Photo: The popular 2019 meme of women seeming to yell at Smudge the cat.
Defamation causes of action are once again hitting the headlines — this time from the presidential family itself. Ivanka Trump and Jared Kushner are threatening to sue The Lincoln Project (a political action group) over allegedly defamatory billboards it placed in Times Square. These billboards depict Ms. Trump gesturing towards COVID-19 death statistics and a quote from Mr. Kushner stating “[New Yorkers] are going to suffer and that’s their problem.” The Lincoln Project, of course, believes that it is merely exercising its First Amendment right to free speech and it refuses to remove the billboards, prompting Ms. Trump’s and Mr. Kushner’s threats.
What do defamation plaintiffs like Trump and Kushner have to prove to remove allegedly defamatory statements and secure compensation or punitive damages from those who made the statements? It’s really a matter of state law. Most states have very similar, if not identical, defamation requirements with slight differences found in the available defenses and remedies.
This article addresses Texas defamation causes of action and their defenses because most of our clients' cases are litigated in the state of Texas. This article is intended to provide the reader with an overview of Texas law only and is not meant to address the viability of the Trump and Kushner claims.
Texas Defamation Causes of Action
The elements of a defamation cause of action in Texas are as follows:
The defendant published a statement;
The statement was defamatory and concerned the plaintiff; and
The defendant made the statement with actual malice (if the plaintiff was a public figure) or negligence (if the plaintiff was a private figure).
The first element is easy for a plaintiff to establish in most defamation claims, when the allegedly defamatory statement was published online or in written form. All a plaintiff must do is identify the written statement he or she believes to be defamatory.
The second element is generally the crux of a plaintiff’s defamation claim. In Texas, defamation is defined as the communication of a false statement to a third party that damages another’s reputation. There are two types of defamation claims in Texas — one concerning written or published communications (libel) and oral communications (slander). This article focuses on libel claims since many of the litigated claims involve libel.
The third element often creates confusion as to the requisite mental state a plaintiff must prove against the defendant — which depends upon the status of the plaintiff — as a public or private figure. If the plaintiff is a private figure, he only needs to establish that the defendant made the statement negligently. If the plaintiff is a public figure on the other hand, he must establish that the defendant made the defamatory statement with actual malice, meaning with knowledge that the statement was false or with reckless disregard of whether the statement was false.
Texas further breaks down public figures into three categories: (1) public officials; (2) general-purpose public figures; and (3) limited-purpose public figures. In determining whether someone is a public official, the Texas Supreme Court examines a number of factors:
public interest in the plaintiff’s position;
authority to exercise on behalf of the government;
ability to authorize expenditure of public funds;
amount of public contact;
supervision of other employees; and
existence of a representative capacity for the government.
In the State of Texas, plaintiffs like Ms. Trump and Mr. Kushner would likely be considered public officials due to their positions as White House advisors.
General-purpose public figures are those who achieve such pervasive fame that they become public figures in all contexts and for all purposes. These individuals would include household-name celebrities and politicians.
Limited-purpose public figures are those who have thrust themselves to the forefront of specific controversies in order to influence the resolution of the issues involved as well as those who have distinguished themselves in a particular field. These people have not, however, reached the level of notoriety of celebrities included in general-purpose public figures. Some people that have been found to be limited-purpose public figures in Texas include a popular college football coach accused of fixing a football game and a retired general who advocated on national security issues.
Damages Available to Texas Defamation Plaintiffs
Should a defamation plaintiff be successful in her claims against the defendant who made the statement against her, she will be entitled to recover certain damages. Texas recognizes three main categories of damages in defamation cases: (1) compensatory damages; (2) exemplary damages; and (3) special damages.
Compensatory damages are those damages that compensate the plaintiff for her losses sustained due to the defendants’ defamatory statements. They are intended to make the plaintiff whole and put the plaintiff in the same position she would be in had she not been defamed.
Exemplary damages are recoverable only in cases in which a plaintiff can establish that the defendant making the defamatory statement acted with actual malice. Exemplary damages are intended to deter and serve as a punishment for a defendant’s egregious behavior. These damages are added to the compensatory damages amount.
Defamation plaintiffs may also be entitled to special damages, or those unique to the case that are properly pleaded and proven by the plaintiff. These damages are never presumed or automatically included because they represent the specific harm caused by the defamatory statement. These damages include things like loss of a business referral, loss of reputation, or loss of profits.
Defenses to Defamation Claims
Not all is lost for a defamation defendant just because he is sued. There are a handful of defenses he can bring to fight a defamation claim. The most obvious of which is truth. Because a defamatory statement is one that is false by definition, the truth of a defamatory statement is an absolute defense to a defamation claim. Another defense is that the allegedly defamatory statement was opinion. Because defamation claims center around false assertions of fact, opinions are not actionable.
There are also certain statements that are privileged, and their privileged status provides a defense to a claim of defamation. There are three main categories of privileged statements: (1) absolute; (2) qualified; and (3) fair report. The absolute privilege usually applies in official, judicial, and legislative proceedings. These are statements made in or related to judicial or legislative proceedings as well as statements made by high-ranking officials in the performance of official duties. Qualified privilege has been applied to statements made in good faith and when the author, recipient, or third party has an interest in hearing it. Examples of qualified privilege in Texas have included statements from a former employer to a prospective employer, communications during an investigation following a report of employee wrongdoing, and statements to a hospital regarding a physician’s qualifications.
As the dispute between Ms. Trump, Mr. Kushner, and the Lincoln Project demonstrates, defamation claims are alive and well both on the local and national levels. Understanding how a defamation cause of action works is important for attorneys and laypeople alike, and everyone should be prepared to defend themselves.