As Daily Mail explained at the time, a year (or so) ago, Texas oil billionaire T. Boone Pickens, Jr. and three of his children — Elizabeth Cordia, Pamela Pickens, and Thomas B. Pickens III – sued his son Michael O. Pickens. Pickens v. Cordia, 2014 WL 2134540 (Texas Court of Appeals 2014).
The plaintiffs in this lawsuit sued Michael for invasion of privacy by public disclosure of private facts,defamation, statutory libel, and intentional infliction of emotional distress for remarks he published about them on a blog. In addition, Pamela brought a separate claim for harmful access by computer (Pickens v. Cordia, supra).
Michael then moved to dismiss the lawsuit under chapter 27 of the Texas Civil Practice and Remedies Code. . . . The TCPA provides an expedited means for dismissing actions involving the exercise of certain constitutional rights, including free speech. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001–.011. . . . After a hearing, the trial court granted dismissal of the harmful access by computer claim but denied dismissal of the remaining claims.
I assume Michael filed his motion under §27.003(a) of the TCPA, which states that “[i]f a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.” The opinion refers to T. Boone Pickens, Jr. and the three children who were defendants in Michael’s suit as the “appellees”, and I will follow suit.
Michael appealed “the partial denial of his motion, and Pamela cross-appeals the dismissal of her harmful access by computer claim”. Pickens v. Cordia, supra.
The Court of Appeals began its analysis of the parties’ arguments by noting that
“Michael is a recovering drug addict who, as an `interventionist,’ helps addicts `to get and stay clean.’ He also writes a blog that he says has as its `primary theme’ his own `history of, and then recovery from, substance addiction.’ This blog, `5 days in Connecticut,’ is the center of the claims in the lawsuit.
The blog contains a number of posts. Many generally relate to Alina Lodge, where Michael underwent inpatient treatment, include personal stories about Michael’s time at Alina Lodge, or address matters he learned while at Alina Lodge. Other posts, including a seven-page entry entitled `My Story,’ relate personal stories concerning Michael’s upbringing, his family, his addiction, and his recovery.
`My Story’ presented a critical picture of Michael’s father and his home life. Among other things, Michael’s blog portrayed his father as a fear-inducing, hateful person who `instigate[d]’ arguments with his children to get a `big win,’ used money to control people, and subjected his children to `child abuse.’ As for his siblings, Michael said none of them had been `successful in life’ and `[w]e have all struggled with tremendously difficult lives, each defined by its own variety of downstream wreckage, inherently the result of all child abuse.’ After detailing his years of alcohol and drug abuse, he characterized the members of his `family of origin’ as `all addicts.’ Pickens v. Cordia, supra.
According to the opinion, the appellees then sued Michael,
alleging he had invaded their privacy and exposed them to ridicule, humiliation, and extreme embarrassment by posting false statements about them on his blog. Pamela also alleged a claim for harmful access by computer under section 143.001 of the Texas Civil Practice and Remedies Code.
Appellees later amended their petition to add a claim for intentional infliction of emotional distress in which they alleged Michael attempted to extort money from them. Specifically, [they] alleged that shortly after they filed suit, Michael got word to [them] that he was going to file affirmative claims against T. Boone and offered to settle the suit for $20 million. When asked how he came to that number, Michael’s attorney said $17 million was for Michael’s claims and $3 million was for Michael to forgo giving an interview with D Magazine, writing a book, and appearing on the Dr. Phil television program.
Appellees alleged Michael’s attorney represented that `paying $20 million would give [T. Boone] the opportunity to avoid having his dirty laundry aired in public.’ They alleged `Mike’s false and defamatory statements, his invasion of [appellees’] privacy, and his extortionate threat have caused [appellees] to suffer extreme emotional distress and may have damaged their reputations.’
Pickens v. Cordia, supra.
As noted above, Michael moved to dismiss the lawsuit, the trial judge dismissed Pamela’s “harmful access by computer” claim and denied Michael’s motion as to the remaining claims. Pickens v. Cordia, supra.
The Court of Appeals began its analysis with Michael’s motion, noting that the
stated purpose of the TCPA 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 ANN. § 27.002. . . . To promote these purposes, chapter 27 provides a means for expedited dismissal of unmeritorious suits that are based on, related to, or in response to a party’s exercise of free speech. Id. § 27.003(a). The statute is to be `construed liberally to effectuate its purpose and intent fully.’ Id. § 27.011(b).
To prevail on a motion to dismiss, the movant bears the initial burden to show by a preponderance of the evidence that the action `is based on, relates to, or is in response to the party’s exercise’ of free speech. Id. § 27.005(b)(1). The `exercise of free speech’ is defined as a `communication made in connection with a matter of public concern.’ Id. § 27.001(3). As relevant to this appeal, a `matter of public concern’ includes an issue related to (1) health and safety, (2) community well-being, and (3) a public figure. Id. § 27.001(7)(A), (B), (D). If the movant satisfies this burden, then the trial court must dismiss the action unless the party who brought the action `establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.’ Id. § 27.005(c). Pickens v. Cordia, supra.
The court began with “whether Michael met his burden of proving by a preponderance of the evidence that appellees’ action is based on, related to, or in response to his exercise of free speech.” Pickens v. Cordia, supra. Michael claimed his blog concerned issues
related to `addiction, parental abuse, fathers’ responsibilities to their children and family dynamics,’ all of which he contends relate to health and safety and community well-being. In addition to a copy of his blog, he relies on news articles concerning the death of his nephew, Ty, of a possible heroin overdose; an internet article on the definition of addiction from the American Society of Addiction Medicine; a Science Daily internet article entitled “Prescription Drug Misuse Remains a Top Public Health Concern”; and an article from the Texas Department of Family and Protective Services regarding the importance of a father to a family. Pickens v. Cordia, supra.
The Court of Appeals “agree that issues of `addiction, parental abuse, fathers’ responsibilities to their children and family dynamics’ generally may be matters of public concern,” but found that Michael’s blog
is not a general purveyor of information on those subjects. Rather, Michael’s blog is akin to a personal diary of his journey from drug addiction to recovery in which he draws upon his perceived family experiences as an explanation for his addiction. Its primary focus is Michael. As his brief explains, his blog contains stories that `generally concern the historical events that have shaped his behavior and made him ultimately into the person he is today, revealing his own trial and tribulations.’
And it is just that—a personal account of his life, from his own perspective, in which he also makes remarks about his family members that they contend are false and defamatory. We cannot conclude that statements of private life, such as those recounted in Michael’s blog, implicate the broader health and safety concerns or community well-being concerns contemplated by chapter 27. Pickens v. Cordia, supra.
Michael also argued that his blog related to a “matter of public concern” because it
includes his comments on public figures. The statute does not define public figure, but there are numerous cases addressing this issue in the defamation context. Public figures fall into two categories: (1) all-purpose, or general-purpose, public figures, and (2) limited-purpose public figures. WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Texas Supreme Court 1998). General-purpose public figures are those individuals who have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). Limited-purpose public figures are only public figures for a limited range of issues surrounding a public controversy. Id. Michael argues his father and brother, T. Boone and Thomas, are both general-purpose public figures.
The rationale behind the public figure doctrine is that the public figure has reached such a level of prominence in the affairs of society that he is risking or inviting the spotlight of public attention and comment, or that he is attempting to influence resolution of issues involved in the controversy. See Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., supra. A person becomes a general-purpose public figure only if he is a `well-known “celebrity,” his name a “household word.”’ Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287 (U.S. Court of Appeals for the District of Columbia Circuit 1980). He must have `assumed a role of especial prominence in the affairs of society.’Waldbaum v. Fairchild Publ’ns, Inc., supra.
`The public recognizes him and follows his words and deeds, either because it regards his ideas, conduct, or judgment worthy of its attention or because he actively pursues that consideration.’ Id. Public figures are frequently so famous that they `may be able to transfer their recognition and influence from one field to another.’ Id. n. 15 . . . . ; see Tavoulareas v. Piro, 817 F.2d 762 (U.S.Court of Appeals for the District of Columbia Circuit 1987) (en banc). Consequently, it is reasonable to `attribute a public character to all aspects of their lives.’ Tavoulareas v. Piro, supra. Pickens v. Cordia, supra.
Michael’s evidence that his brother Thomas was a general-purpose public figure was
a one-paragraph `Frontburner’ article published in D Magazine entitled, `T. Boone Pickens’ Son Proves That His Father’s Name Will Be Used In All Headlines Written About His Children’s (Alleged) Misdeeds’ and an article published in the Courthouse News Service detailing a civil suit against Thomas alleging company mismanagement. This evidence shows only that Thomas had been sued for conduct unrelated to any of the allegations in this lawsuit.
Nothing about this evidence shows Thomas is sufficiently famous or notorious to justify being treated as a public figure for all purposes nor does it show he has assumed any prominence with respect to any public controversy that allows him to be considered a public figure for limited purposes. Pickens v. Cordia, supra.
As to his father’s status as a public figure, Michael relied on the following evidence:
(1) an internet feature article on T. Boone from upstart.bizjournals.com, originally published in the May 2007Conde Nast Portfolio magazine, in a section entitled `Fortune Hunter’; (2) an internet screen print from a Google search for `t. Boone Pickens’ showing `[a]bout 10,800,000 results’; (3) a page from http://www.forbes.com/profile/t-boone-pickens/ showing Pickens’s net worth; (4) a three-paragraph article from http://www.businessweek.com by Pickens, entitled, `How to Convert the Country to Natural Gas’; (5) a June 25, 2008 article from the caucus.blogs.nytimes.com entitled, `T. Boone Pickens Says No Deal on Swift Boat Bounty,’ recounting Pickens’s offer to `pay anyone’ who could disprove accusations by the Swift Boat Veterans for Truth against then presidential candidate John Kerry; and (6) an internet page from http://www.pickensplan.com, entitled `America is addicted to OPEC oil.’ Pickens v. Cordia, supra.
The Court of Appeals was not persuaded, noting that Michael argued that these items
`show the general public interest’ in his father. Our review suggests the evidence presented by Michael shows the public interest in T. Boone arises from his connections and opinions in the energy industry. While we acknowledge the Google search contained a vast number of results, a number alone cannot establish public-figure status. The only evidence relating to the content of the Google results is captured in a single page showing a wikipedia entry, T. Boone’s website, the Pickens Plan website, the Forbes listing, the website for T. Boone’s foundation, his Twitter account, two articles about this lawsuit, two articles about his grandson’s death, and two energy-related articles.
Other than the articles on his grandson’s death, these entries relate to T. Boone’s social media account, business websites, and his involvement in energy issues. Thus, while the evidence shows some previous coverage regarding T. Boone outside the business world, we cannot conclude Michael has made the necessary statutory showing to establish the kind of prominence associated with general-purpose public figures. Pickens v. Cordia, supra.
The court also noted that “[a]t best,” the evidence presented suggested that
T. Boone could be a limited-purpose public figure. Limited-purpose public figures achieve their status by`thrusting themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved” or because they “voluntarily inject [themselves] or [are] drawn into a particular public controversy.’ Gertz v. Robert Welch, Inc., supra. The evidence presented by Michael shows T. Boone has put himself in the forefront of issues related to energy.
The allegations in this lawsuit, however, have nothing to do with an energy controversy. We conclude Michael has not met his statutory burden to establish his blog relates to health, safety, or community well-being, nor has he met his statutory burden to show that T. Boone and Thomas are public figures. Pickens v. Cordia, supra.
The court therefore held that the trial judge did not err in denying Michael’s motion on the appellees’ claims or invasion of privacy, defamation, libel, and intentional infliction of emotional distress. Pickens v. Cordia, supra.
The Court of Appeals then took up Pamela’s argument that the judge erred in dismissing “claim for violation of section 143.001 of the Texas Civil Practice and Remedies Code for harmful access by computer.” Pickens v. Cordia, supra. It noted that § 143.001 creates
a statutory cause of action for a person who is injured or whose property is injured as a result of a violation of chapter 33 of the Texas Penal Code, if the conduct constituting the violation was committed knowingly or intentionally. TEX. CIV. PRAC. & REM. CODE ANN. § 143.001. The petition pleaded a cause of action under section 33.07(b).
In her brief, Pamela asserts she sued Michael based on an email that she had reason to believe Michael sent, using the name Robert Barris, to her business associates, to the CEO and COO of her employer, Morgan Stanley, and to the California Securities Commission, that was critical of Pamela and accused her of using her `mother’s woes’ to `drum up business.’ Pickens v. Cordia, supra.
At the hearing the trial judge held on the motion to dismiss,
Pamela’s counsel told the trial court he took limited discovery and that Michael had denied sending the email or using the name Robert Barris. Counsel also told the trial court that Pamela did not have evidence that Robert Barris is Michael, other than circumstantial evidence. Counsel told the court one of the elements that Pamela must prove is that the `real Robert Barris’ did not consent to the sending of the email. The trial court granted Michael’s motion to dismiss the claim. Pickens v. Cordia, supra.
The Court of Appeals explained that, on appeal, Pamela argued that since Michael
denied sending the email, there can be no evidence the lawsuit was related to Michael’s exercise of free speech and no chapter 27 basis for dismissing the claim. We agree. Michael’s motion to dismiss is premised on the notion that one purpose of chapter 27 is to `encourage and safeguard the constitutional rights of persons to speak freely.’ Given that he has denied sending the email, we conclude chapter 27 does not apply to this cause of action.
We also reject Michael’s assertion that any error in dismissing the claim was `harmless’ because he denied using Robert Barris’s name and Pamela did not have evidence to refute his denial through the limited discovery that had been done. We cannot agree. First, given Michael’s denial, the statute does not encompass the claim. Second, Pamela should have the opportunity to uncover the identity of Robert Barris and the sender of the email through discovery. We sustain Pamela’s issue. Pickens v. Cordia, supra.
The Court of Appeals therefore reversed “the trial court’s order to the extent it dismisses Pamela’s claim for harmful access by computer and remand that claim to the trial court for further proceedings consistent with the opinion.” Pickens v. Cordia, supra. It affirmed the trial court’s order “in all other respects.” Pickens v. Cordia, supra.
This post originally appeared on the CYB3RCRIM3 blog (Observations on technology, law and lawlessness) and is reproduced with permission and thanks.