Scope of Texas Citizen Participation Act: What kind of communications does it cover? - Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015)

In a per curiam opinion handed down April 24, 2015, the Texas Supreme Court holds that the Texas Citizens Participation Act (TCPA) does not require a communication be in public form to qualify for protection. Under the Act, a defendant in a defamation suit or similar action may move to dismiss a claim involving the exercise of the right to free speech upon a showing that the communication was made in connection with a matter of public concern, here involving the quality of medical care. The Supreme Court reversed the Texarkana Court of Appeal, which had found the TCPA inapplicable, and remanded to that court for further proceedings.    

Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015) 

OPINION EXCERPT]

To assert a motion to dismiss under the Act, the defendant must show “by a preponderance 2 of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of . . . the right of free speech.” Id. § 27.005(b). The statute broadly defines “the exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). Under this definition, the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern. We address each element in turn. First, the statute defines “communication” as “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). 

The court of appeals concluded that because the purpose of the Act, as described in section 27.002, includes the phrase “otherwise participate in government,” the Act only protects public communication. 416 S.W.3d at 697. 

We disagree. 

This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media—regardless of whether the communication takes a public or private form. TEX. CIV. PRAC. & REM. CODE § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d at 802. In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. TEX. CIV. PRAC. & REM. CODE § 27.011.