A Burden Shift Within A Burden Shift—An Anti-SLAPP ‘Inception’

Photo by Christophe Hautier on Unsplash

         Christopher Nolan’s ‘Inception’ (2010) leaves the audience guessing at the end whether Dom Cobb, played by Leonardo DiCaprio, is awake and back with his children or still dreaming. Cobb’s spinning top is the focus point. To avoid getting trapped in a deep-dream state after trekking through another person’s sub-sub-subconscious, Cobb spins his top. If it falls after a short spin, he is awake; if it keeps spinning, he is dreaming. The film ends with Cobb spinning his top, as he eagerly eyes his children, and then impatiently running toward his children before he verifies whether the top falls or continuously spins. The camera focuses on the top. It tilts. It tilts again. Then the film ends. Is Cobb stuck in a dream within a dream? Has he traveled too far into someone else’s sub-sub-subconscious, unable to “pop” back to the beginning, back to his own reality?

         The Austin Court of Appeals recently dealt with a far less metaphysical, but no less abstract situation in Texas Jewelers Association, et al. v. Ann Glynn. The court was tasked with deciding the following question: Who shoulders the burden to prove “actual malice” in a qualified privilege defense to a defamation claim when Texas Civil Practice & Remedies Code § 27.005(d) applies?

         Section 27.005(d) addresses the burden shift after the burden shift after the initial burden that takes place in an Anti-SLAPP Motion to Dismiss. The movant under Chapter 27 bears the burden to prove by a preponderance of the evidence that Chapter 27 applies. See Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant sustains its burden, then the burden shifts to the nonmovant to establish by clear and specific evidence a prima facie case for each essential element to its claim. Id. at § 27.005(c). If the nonmovant sustains its burden, then the court may not dismiss the claim unless (here comes the burden shift) the movant establishes by a preponderance of the evidence each essential element of a defense to the nonmovant’s claim. Id. at § 27.005(d).

         But when an affirmative defense includes a burden shift, does Section 27.005(d) cancel out that burden shift? The Austin Court of Appeals did not definitively answer this question. So we are left with a teetering spinning top situation. But law, unlike cinema, cannot keep its audience guessing at the answer. Fortunately, the court’s opinion provides some guidance on how the question might be answered.

         Texas Jewelers Association

         Ann Glynn (plaintiff) sued Texas Jewelers Association and its President (Brad Koen) and Treasurer (Rex Solomon) for tortious interference with an existing contract and defamation, among other causes of action. Glynn resigned as Executive Director from Texas Jewelers Association in 2016, following allegations that funds were missing from the Association’s accounts. In her suit, Glynn alleged that Koen and Solomon engaged in efforts to build a case against her for misuse of association funds.

         The Defendants filed a Motion to Dismiss pursuant to Chapter 27. Glynn conceded that Chapter 27 applied, but argued that she established by clear and specific evidence each element to her causes of action. The trial court granted the defendants motion to dismiss in part, but denied the motion as to the plaintiff’s tortious interference and defamation claims.

         The court of appeals reversed the trial court’s ruling on the plaintiff’s tortious interference claim and her defamation claim against Koen, but affirmed the trial court’s ruling on the plaintiff’s defamation claim against Solomon. With respect to her defamation claims against Koen, the court held that Glynn failed to provide proof that Koen published any defamatory statement about Glynn. Glynn attributed every alleged defamatory statement to Solomon. As a result, she did not prove by clear and specific evidence the element of “publication” as to Koen.

         The court found, on the other hand, that Glynn sustained her burden to prove by clear and specific evidence each element to her defamation claim against Solomon. Relying on section 27.00(d), Solomon argued that the trial court erred in denying his motion to dismiss Glynn’s defamation claim because Solomon proved by a preponderance of the evidence each essential element to his qualified privilege defense.

         The court acknowledged that the qualified privilege defense includes a burden shift. The defendant bears the burden to prove the qualified privilege attaches to the communications at issue. The privilege attaches to a communication that is “made in good faith and the author, the recipient or a third-person, or one of their family members, has an interest that is sufficiently affected by the communication.” Once the defendant proves the privilege attaches to the communication at issue, then “the burden shifts to the plaintiff to prove that the defendant made the statements with actual malice.”

         Notwithstanding the burden shift to the qualified privilege defense, the parties assumed and did not contest that the defendant/movant bears the burden to prove lack of malice. The court of appeals reasoned: “Neither party contests this approach, so we will address the case as the parties litigated it in the court below. Cf. Alamo Heights Indep. Sch. Dist. V. Clark, 544 S.W.3d 755, 783 (Tex. 2018) (applying causation standard advocated by both parties without deciding whether standard was correct).” The court found that Solomon did not sustain his burden to prove lack of malice by a preponderance of the evidence and, as a result, affirmed the trial court’s denial of Solomon’s motion to dismiss Glynn’s defamation claim against him.

         What is the Correct Standard?

         The court of appeals made an interesting decision to forego articulating the correct standard to apply under section 27.005(d) to an affirmative defense with a burden-shifting component. Courts of appeal review de novo “whether each party has met its respective burden under the Act’s . . . dismissal mechanism.” Grant v. Pivot Technology Solutions, Ltd., 2018 WL 3677634 *3 (Tex. App.—Austin Aug. 3, 2018). One might think that looking “brand new” at the issue concerning the parties’ respective burdens under Chapter 27 would include looking “brand new” at whether the correct standard was applied by the court below. Of course, if the parties did not sufficiently brief the issue for the court to ascertain the correct standard, maybe the court does best by going with the standard assumed by the parties. But what if the parties are wrong on the standard?

         The Austin Court of Appeals supported with a Cf. citation its decision to side step determining the correct standard. “Cf.” is short for compare. The Bluebook informs law students and legal practitioners that “cf.” denotes the cited authority may not expressly (or even obviously) support the stated proposition. Black’s Law Dictionary defines “cf.” as “a citation signal [that] directs the reader’s attention to another authority or section of the work in which contrasting, analogous, or explanatory statements may be found.” (243). The Texas Jewelers Association court asks the reader to compare its decision to apply the standard assumed by the parties with the Texas Supreme Court’s decision in Alamo Heights Independent School District v. Clark, 544 S.W.3d 755 (2018):

Clark asserts a factual dispute exists regarding motivation by sexual desire under Oncale’s first evidentiary route. As a predicate matter, the parties disagree about whether “credible evidence” that the harasser is homosexual is required. Some courts have treated Oncale’s “credible evidence” of homosexuality language as imposing a mandatory requirement of such evidence in every first-route evidentiary case. Other courts have determined this route requires only proof of motivation by sexual desire, which may be shown by any relevant evidence, including—but not limited to—sexual propositions combined with “credible evidence” that the harasser is homosexual. We need not determine which approach is correct because, under either, the evidence is lacking.

         There are notable differences between the Texas Jewelers Association issue and the Alamo Heights issue. While both the Texas Jewelers Association and Alamo Heights decisions side-stepped a question of law, to whom the burden of proof falls in the former case and the quality and type of evidence required in the latter case, the Alamo Heights court declined to select “the correct approach” because under either approach the evidence was lacking. The Alamo Heights Court may have been adhering to “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs, Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring). The Texas Jewelers Association court, however, did not side-step the burden of proof issue because the result would be the same whether the movant or nonmovant bore the burden to prove actual malice; rather, the court side-stepped the issue because the parties assumed the burden fell on the defendant/movant. Notably, the result could have been different in Texas Jewelers Association if the burden shifted to the plaintiff/nonmovant to prove actual malice because, arguably, section 27.005(c) would apply and the nonmovant would need to prove actual malice by clear and specific evidence, not merely by a preponderance of the evidence—more on this point below.

         So what is the correct standard? I propose three ways to approach this question. First, look at the qualified privilege defense to determine if “actual” malice” is or should be treated as an element of the defense or something else. Second, look at the difference between a summary judgment, which places the burden on the movant, and a motion to dismiss. Third, consider the purpose of Chapter 27. Although I will not go into much detail here, a sketch of these three inquiries reveals possible answers to our inquiry.

         First, qualified privilege as an affirmative defense against defamation claims serves to safeguard free speech. See Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014). The privilege itself requires only a showing by the defendant that the communication at issue was “made in good faith and the author, the recipient or a third-person, or one of their family members, has an interest that is sufficiently affected by the communication.” Id. In one sense, once the privilege attaches, it is no different than the privilege attached to a public figure in a defamation case, making “actual malice” part of the plaintiff’s prima facie case. In fact, the Texas Supreme Court included the qualified privilege within the protections afforded in New York Times Co. v. Sullivan:

The New York Times definition of actual malice which this Court applied in El Paso Times is likewise applicable in the instance case, all three cases being libel suits, all three cases involving publishers’ privileges and all three cases requiring malice to overcome the privileges.

Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 900 (Tex. 1970) (citing El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex. 1969) and New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). Under this scheme, is “actual malice” an element of the qualified privilege defense? If not, then, based on a plain reading of Texas Civil Practice & Remedies Code § 27.005(d), one might argue that the movant does not bear the burden to prove lack of malice. Cf. Goodman v. Gallerano, 695 S.W.2d 286, 287 (Tex. App.—Dallas 1985, no writ.) (“To assert that a defamation is qualifiedly privileged is an affirmative defense that is available only if evidence shows that the communication was made in good faith and without actual malice.”).

         Second, the Texas Jewelers Association court compared the standard assumed by the parties to the standard applied in the summary judgment context. The summary judgment movant always bears the burden to prove the absence of a genuine issue of material fact. When relying on a defense, it is the summary judgment movant’s burden to conclusively prove every element of its defense. Whether “actual malice” is considered an element (stated in the negative) of the movant’s defense or as part of the plaintiff’s prima facie case (stated in the affirmative) once the privilege attaches does not change the fact that the movant bears the burden to demonstrate the absence of a genuine issue of material fact on the actual malice issue; that is, whether it is part of the defense or part of plaintiff’s prima facie case, the summary judgment movant must conclusively negate actual malice—once the movant demonstrates the privilege attaches, the only issue remaining on the defamation action is whether the statement was made with actual malice. Chapter 27 does not operate the same way. It does not require the movant to prove, as a matter of law, every element to its affirmative defense or disprove the facts of at least one of the elements, or the only remaining element, to the nonmovant’s claim or defense. How, if at all, do the difference between a summary judgment motion and Chapter 27 motion to dismiss inform the inquiry into how the burden of proof should be distributed on a defendant’s qualified privilege defense under section 27.005(d)?

         Third, consider Chapter 27’s stated purpose:

The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

Tex. Civ. Prac. & Rem. Code § 27.002.

         The burden-shifting mechanism in Chapter 27 is designed to promote Chapter 27’s stated purpose. The movant must first demonstrate that Chapter 27 applies, that is, that the legal action is based on, related to, or in response to the movant’s exercise of one of the enumerated First Amendment rights. The burden then shifts to the nonmovant to demonstrate a meritorious claim. If the nonmovant sustains its burden, then the burden shifts again to the movant to prove the elements of a defense to the nonmovant’s claim. This third shift is important to our inquiry here. It affords the movant another opportunity to demonstrate that his, her, or its First Amendment rights are undermined by an unmeritorious claim. Is the purpose of Chapter 27 undermined or otherwise thwarted if section 27.005(d) requires the movant to prove the negative of an element (actual malice) that by law the nonmovant must prove?

Tilt. Tilt. End.

Daniel Correa