Calling Abortion Groups “Criminal Organizations” = Constitutionally Protected Opinion, Even When Abortion Was Legal
From Lilith Fund for Reproductive Equity v. Dickson, decided yesterday by the Texas Supreme Court, in an opinion by Justice Jane Bland:
In these companion cases, advocacy groups supporting legalized abortion have sued an opponent of it, claiming that he legally defamed them by making statements that equate abortion to murder and by characterizing those who provide or assist in providing abortion, including the plaintiffs, as “criminal” based on that conduct. The speaker responded that his statements represent his opinion about that conduct as part of his advocacy for changes in the law and its interpretation. {The events giving rise to these two lawsuits occurred in the years preceding the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022).}
Two courts of appeals considered whether the speaker’s statements could be defamatory and reached opposite conclusions. One court of appeals placed the statements in the context of the ongoing moral, political, and legal debate about abortion. It concluded that the statements are political opinions that voice disagreement with the legal protections afforded to abortion providers. That court of appeals ordered the suit dismissed.
The other court of appeals examined whether a court could legally verify the speaker’s statements—in other words, it asked whether abortion met the legal definition of murder under the Texas Penal Code at the time. Concluding that the speaker’s statements were inconsistent with the Penal Code, that court of appeals permitted the defamation suit to continue.
We granted review to resolve the conflict between the two courts. We hold that the challenged statements are protected opinion about abortion law made in pursuit of changing that law, placing them at the heart of protected speech under the United States and Texas Constitutions. Such opinions are constitutionally protected even when the speaker applies them to specific advocacy groups that support abortion rights….
An examination of the statements and their context shows no abuse of the constitutional right to freely speak. The speaker did not urge or threaten violence, nor did he misrepresent the underlying conduct in expressing his opinions about it. Either potentially could have removed his constitutional protections….
A reasonable person is … aware that the primary argument espoused against legalized abortion is that abortion is an unjust killing of human life—that it is, in essence, murder. Equally apparent is that such statements reflect
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