Because the Texas Civil Appeals Court issued two separate opinions from the same case, and because the case may generate some interest, two reports on the same case seemed most efficient.

Texas by statute limits lawsuits that may involve “exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code Ann. §27.003(a). In order to present a claim of defamation allowable under the statute, a plaintiff must present evidence that supports the elements of their claim sufficient to present a viable claim.

In Diocese of Lubbock v Guerrero, Slip Op. (Tex. Civ. App. 7th, 2019), in order to present a defamation claim sufficient to overcome the protection of a free speech claim, the Claimant Guerrero had to prove there was an exercise of free speech. Naming him on the publicly disseminated list of sex offenders “credibly accused” by the diocese qualified as free speech. The list was a “communication.” The list addressed a matter of “public concern.” The elements and proof of the defamation claim was summarized in our prior post on this case and the appellate court deemed it sufficient to state a cause of action. The diocese admitted it had no evidence the Claimant sexually assaulted someone under the age of 18 even though the Claimant was listed among those who allegedly had done so. The allegation against Claimant was that he engaged in sexual misconduct with an adult. The reason the adult was classified as a victim, such as inability to consent or other possible claims, was not recited in the opinion. While Claimant was allowed to pursue his defamation claim at the trial court level, the appellate court also dismissed the claim of intentional infliction of emotional distress. Claimant had no evidence the diocese intended to emotionally harm him. The diocese defined “minor” as anyone not capable of giving consent. Sanctions and attorney fees might be awarded against Claimant on the emotional distress claim on remand to the trial court.

While the cost of the conspiracy of silence, and possibly tolerance, was high, that does not automatically mean that transparency would not also be costly. Most likely, churches will chose to settle with credible victims and litigate with alleged perpetrators. A few such trials might be the next step, and cost, of transparency.

• Sexual Misconduct