts. As
a result, that is also the sole issue before this Court, and we do not address other arguments
raised on appeal. See id. at 218 (noting that potential bases for reversal on appeal were limited
based on the TCPA movant’s withdrawal of a portion of its motion during the dismissal hearing).
Appellants assert that Lewis cannot maintain an action for IIED because she was not individually
named in any of the broadcasts of which she complains.
5
App.104
Texas has adopted “the tort of intentional infliction of emotional distress as set
out in in § 46 (1) of the Restatement (Second) of Torts.” Twyman v. Twyman, 855 S.W.2d 619,
621-22 (Tex. 1993). Section 46 (1) provides:
(1) One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily
harm.
Restatement (Second) of Torts § 46 (1) (1965). Based on the Restatement, the Texas Supreme
Court has held that to recover for IIED, “a plaintiff must prove that 1) the defendant acted
intentionally or recklessly, 2) the conduct was ‘extreme and outrageous,’ 3) the actions of the
defendant caused the plaintiff emotional distress, and 4) the resulting emotional distress was
severe.” Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). The
elements of IIED as laid out in these authorities do not expressly include a requirement that the
intentional or reckless extreme and outrageous conduct be inflicted upon a person who is
individually named. See Johnson v. Standard Fruit & Vegetable Co., 984 S.W.2d 633, 639-40
(Tex. App.—Houston [1st Dist.] 1997), rev’d on other grounds, 985 S.W.2d 62) (declining to
create a new element for IIED requiring conduct to be “directed at a particular individual”).
However, Appellants rely on defamation cases, including New York Times Co. v. Sullivan,
376 U.S. 254, 288 (1964), to assert that a plaintiff in any civil tort action must show that the
defamatory statements were “of and concerning” the plaintiff. See Dallas Morning News, Inc. v.
Tatum, 554 S.W.3d 614, 624 (Tex. 2018) (considering a defamation claim and noting that
statement need not refer to the plaintiff by name if people who are acquainted with the plaintiff
reasonably understand from reading the statement that it referred to the plaintiff); Levine v. Steve
6
App.105
Scharn Custom Homes, Inc., 448 S.W.3d 637, 654 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied) (considering group libel and stating, “if a statement refers to all members of a small
group, then individuals within that group can maintain a defamation claim”). Thus, Appellants
assert that for Lewis to prevail on her IIED claim, the statements alleged to constitute
Appellants’ extreme and outrageous conduct must be “of and concerning” Lewis. Given the
posture of this case, wherein the parties have agreed for the purposes of the TCPA motion that
Appellants intentionally or recklessly made false statements that members of Appellants’
audience believed to be true, we note that protections for speech that contains a verifiably false
assertion of fact may be less stringent than speech that conveys an opinion. See Holloway v.
American Media, Inc., 947 F. Supp. 2d 1252, 1263-64 (N.D. Ala. 2013) (analyzing Supreme
Court precedent and stating, “The cases discussed above instruct that while false speech often
must be tolerated in order to foster the free exchange of ideas so integral to our constitutional
values, there remain limits upon the right to publish false statements that injure an individual.
Those limits appear to be drawn with respect to whether the statements published purport to
convey facts (as distinct from opinions) . . . . At the same time, it is clear that the torts of
defamation and of intentional infliction are separate and distinct.”).
The uncontroverted statements that form the basis of Lewis’s complaint dispute
whether the events at Sandy Hook occurred or were part of an elaborate hoax: Jones stated that
the shooting at Sandy Hook was “as phony as a three-dollar bill.”
Some of Appellants’
statements refer to parents of other children killed at Sandy Hook. For example, Jones refers to
one father as “one of the reported fathers of the victims . . . doing classic acting training.” Jones
shows a video of another mother being interviewed and asserts that the interview is occurring on
a green screen rather than at the school. Another Infowars reporter says of another parent, “He’s
7
App.106
claiming that he held his son and saw the bullet hole in his head. That is his claim. Now,
according to a timeline of events and a coroner’s testimony, that is not possible.” Jones also
made statements concerning all of the parents of children who were killed at Sandy Hook,
including:
So, if children were lost at Sandy Hook, my heart goes out to each and every one
of those parents. And the people who say they’re parents that I see on the news.
The only problem is, I’ve watched a lot of soap operas. And I’ve seen actors
before. And I know when I’m watching a movie and when I’m watching
something real.
This statement, and some of the broadcasts as a whole, could be understood to accuse parents of
Sandy Hook victims of either being untruthful about the manner in which their children were
killed or being untruthful about whether their children were killed at all. Because the statements
at issue apply to parents of Sandy Hook victims, the class of potential plaintiffs is limited and
readily identifiable from the multitude of sources reporting the identities of the victims.
Assuming that IIED claims involving statements require a showing that those statements are “of
and concerning” the plaintiff we conclude that Lewis has presented the minimum quantum of
clear and specific evidence necessary to support a rational inference that she has done so. See
Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App—Austin 2015, no pet.) (“A prima facie
standard generally ‘requires only the minimum quantum of evidence necessary to support a
rational inference that the allegation of fact is true.’”).
8
App.107
CONCLUSION
Having concluded that Lewis established by clear and specific evidence a prima
facie case for the sole disputed element of her IIED claim, we affirm the district court’s denial of
Appellants’ motion to dismiss.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Kelly
Affirmed
Filed: October 11, 2019
9
App.108
APPENDIX I
Order Of The Travis County District Court, Scarlett Lewis v.
Alex E. Jones, et al., No. D-1-GN-18-006623 (May 31, 2019)
App.109
1.
Order Denying Motion to Dismiss dated May 31, 2019
CR:4919
Filed in The C.i:;trd Co;;:-::
of Tr:!vis C-:>unty, Texas
MAY ·31 2019
CAUSE NO. D- I-GN -18-006623
}/(__
/W
/J.'3!/lr,t
At
Velva L. Price, District Clerk
SCARLEH LEWIS
§
IN THE DISTRICT COURT OF
§
l'lainlijf
§
§
vs.
lJs
ALEX E. JONES, INFO WARS, LLC, AND
FREE SPEECH SYSTEMS, LLC
§
§
§
§
Defendants
TRAVIS COUNTY, TEXAS
98'" JUDICIAL DISTRICT
ORDER DENYING MOTION TO DISM ISS
On May 2. 2019. the Court heard Defendants · Motion to Dismiss under the Texas Citizens '
Participation Act. After considering the arguments of counsel and the record, the Court ORDERS
that defendants' motion is in all respects DENIED.
Signed May
g ,2019.
Appendix 1
4919
App.110
APPENDIX J
Affidavit Of Alex Jones A
Scarlett Jones v. Alex E. Jones, et al. , No. D-1-GN-18-006623
(May 31, 2019)
App.111
5.
Affidavit of Alex E. Jones from Petitioners’
Motion to Dismiss under the Texas Citizens Participation Act
CR:125-129
NO. D-l-GN-18-006623
SCARLETT LEWIS,
§
Plain1ijf,
§
§
§
§
V.
[N THE DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
§
§
ALEX E. JONES, INFOWARS. LLC,
and FREE SPEECH SYSTEMS, LLC,
§
§
§
Defendan!s
98th JUDICIAL DISTRICT
AFFIDAVIT OF ALEX E. JONES
STATE OF TEXAS
§
COUNTY OF TRAVIS
§
§
BEFORE ME, the undersigned notary public, on this day personally appeared
Alex E. Jones, known to me to be the person whose name is subscribed below, and who
on his oath. deposed and stated as follows:
I.
My name is Alex E. Jones. I am over the age of 21 years, have never been
convicted of a felony or crime involving moral turpitude, am of sound mind, and am fully
competent to make this affidavit. l have personal knowledge of the facts herein stated
and they are true and correct.
2.
ror more than twenty years and long before the tragedy at Sandy Hook, I
have been an ardent and vocal supporter of the first and Second Amendments to the
United States Constitution. I started with a local radio program during which I voiced my
opinions and comments about various news stories. None of my opinions were more
forcefully given than in defense of the First and Second Amendments. These forceful
EXHIBIT
A
App.112
Appendix 5
125
opinions and comments provoked strong disagreement from those who did not share my
views and thus created controversy.
3.
My audience grew in large part because many people agreed with my
opinions about the those rights and my opinion that MSM (what others and I call
mainstream corporate media) and liberal elected and appointed government officials had
historically worked to limit gun owners' rights and to stifle free speech including dissent
from and criticisms about those efforts. I often opined that those officials and media
representatives used deception and could not be trusted to disclose or report accurate
facts. I also opined that those deceptive effo1ts were intended to improperly sway public
opinion toward limiting those constitutional rights. As a result of my distrust of "official
accounts", I often urge my audience to question official repo1ts and do their own
investigations and analyses.
4.
My opinions resonated with millions of Americans. My YouTube channel
grew to over two million subscribers and had a total of 1.3 billion views.
5.
As my audience continued to grow, my voice became more powerful.
designed my speech to provoke my audiences to action in defense of their constitutional
rights. I intended what I said to enlist my audiences and the public in general to become
active in their cities, states and on the national level in defense of the First and Second
Amendment and to oppose the many new gun laws that were and are being considered on
the federal level and in states and cities all over the country.
6.
During my broadcasts, I frequenlly associate with and broadcast opinions
and comments of others who hold similar viewpoints. I believe that these associations are
AFFIDAVIT OF ALEX E. JONES - Page 2
126
App.113
helpful in my effo1ts to enlist support for my political positions and in defense of those
who attacked me and others in order to discredit these impo1tant constitutional causes.
Just as I have had guests, shared opinions, reported news and urged my audiences to
investigate official reports for themselves and to participate in the opposition of more
restrictive gun laws in my other broadcasts over the years, so I also did in the broadcasts
alleged by plaintiff to have caused her harm.
7.
I regularly criticize the mainstream media (MSM) for what I view as biased
reporting intended to sway public opin ion in a liberal direction and did so in the
broadcasts referenced in plaintiff' s petition.
8.
In each of the nine broadcasts claimed by plaintiff to have caused her
distress, I continued my practice of repo1ting the news, commenting on the news,
providing my audience with my opinions and urging action from them in defense of our
constit11tional rights. And just as in all of my broadcasts, I intend my speech to motivate
others to become politically active in defense of their constitutional rights that I believe
are and have been under attack from many inside the government and MSM.
9.
In none of the broadcasts that serve as the bases for plaintiffs cause of
action did I mention Scarlett Lewis. To the best of my reco.llection, until this lawsuit was
filed, I do not think I have ever seen her name or spoken of her even off the air. I do not
know her, have never met her and have never spoken to her or been in her presence. I
have never had any relationship with her and have never had authority over her or the
ability to affect her interests, financial or otherwise. I am not familiar with her in any
way. At no time, including in any of these broadcasts did I intend to cause Ms. Lewis or
AFFIDAVIT OF ALEX E. JONES - Page 3
127
App.114
anyone else severe emotional distress. Neither did I anticipate that the pnmary
consequence of any of my statements would be to cause plaintiff or anyone else severe
emotional distress.. Instead, in each of the broadcasts about which she complains, I
reported the news and expressed my opinions about the government and MSM intending
to inform my audience and motivate their participation in the defense of their
constitutional rights including the First and Second Amendments to the US Constitution.
10.
The entire context of my remarks was within my expression of my opinions
about the lack of honesty and integrity from MSM and our govemment and their use of
deception in trying to dishonestly sway public opinion on important constitutional issues.
This is consistent with my firm and long shared beliefs in defending the First and Second
Amendments and my criticisms of MSM' s and the government's exploitation of tragic
and notorious events, such as the Sandy Hook shootings, to restrict free speech and gun
ownership in this country. I have long believed and opined that MSM and our
government will report " fake news" in order to mislead people and manipulate public
opinions.
11.
In addition, NBC 's broadcast with Ms. Kelly' s voice overs and editing was
intended to and did unfairly and inaccurately portray and criticize my own beliefs and
opinions and was also intended to criticize many others who similarly question our
government and MSM reports I also believe that NBC also intended to create and profit
by controversy sunounding me and my opinions. They intentionally fanned this
controversy by slanting their reporting of my interview and by including interviews with
others to criticize and rebut what they intended to convey to their viewers as my opinions.
AFFIDAVIT OF ALEX E. JONES - Page 4
128
App.115
One of their goals appeared to be to cast my views and reporting as " fake news" just as I
have criticized NBC and other MSM companies for reporting fake news. What is and is
not "fake news" has been an extremely contentious topic and controversy in and among
the media and general population for the past several years.
Further Affianl Sayeth Not.
~
Alex E. Jones
SWORN TO and SUBSCRIBED before me by Alex E. Jones on January _f__ ,
2019.
-~~::•,,,
PATRICK RILEY
=·1~1•~······~1
'. Notary Pul)IIC. Stele of Texaa
~~
•~
,,,,,,,'·•· ,,l'
Comm. Expires 09•24-2022
Notary 10 131734177
Notary Public in and for
the State of Texas
My Commission Expires:
9,.zr-1on
AFFIDAYIT 01' ALEX E. JONES- Page 5
129
App.116
APPENDIX K
Order Denying Petition For Review – The Texas Supreme
Court, Alex E. Jones, et al., v. Leonard Pozner, et al., No. 191102 (Jan. 22, 2021)
App.117
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
CHANCE MCMILLAN
THOMAS N. THURLOW & ASSOCIATES, P.C.
440 LOUISIANA, SUITE 1200
HOUSTON, TX 77002
* DELIVERED VIA E-MAIL *
App.118
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
MR. MARK BANKSTON
KASTER LYNCH FARRAR & BALL, L.L.P.
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.119
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
MR. THOMAS W. JEFFERIES
THE LAW FIRM OF T. WADE JEFFERIES
401 CONGRESS AVE., SUITE 1540
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.120
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
MR. JEFFREY D. KYLE
CLERK, THIRD COURT OF APPEALS
209 WEST 14TH STREET, ROOM 101
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.121
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
DISTRICT CLERK TRAVIS COUNTY
TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
* DELIVERED VIA E-MAIL *
App.122
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
MR. WILLIAM OGDEN
KASTER LYNCH FARRAR & BALL LLP
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.123
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 1/22/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the petition
for review in the above-referenced case. Justice Devine and
Justice Blacklock note their dissent to the Court’s denial
of the petition for review.
MR. DAVID J. SACKS
SACKS LAW FIRM
2323 S. SHEPHERD DRIVE, SUITE 825
HOUSTON, TX 77019
* DELIVERED VIA E-MAIL *
App.124
APPENDIX L
Order Denying Rehearing Of Petition For Review – The Texas
Supreme Court, Alex E. Jones, et al. v. Leonard Pozner, et al.,
No. 19-1102 (April 16, 2021)
App.125
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
CHANCE MCMILLAN
THOMAS N. THURLOW & ASSOCIATES, P.C.
440 LOUISIANA, SUITE 1200
HOUSTON, TX 77002
* DELIVERED VIA E-MAIL *
App.126
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. MARK BANKSTON
KASTER LYNCH FARRAR & BALL, L.L.P.
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.127
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. THOMAS W. JEFFERIES
THE LAW FIRM OF T. WADE JEFFERIES
401 CONGRESS AVE., SUITE 1540
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.128
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. JEFFREY D. KYLE
CLERK, THIRD COURT OF APPEALS
209 WEST 14TH STREET, ROOM 101
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.129
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
DISTRICT CLERK TRAVIS COUNTY
TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
* DELIVERED VIA E-MAIL *
App.130
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. BRADLEY J. REEVES
REEVES LAW, PLLC
702 RIO GRANDE ST, STE 203
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
App.131
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. WILLIAM OGDEN
KASTER LYNCH FARRAR & BALL LLP
1117 HERKIMER ST
HOUSTON, TX 77008-6745
* DELIVERED VIA E-MAIL *
App.132
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. MARC J. RANDAZZA
RANDAZZA LEGAL GROUP, PLLC
2764 LAKE SAHARA DRIVE
SUITE 109
LAS VEGAS, TX 89117
* DELIVERED VIA E-MAIL *
App.133
FILE COPY
RE: Case No. 19-1102
COA #: 03-18-00603-CV
STYLE: JONES v. POZNER
DATE: 4/16/2021
TC#: D-1-GN-18-001842
Today the Supreme Court of Texas denied the motion for
rehearing of the above-referenced petition for review.
MR. DAVID J. SACKS
SACKS LAW FIRM
2323 S. SHEPHERD DRIVE, SUITE 825
HOUSTON, TX 77019
* DELIVERED VIA E-MAIL *
App.134
APPENDIX M
Opinion Of The Texas Court Of Appeals, Third District, Alex
E. Jones, et al. v. Leonard Pozner, et al., No. 3-18-00603-CV
(November 5, 2019)
App.135
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00603-CV
Alex E. Jones; Infowars, LLC; and Free Speech Systems, LLC, Appellants
v.
Leonard Pozner and Veronique De La Rosa, Appellees
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-001842, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Alex E. Jones; Infowars, LLC; and Free Speech Systems, LLC, appeal
from the district court’s order denying their motion to dismiss under the Texas Citizens
Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.003. 1 Because we determine
that Appellees Leonard Pozner and Veronique De La Rosa have met their burden of establishing
1
In this opinion, citations to the TCPA are to the version in effect before the September
2019 amendments became effective. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2,
2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code §§ 27.001–
.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5, 2013 Tex. Gen.
Laws 2499, 2499–500 (the version at issue in this opinion); see also Act of May 20, 2019, 86th
Leg., R.S., ch. 378, H.B. 2730, §§ 1–9, 2019 Tex. Gen. Laws __, __ (the 2019 amendments); Act
of May 20, 2019, 86th Leg., R.S., ch. 378, H.B. 2730, §§ 11–12, 2019 Tex. Gen. Laws __, __
(providing that a suit filed before the amendments become effective “is governed by the law in
effect immediately before that date”).
App.136
a prima facie case for defamation and that Appellants have not established a valid defense, we
affirm the district court’s denial of Appellants’ motion to dismiss.
BACKGROUND
Infowars, LLC, operates as the website InfoWars.com, which presents itself as a
news media outlet. Free Speech Systems, LLC, owns and operates Infowars, LLC. Jones is the
sole member of both entities. Jones publishes the InfoWars website and is the host of its
associated shows. Pozner and De La Rosa (the parents) are the parents of Noah Pozner, a child
who was killed in the Sandy Hook Elementary School shooting in December 2012. They sued
Appellants in April 2018 for defamation and defamation per se based on statements made in
three broadcasts that disputed whether the shooting that took their son’s life actually occurred
and whether, if the children were killed, they were shot as part of a staged event. The broadcasts
on which the parents rely aired on April 22, April 28, and June 13, 2017. In addition to asserting
a defamation claim, the parents’ original petition alleged that Appellants engaged in a
conspiracy, that InfoWars and Jones were liable for their employees’ actions under the theory of
respondeat superior, and that the parents suffered general and special damages. 2 In June 2018,
Appellants filed a motion to dismiss under the TCPA (First Motion to Dismiss), and a hearing on
that motion was set for August 1.
A flurry of activity filled the week before the hearing.
The parents filed a
response to the motion to dismiss on July 25. Appellants then filed a “supplement” to their
2
Because civil conspiracy is “derivative,” courts do not analyze the trial court’s refusal
to dismiss plaintiffs’ causes of action for conspiracy separately from its refusal to dismiss their
other causes of action. Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 797 (Tex. App.—
Austin 2017, pet. granted). Similarly, the doctrine of respondeat superior is not a separate “legal
action” and is not addressed separately from the underlying cause of action for defamation in a
TCPA motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 27.001(6).
2
App.137
motion on July 27 (the Friday before the hearing date) that included additional argument,
exhibits, and supplemental affidavits, and on July 30, they filed another supplemental affidavit in
support of their motion. On July 31, Appellants filed a second “supplement” along with another
supplemental affidavit and also filed a seventy-page document objecting to the evidence the
parents had filed with their response to the motion to dismiss. 3 That same day, the parents
amended their petition to include a claim for intentional infliction of emotional distress.
They also filed objections to the affidavit and supplemental affidavits (and the attached exhibits)
filed by David Jones (Appellant Jones’s son), and they objected that both supplements to the
motion to dismiss were untimely.
After the parties presented their arguments at the hearing on the motion, the
district court recessed the hearing to allow the parties to agree on what should be included in the
record. On August 2, the day after the hearing, the court held a conference with counsel for both
parties to determine how to conclude the written record and close the TCPA hearing. On the
same day, the parents submitted supplemental declarations further detailing their alleged
damages, and Appellants filed a second motion to dismiss under the TCPA (Second Motion to
Dismiss) to address the newly added claim for intentional infliction of emotional distress.
3
In their brief, Appellants have included, in primarily bullet-point form, several pages of
objections to various portions of evidence relied on by the parents. Most of these objections are
single words or phrases that contain no analysis or citations to legal authority. Appellants do not
elaborate on these objections in their reply brief. We review a trial court’s evidentiary rulings
for an abuse of discretion. Southwest Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727
(Tex. 2016). Assuming that Appellants’ objections were adequately briefed, we overrule the
objections as we understand them as to the affidavits and supplemental affidavits of the parents.
We also determine that the district court did not abuse its discretion in allowing the parents to
file supplemental affidavits on August 2, particularly in light of Appellants’ two substantial
supplements to their motion to dismiss, one filed five days and another filed one day before the
hearing and only six and two days before the parents’ affidavits were filed. We do not reach
Appellants’ other objections and base our conclusions on the pleadings, portions of affidavits,
and exhibits that were not subject to the objections listed in Appellants’ brief.
3
App.138
The second motion to dismiss was set for a hearing on September 19. On August 29, the district
court signed an order denying the First Motion to Dismiss. On September 12, Appellants filed a
notice of appeal from the August 29 order, which is the basis for this appeal.
DISCUSSION
“The [TCPA] protects citizens who petition or speak on matters of public concern
from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579,
584 (Tex. 2015) (orig. proceeding). The protection comes in the form of a motion to dismiss a
suit that would stifle the defendants’ exercise of those rights. Id. “Reviewing a TCPA motion to
dismiss requires a three-step analysis.” Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).
First, the party moving for dismissal must show by a preponderance of the evidence that the
TCPA applies to the legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b). If the
movant meets that burden, the nonmovant must establish by clear and specific evidence a prima
facie case for each essential element of its claim. Id. § 27.005(c). “The words ‘clear’ and
‘specific’ in the context of this statute have been interpreted respectively to mean, for the former,
‘unambiguous,’ ‘sure,’ or ‘free from doubt’ and, for the latter, ‘explicit’ or ‘relating to a
particular named thing.’” Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220, 230 (Tex. App.—
Austin 2018, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590). “In determining whether a legal
action should be dismissed under [the TCPA], the court shall consider the pleadings and
supporting and opposing affidavits stating the facts on which the liability or defense is based.”
Tex. Civ. Prac. & Rem. Code § 27.006(a) (“Evidence”). Collectively, these elements require
that the “plaintiff must provide enough detail to show the factual basis for its claim.” Bedford v.
Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam).
4
App.139
If the nonmovant satisfies that
requirement, the burden shifts back to the movant to prove each essential element of any valid
defenses by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code § 27.005(d).
The parties do not dispute that the TCPA applies to the defamation action against
Appellants. Therefore, only the second and third steps of the TCPA analysis are at issue here—
whether the parents established by clear and specific evidence a prima facie case for each
essential element of their defamation claim and, if so, whether Appellants proved each essential
element of their statute of limitations defense by a preponderance of the evidence. We review de
novo whether the parties met their respective burdens of proof under section 27.005. See Smith
Robertson, L.L.P. v. Hamlin, No. 03-18-00754-CV, 2019 Tex. App. LEXIS 5787 at *5
(Tex. App.—Austin July 11, 2019, pet. filed) (mem. op.); Batra v. Covenant Health Sys.,
562 S.W.3d 696, 708 (Tex. App.—Amarillo 2018, pet. denied).
Prima Facie Case for Defamation
In the second step of the analysis, the parents must establish by clear and specific
evidence a prima facie case for each essential element of their defamation claim. See Tex. Civ.
Prac. & Rem. Code § 27.005(c). “In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was said, the defamatory nature of
the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion
to dismiss.” In re Lipsky, 460 S.W.3d at 591. The TCPA “does not impose an elevated
evidentiary standard or categorically reject circumstantial evidence.” Id. Defamation occurs
when “(1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the
requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a
private individual); and (4) damages (unless the statement constitutes defamation per se).”
5
App.140
D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017). “The status of the
person allegedly defamed determines the requisite degree of fault.” In re Lipsky, 460 S.W.3d at
593. A private individual need prove only negligence, whereas a public figure or official must
prove actual malice.
Id.
(citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571
(Tex. 1998)). Finally, the plaintiffs must plead and prove damages, unless the defamatory
statements are defamatory per se. Id. (citing Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys.
Landfill, Inc., 434 S.W.3d 142, 162 n.7 (Tex. 2014)). Defamation per se refers to statements that
are so obviously harmful that general damages may be presumed. Id.
In determining whether the parents met their burden to establish a prima facie
case for defamation, we are mindful that courts analyze the truth or falsity of a broadcast under
the substantial truth doctrine: “if a broadcast taken as a whole is more damaging to the plaintiff’s
reputation than a truthful broadcast would have been, the broadcast is not substantially true and
is actionable.”
Neely v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013) (citing Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (“the meaning of a publication, and thus
whether it is false and defamatory, depends on a reasonable person’s perception of the entirety of
a publication and not merely on individual statements”)). “Assessing a broadcast’s gist is
crucial.” Id. A broadcast with statements that err in the details but that correctly convey the gist
of a story is substantially true. Id. at 63-64. “On the other hand, a broadcast ‘can convey a false
and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual
statements considered in isolation were literally true or non-defamatory.’” Id. (quoting Turner,
38 S.W.3d at 114). Courts determine a broadcast’s gist or meaning by examining how a person
of ordinary intelligence would view it. Id.
6
App.141
Both parties acknowledge that Noah Pozner was killed in the mass shooting at
Sandy Hook Elementary School in Newtown, Connecticut. The parents assert that Appellants’
broadcasts present false assertions of fact regarding their son’s death and that those assertions are
defamatory, that they were made with the requisite degree of fault, and that they have harmed the
parents. The three 2017 broadcasts at issue in this case are from different platforms. The April
22 broadcast is an InfoWars video in which Jones speaks for most of the duration of the hourlong broadcast. The April 28 broadcast is a press conference at which Jones spoke. The June 13
broadcast is a video Jones posted to the InfoWars Facebook page. Because it is dispositive of
this interlocutory appeal, we address only the April 22 broadcast. 4
False and Defamatory Broadcast
“Texas recognizes the common-law rule that defamation is either per se or per
quod.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). “Defamation
per se occurs when a statement is so obviously detrimental to one’s good name that a jury may
presume general damages, such as for loss of reputation or for mental anguish.” Id. (citing
Hancock v. Variyam, 400 S.W.3d 59, 63-64 (Tex. 2013)). Defamation per quod is simply
4
The April 28 and June 13 broadcasts are not in the record, although partial transcripts
are contained in the record. The parties agree that these broadcasts republish some of the
assertions regarding Sandy Hook made in the April 22 broadcast. Specifically, in the April 28
broadcast, Jones states that the government has staged “so much stuff,” says “[m]aybe the whole
thing is fake,” and asserts that “They were using blue screens out there.” In the June 13
broadcast, Jones repeats the allegations that the school had been closed before the shooting, that
port-a-potties were set up in an hour following the shooting, and that Anderson Cooper’s
interview with De La Rosa occurred on a green screen. These factual assertions overlap with the
assertions presented in the April 22 broadcast and are alleged to form the basis of the same claim
for defamation. Cf. Hayes v. Cavin, No. 03-17-00501-CV, 2018 Tex. App. LEXIS 8343, 2018
WL 4939010, at *3 (Tex. App.—Austin Oct. 12, 2018, pet. denied) (mem. op.) (trial court could
have concluded that allegation of additional instance of defamation “did not allege new and
distinct injuries and instead clarified their claim of how [defendant] defamed them to other
people”).
7
App.142
defamation that is not actionable per se. Id. To determine whether the broadcast was false and
capable of a defamatory meaning, we begin by analyzing its “gist.” D Magazine Partners,
529 S.W.3d at 434 (“In making the initial determination of whether a publication is capable of a
defamatory meaning, we examine its ‘gist.’”) (citing Neely, 418 S.W.3d at 63); In re Lipsky,
460 S.W.3d at 594 (noting that the meaning of a publication depends on a reasonable person’s
perception of the entire “publication and not merely on individual statements” and concluding
“the gist” of the statements sufficed to defeat a TCPA motion to dismiss).
The April 22 broadcast contained direct false assertions of facts implying that the
parents colluded in what Appellants cast as a hoax relating to the murder of their son, as well as a
whirlwind of other statements that, according to Jones, “all tie[] together” and relate to the
shooting at Sandy Hook. Jones begins the broadcast by describing what he believes to be
evidence of the government’s and media’s willingness to deceive people. Early in the broadcast,
Jones explains that Julian Assange (the founder of WikiLeaks) and others are not “leakers”
because “you’re not a leaker when you’re exposing criminal activity in an out of control, rogue
government.” He also describes and shows a clip from a segment where he says Madeline
Albright is asked whether half a million children dying in Iraq was a reasonable price to pay for
the 1991 war in Iraq, and she responds, “I think this is a very hard choice, but the price, we think
the price is worth it.” Jones explains that the government involved the nation in a war under
false pretenses and also lied in 2003 “about WMDs [weapons of mass destruction]. And we’ve
been lied to over and over again.” Jones states that he is trying “to get to the heart of the matter
of what’s going on, even though it’s painful to try to cover some of these topics.” He critiques
the media for taking his comments out of context and states: “when we’ve gotten pieces of news
that we’ve discovered have been taken out of context that we were given, we come out and do a
8
App.143
retraction . . . . because we’re not fake.” Later in the broadcast, he links the government’s
alleged dishonesty and willingness to sacrifice children to his theory of what happened at Sandy
Hook:
Most fake mass shootings, they have shooters and then killer patsy. We know
that’s happened before. They’ve been caught before. False flag’s a household
name.
I tend to believe that’s what happened. But real mass shootings happen. I’m not
saying real kids didn’t die. We’ve entertained the idea, because the majority of
people online don’t believe the official story, because they’ve been lied to so
much and seen our government launch wars that killed millions on lies, so they
killed 20-something kids?
But you watch the blue screens, and you watch the fake stuff. . . .
The point is, is that everybody knows they lied about WMDs, everybody knows
that, that stuff went on, everybody, [it’s] in our normal reel about Sandy Hook
being fake. You, you know [why] people question it, okay?
At several points, he alludes to new information he has uncovered relating to the
shooting at Sandy Hook or Newtown (where the school is located), for example:
Now, what’s the new Newtown info, and how does this tie into the tragic event
that happened on Obama’s watch? The media, since day one, has said that I said
the attacks never happened, when you can go and find myself and Rob [Dew] and
everybody else that works around here, in more than seven debates we’ve done,
with both sides, people that think the official story was as exactly as it happened,
and former top school security training experts, law enforcement folks like
Wolfgang Halbing saying he believes nothing happened.
Quite frankly, I’ve said I don’t know the truth, but if you’ve got a government
caught lying about WMDs that causes wars that killed millions of people, and
hundreds of thousands of children from starvation, that Bill Clinton intensified,
and people that launch fraudulent wars against Syria, all based on lies, and they
9
App.144
do this over and over again, I don’t want them to sit there and shake their finger at
me, like I’m a demon that doesn’t care about children being shot in mass
shootings.
Jones includes Sandy Hook among a host of items about which he believes the government and
media have been deceptive. In doing so, he also left the impression that Jones believes parents
like Pozner and De La Rosa were not truthful in stating that their children were killed, or that if
they were, then the children may have been killed as part of what Jones calls a hoax or a “false
flag.”
Jones presents all of this information as “trustworthy” news. Throughout the
broadcast, Jones repeatedly touts InfoWars as a source of “documented” news based on “indepth research” that “you can verify yourself” and says “We’re so real, they say we’re fake.” He
then says, “So, here’s the new Sandy Hook information. . . . Sandy Hook’s so inconclusive. . . .
I’ve said, ‘I believe kids died,’ but then I’ve said I’ve seen Devil’s advocate, [we’ve] done
debates that no kids died, and that it’s all made up, because the media has been caught making
things up.” As the broadcast continues, it includes increasingly specific statements that refer to
the role of the parents:
So here are these holier than thou people, when we question CNN, who,
supposedly, is at the site of Sandy Hook, and they’ve got, in one shot, leaves
blowing and flowers that are out, and you see the leaves blowing, and they gothey glitch. They’re recycling a, a green screen behind them.
Uh, you’ve got, who’s the female lawyer used to be on CNN? Uh, [fake] southern
accent or whatever? She’s on there with cars driving in a cul-de-sac in circles and
you see, it’s the same cars going in circles.
And then we’ve got Anderson Cooper famously, not just with the flowers blowing
in the fake, but when he turns, his nose disappears repeatedly, because the green
10
App.145
screen isn’t set right. And they don’t like to do live feeds because somebody
might run up.
CNN did that in the Gulf War and admitted it. They just got caught two weeks
ago doing it in, supposedly, Syria, and then the green screen cuts out and they got,
you know, phones ringing. And all we’re saying is, if these are known liars that
lied about WMDS and lied to get us into all of these wars and backed the Arab
Spring, and Libya, and Syria, and Egypt, everywhere else to overthrow
governments and put in radical Islamicists, if they do that and have blood on their
hands, and lied about the Iraq war, and for the sanctions that killed a half million
kids, and let the Islamicists attack Serbia, and lied about Serbia launching the
attack, when it all came out later that Serbia didn’t do it, how could you believe
any of it if you have a memory and you’re not Dory from Finding Dory, you
know, the Disney movie?
In the clip that Jones asserts was staged on a green screen (which is referenced more than once in
the broadcast), Anderson Cooper is seen interviewing De La Rosa on screen about the loss of her
son. After further discussion, Jones says “MSN and the corporate media and that whole system
are the ones feeding off the dead children of all these mass shootings and these tragedies, some
of which, the government and other groups have been caught being involved in,” then he shows a
“false flag video montage” showing a series of what he asserts are hoaxes perpetrated by the
government or media. Following that montage, he returns to the screen and mentions “a longer
piece we did with . . . a fake set of cars driving in circles at Sandy Hook.” Toward the very end
of the broadcast, Jones discusses Sandy Hook with a fellow member of the InfoWars staff, Rob
Dew, who mentions that on the day of the shooting, authorities released the wrong name for the
shooter, instead identifying his brother. Jones responds, “and then the school was closed ’til that
year, and then the videos, it’s all rotting and falling apart, and nobody’s even in it, and the kids
are going in circles in and out of buildings with their hands up, and then they never called rescue
choppers, ex- I mean exactly.” Dew and Jones go back and forth identifying a series of facts that
they believe demonstrate why the incident at Sandy Hook was not real, ranging from delivery of
11
App.146
port-a-potties to the school within an hour for the subsequent media event to police officers
smiling while eating lunch as, according to Dew, “they’re supposedly bringing out 20 dead
kids.” Dew states, “you know, we’ve never seen, there’s never been any even blurred photos of
any bodies or anything. We’ve seen every other incident where there’s dead bodies,” and Jones
replies, “They sure showed us the nerve gas kids in Syria, didn’t they?”
By asserting, as a matter of fact, that De La Rosa’s interview was staged on a
green screen and that the school had in fact been closed for years leading up to the shooting,
Jones necessarily implies that the parents were untruthful in representing that De La Rosa spoke
to Anderson Cooper at the site of her son’s death and in representing that they were parents of
children who attended Sandy Hook Elementary before and during the shooting. Overall, the gist
of the broadcast is that the shooting at Sandy Hook was staged and, by implication, that the
parents were complicit. Jones references his “normal reel about Sandy Hook being fake” and
concludes with an exchange discussing events that Jones believes show the inauthenticity of the
Sandy Hook shooting. Jones references CNN “[getting] caught” using a green screen and claims
that the interview with De La Rosa, “supposedly” at “the site of Sandy Hook,” also occurred on a
green screen based on a “glitch” that occurred when Anderson Cooper’s “nose disappears
repeatedly.” The broadcast juxtaposes discussion of the Sandy Hook shooting with incidents
that, according to Jones, are known to have been staged, leaving the impression that the events of
Sandy Hook were among the hoaxes perpetrated by the government, the media, or both. See
Neely, 418 S.W.3d at 63 (explaining that juxtaposition of facts can leave a false and defamatory
impression).
Immediately following the exchange with Dew, Jones once again affirms that
“Anybody can see what we’re covering’s real here all day.” In other words, the broadcast’s gist
12
App.147
is that InfoWars is a serious news organization that has gathered information to show that the
shooting that claimed Noah Pozner’s life was faked or staged and that Noah’s parents
participated in the hoax. De La Rosa states in her affidavit that her interview with Anderson
Cooper was not conducted on a green screen. Another uncontroverted affidavit addresses several
of the factual assertions discussed by Jones and Dew. That affidavit contains photographs
showing Noah and his siblings as students at Sandy Hook Elementary and analyzes objects in the
photos with them (such as a book published on a particular date) to determine that the students
were at the open and functioning Sandy Hook Elementary before the shooting occurred.
The affidavit also notes that port-a-potties were delivered four hours after the shooting, contrary
to Jones’s implicit assertion that they were on standby before the shooting and on scene within
an hour.
Thus, the parents presented evidence that Appellants’ broadcast contains false
assertions of fact regarding the events at Sandy Hook and the parents’ alleged involvement.
Because of the broadcast’s overall impression that the shooting at Sandy Hook was faked, a
reasonable viewer could conclude that the broadcast mischaracterizes the parents’ role,
suggesting that they participated in an abhorrent hoax.
See Means v. ABCABCO, Inc.,
315 S.W.3d 209, 214 (Tex. App.—Austin 2010, no pet.) (“A statement is defamatory if it tends
to injure the person’s reputation, exposing the person to public hatred, contempt, ridicule, or
financial injury, or if it tends to impeach that person’s honesty, integrity, or virtue.”). Moreover,
the parents argue that these defamatory statements charge them with commission of a crime
because if they were participating in a hoax, they necessarily provided false statements to law
enforcement or colluded with law enforcement to create a false public record. See Tex. Penal
Code § 37.08 (prohibiting making false entries in government records). The parents therefore
assert that Appellants’ defamatory statements amounted to defamation per se.
13
App.148
See Texas
Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.—
Austin 2007, pet. denied) (stating that a statement that charges a person with commission of a
crime will typically be classified as defamation per se); Express Pub. Co. v. Isensee, 286 S.W.
926 (Tex. App.—Austin 1926, no writ) (“It is well settled that a publication which falsely
charges one with crime, either in express language or by reasonable implication, is libelous per
se.”). We conclude that the parents have produced the minimum quantum of clear and specific
evidence necessary to support a rational inference that the statements were false and defamatory
per se. Thus, they have established a prima facie case for these elements of their defamation per
se claim sufficient to survive TCPA dismissal. See Serafine v. Blunt, 466 S.W.3d 352, 357
(Tex. App.—Austin 2015, no pet.) (“A prima facie standard generally ‘requires only the
minimum quantum of evidence necessary to support a rational inference that the allegation of
fact is true.’”) (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)
(orig. proceeding)).
Requisite Degree of Fault
Whether the parents must prove that the broadcast’s statements were made with
negligence or actual malice depends on whether the parents are private individuals or, as
Appellants allege, limited purpose public figures. In support of their assertion that the parents
are limited purpose public figures, Appellants argue that De La Rosa’s speaking publicly
regarding gun control and Pozner’s creation of a charity that assists victims of mass shootings in
removing false content from the internet has given them “high-profile roles in these
controversies,” such that they “voluntarily engaged in activities that necessarily involved the risk
of public criticism.” Appellants specifically assert that the parents are public figures for the
purposes of the debate on gun control and whether Jones’s statements “should be limited or
14
App.149
banned from public platforms.” Shortly after her son’s death, De La Rosa was interviewed by
CNN’s Anderson Cooper, People Magazine, and the Jewish Forward, and she is mentioned and
quoted in several other articles regarding the shooting. In addition to discussing emotional
details surrounding her son’s death, some of the articles delineate De La Rosa’s reasons for
favoring gun control. In January 2013, De La Rosa accepted an invitation that was extended to
Sandy Hook parents to testify before a Connecticut legislative panel on gun control, and the
following month she spoke at a rally at the Connecticut Capitol. Appellants assert that De La
Rosa’s “online profile” evidences that she is no longer a private individual. That “profile,”
however, is part of a Jewish Forward online article acknowledging the accomplishments of
various Jewish people. It is not clear that De La Rosa had any input regarding the article, which
concludes:
Before Newtown, [De La Rosa] was a private citizen leading a
quiet life as an oncology nurse and mother. On December 14,
2012, she was involuntarily thrust into the limelight. But rather
than shy away from the media onslaught, [De La Rosa] made the
Herculean effort, as Rabbi Praver said, of communicating her grief
to the public. In so doing, she kept Newtown and gun control on
the national agenda.
Appellants assert that Pozner is a limited purpose public figure because he
founded HONR, a charity that provides resources, such as cease and desist letters, to combat
online harassment of victims of shootings by “hoaxers” or “truthers”—those who believe that
tragedies such as the shooting at Sandy Hook were staged. The record shows that Pozner
initially ignored online harassment directed at his and other families whose children were killed
at Sandy Hook, but he founded HONR because his family continued to suffer online harassment
between 2013 and 2016. After his family relocated to a different state, they were again harassed
15
App.150
online and also stalked and threatened by a woman who was convinced that the Pozner family,
including Noah’s sisters, who were in adjacent rooms at Sandy Hook Elementary when Noah
was killed, were actors. Pozner remains concerned that Noah’s siblings will continue to suffer
harassment if he is not able to protect them from “hoaxers.” In an article submitted as evidence
by the Appellants, Pozner states, in reference to his work with HONR, “This is my battle.
I didn’t pick it. It picked me.”
Public figure status is a question of law for the court. McLemore, 978 S.W.2d at
571. We use a three-part test to assess whether an individual is a limited purpose public figure:
(1) the controversy at issue must be public both in the sense that people are
discussing it and people other than the immediate participants in the controversy
are likely to feel the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential role in the controversy;
and
(3) the alleged defamation must be germane to the plaintiff’s participation in the
controversy.
Id. The alleged controversy at issue in Appellants’ broadcast is whether the parents and others
somehow participated in staging the shooting at Sandy Hook. Assuming that De La Rosa
speaking to news sources and to Connecticut legislators in 2013 sufficed to make her a public
figure for the limited purpose of the debate on gun control and that she remained a public figure
in 2017, she nonetheless remained a private individual for purposes of the debate about whether
the Sandy Hook shooting was staged. Nor is Pozner a limited purpose public figure based on his
founding of an organization that attempts to allow victims of mass shootings to avoid harassment
and maintain their privacy. Neither De La Rosa’s comments on gun control nor Pozner’s
16
App.151
founding of HONR are germane to their involuntary participation in the debate over whether the
event that took their son’s life actually happened. The Texas Supreme Court has recognized that
it would be “exceedingly rare” for a person to become an involuntary public figure. Neely,
418 S.W.3d at 71 (noting the U.S. Supreme Court correctly “forecast that it would be
‘exceedingly rare’ for a person to become a public figure involuntarily” and observing “neither
the United States Supreme Court nor this Court has found circumstances in which a person
involuntarily became a limited-purpose public figure”). On this record, we cannot say that this is
the exceedingly rare case in which the parents have involuntarily become limited purpose public
figures. See id. at 71-72.
As a result of the determination that, at this point in the proceeding, the record
does not show that the parents are limited purpose public figures, their burden is to establish by
clear and specific evidence that Appellants made the statements in the broadcast with negligence.
“For the purposes of defamation liability, a broadcaster is negligent if [he] knew or should have
known a defamatory statement was false.”
Id. at 72.
Appellants contend that the entire
broadcast and its constituent statements were not false assertions of fact because they all
constituted Jones’s opinion and conclusions based on his opinions. But many of the broadcast’s
assertions and conclusions are not opinions, but instead are assertions of fact. For example,
Appellants’ broadcast contains factual allegations that De La Rosa’s interview on CNN was
staged on green screen, that the school had been closed before the shooting occurred, and that the
victims of the Sandy Hook shooting might not actually have been killed. Appellants do not
argue or provide any support to show that a green screen was actually used in De La Rosa’s
interview or that any part
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