Pouring Water on Speaker’s Head During Press Conference Doesn’t “Constitute Protected Speech”
The Texas Citizens Participation Act—Texas’s anti-SLAPP statute—provides a special procedure for dealing with certain lawsuits: Defendants can move for prompt dismissal (and get their attorney fees paid if they win),
- if a lawsuit “is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party’s communication,”
- though the case can still go forward if the plaintiff “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.”
How does this play out if plaintiff accuses defendant of assaulting him during the defendant’s public protest? Sanchez v. Striever, decided today by the Texas Fourteenth Court of Appeals, deals with that. First, the facts:
Steve Striever poured water on [Orlando] Sanchez’s head while Sanchez [then Harris County Treasurer] addressed the media and others during a press conference.
Sanchez sued Striever for assault, and Striever moved to dismiss the claim using a normal motion to dismiss available for all cases (under Texas Rule of Civil Procedure 91a), and also using the TCPA—and the trial court held in Striever’s favor, dismissing the case and awarding him attorney fees:
[T]he Court … concludes that the act of pouring water over Mr. Sanchez constitutes protected speech, and that the suit by Mr. Sanchez also otherwise implicates protected First Amendment rights of the Defendant…. Once the burden shifted, Plaintiff failed to adduce clear and specific evidence of a prima facie case of his claims. Specifically, Plaintiff did not adduce any evidence of any injury whatsoever, even if he could allegedly recover mental anguish damages under the circumstances.
The Court of Appeals majority reversed, in an opinion by Justice Kevin Jewell, joined by Justice Tracy Christopher. As to the 91a motion, it concluded that Striever’s conduct could indeed be assault:
[A] person commits … assault … if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative…. Sanchez pleaded each element of a claim … by alleging that Striever intentionally and/or knowingly caused physical contact with Sanchez by pouring water on his head, and that Striever knew or reasonably should have believed that Sanchez would regard the contact as offensive or provocative….
A civil assault claim … does not require personal injury. As offensive physical contact is the gravamen of the claim, the defendant is liable for contacts that are offensive and provocative regardless whether they cause physical harm. Such a claim addresses the personal indignity that often flows from an offensive or provocative invasion of personal space or interests. Emotional distress is not merely incidental to a claim for certain forms of assault; it is “the essence” of it….
In the landmark Fisher v. Carrousel Motor Hotel, Inc. (Tex. 1967) …, for example, Emmit Fisher was standing in line at a luncheon hosted by business associates when the manager of the club approached and “snatched the plate” from Fisher’s hand, shouting that Fisher, a black man, could not be served. The Supreme Court of Texas upheld a jury award in Fisher’s favor, stating that recovery was permitted for “humiliation and indignity” even though no actual c
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