On June 10, 2021, the Texas Court of Appeals held that a trial court had erred in denying motions to dismiss brought by KHOU-TV and the Houston Chronicle under the Texas Citizens Participation Act (the TCPA), the Texas anti-SLAPP statute.  The three-justice panel held that the plaintiff, Status Lounge, failed to show that the news outlets’ reports on a shooting at its bar were not substantially true. See KHOU-TV, Inc. v. Status Lounge Inc., No. 14-19-00393-CV, 2021 Tex. App. LEXIS 4584 (Tex. App. June 10, 2021).

Police reports of the 2016 shooting described an altercation between the “owner” of the bar and a band member over the duration of the band’s performance. The police reports went on to say that the “manager” of the bar shot the band member and fled the scene. Both KHOU-TV and the Houston Chronicle published articles stating that the owner shot the band member. The KHOU-TV article also stated that the owner was taken into custody, while the police reports were silent on this matter. Status Lounge sued the media defendants for libel and business disparagement. Both outlets filed motions to dismiss under the TCPA.

In the lower court, Status Lounge argued that the foregoing factual discrepancies were “distinctions with a difference,” rendering the articles entirely false. The trial court agreed with Status Lounge and denied the motions, stating that it had provided sufficient evidence to avoid dismissal under the TCPA.

The Texas Court of Appeals disagreed with the trial court. Finding in favor of the media defendants, the court reversed and remanded the case for further proceedings – including granting the motions to dismiss and awarding attorneys’ fees to the defendants.

Motions to dismiss under the TCPA involve a two-part inquiry. First, a defendant must show by a preponderance of the evidence that the “plaintiff’s claim ‘is based on, relates to, or is in response to’ the defendant’s exercise of the right to petition, association, or free speech.” Once this showing is made, the burden shifts to the plaintiff to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.”

Applying the TCPA inquiry, the Court of Appeals found that Status Lounge failed to meet its burden. Status Lounge conceded the first element – the articles related to the news outlets’ right of free speech. The Court further found that Status Lounge did not provide sufficient evidence of falsity. The court noted that “[a] statement need not be perfectly true; as long as it is substantially true, it is not false.” Substantial truth is determined by comparing the “gist” of the allegedly defamatory broadcast to a truthful report of the official proceedings.

The gist of the articles at issue here closely mirrored the police reports, with the exception of a few non-fatal flaws. Specifically, the court reasoned that any confusion about the identity of the suspect as the “manager” or “owner” existed in both the police report, which did not clarify that the owner and manager were separate people, and the defendants’ news articles.

KHOU-TV’s reference to a suspect taken into custody also did not render the entire report false. The gist of both articles – “that Status Lounge’s representative shot a band member over a dispute about how long the band would play” – remained substantially true. As the court stated, “[m]inor inaccuracies do not amount to falsity so long as the gist or ‘sting’ of the story is correctly conveyed.”

Special thanks to Ally Kolsky for contributing to this post.