5 September 2019 at 1:57:58 PM
Can you imagine that someone would just make up a defamatory story about Sandy Hook massacre not taking place? And how utterly sad and devastated the parents of the children who were killed would feel?
This was case 03-18-00650-CV. Alex E Jones, Infowars, LLC, Free Speech Systems LLC and Owen Chroyer v Neil Heslin.
What was the case about? Jones propogated a conspiracy theory that denied that the Sandy Hook elementary school massacre took place. He was sued by some parents of the victims, and then admitted that the massacre was real. Alex Jones tried to get the case dismissed through filing of an anti-slapp (TCPA) motion, which was denied by law. Alex Jones then appealed.
Here was Alex Jones appeal
STATEMENT OF THE CASE
Defendants appeal a denial by operation of law of defendants’ Texas Citizens Participation Act motion to dismiss plaintiff’s defamation and related claims. The trial court failed to rule on defendants’ TCPA motion within the 30 days’ statutory period after the hearing on the motion. The motion was denied as a matter of law.
Plaintiff/appellee Heslin sued defendants for defamation and defamation per se, with related liability theories of conspiracy and respondeat superior. Heslin alleged defendants defamed him in two broadcasts, June 26 and July 20, 2017. Heslin is the father of a child who was killed in the mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut in December 2012.
Defendant Alex Jones is an electronic media figure known for his opinions about Second Amendment rights, and opinions and criticism of government and mainstream media dissemination of misinformation or concealment of truth. Jones owns and operates the entity defendants. Defendant Owen Shroyer was a reporter of defendant Free Speech and often hosted media broadcasts.
Defendants/appellants filed a timely motion to dismiss under Tex. Civ. Prac. & Rem. Code §27.003, the TCPA. The parties filed affidavits in support of their respective positions. Defendants filed objections to plaintiff’s affidavits.
The trial court held a timely hearing on August 30, 2017, but the trial court xiv failed to enter a timely order on defendants’ motion within 30 days of the hearing and the motion was denied as a matter of law. The court did not rule on defendants’ objections to Heslin’s proffered affidavits, although twice requested to do so.
This is an interlocutory appeal is permitted under Tex. Civ. Prac. & Rem. Code §51.014(a)(12).
Here is part of the brief from the appellee
STATEMENT OF FACTS I. Introduction
For the past five years in scores of videos and articles, InfoWars creator Alex Jones has waged a non-stop obsessive campaign to convince his viewers that the Sandy Hook school shooting was “a giant hoax,” “synthetic,” and “completely fake with actors.” [CR 1663]. Because Mr. Heslin dared to speak out against Mr. Jones’ malicious campaign of incomprehensible lies about Sandy Hook, InfoWars cast him as a liar, tarnished the memory of his son, and ultimately placed him and his family in danger. As far back as 2013, Mr. Heslin had been concerned over InfoWars and its maniacal fabrications about Sandy Hook, but he was determined not to dignify the allegations by acknowledging their existence. [CR 1710, ¶4]. But as Jones’ inflammatory statements reached a wider audience, they were met by a growing tide of public indignation, and in June 2017, Megyn Kelly produced a feature story on the fallout from InfoWars’ various accusations. Ms. Kelly convinced Mr. Heslin to appear for an interview to discuss the pain caused by InfoWars’ lies about Sandy Hook. [CR 1710, ¶12]. During the interview, Mr. Heslin stated, “I lost my son. I buried my son. I held my son with a bullet hole through his head.” [CR 1677, ¶25].
One week later, InfoWars retaliated with a cruel and false accusation against Mr. Heslin, delivered by InfoWars host Owen Shroyer. The premise of Mr. Shroyer’s video was that Mr. Heslin was lying about having held his son’s body and having seen his injury. Mr. Shroyer began the video by citing a blog post he found on an anonymous website called “Zero Hedge.” [CR 1547]. Mr. Shroyer used the blog post as a launching point to make defamatory accusations against Mr. Heslin. He accomplished his defamation by using deceptively edited footage which he misrepresented as evidence of Mr. Heslin’s guilt.
During the video, Mr. Shroyer showed a portion of an interview with medical examiner Dr. Wayne Carver describing the identification of the victims. [CR 435]. Mr. Shroyer misrepresented this portion of Dr. Carver’s interview, along with a deceptively edited clip of Sandy Hook parent Lynn McDonnel, to falsely claim that the victims’ parents were not allowed access to their children’s bodies before burial. [CR 1683-84]. With an air of arrogant mockery, Mr. Shroyer claimed that Mr. Heslin’s statements were “not possible.” [CR 1548]. When Appellee learned about the video, he brought this lawsuit.
Given this background, Appellee was dismayed when he learned InfoWars had pled the defense of “substantial truth,” and he was shocked when he read the following sentence in InfoWars’ Motion to Dismiss:
Plaintiff cannot avoid the clear fact that there was in fact a contradiction arising from the medical examiners statements when he claimed the bodies were not released to the parents. [CR 120].
This statement is an outrageous falsehood. There is no contradiction, and the medical examiner did not claim the bodies were not released to the parents, a fact which is obvious from his repeated statements in the same interview when he confirms multiple times that the bodies were released to the parents. In one example, shortly following the edited portion used by Mr. Shroyer, a reporter asked Dr. Carver if “all the children’s bodies have been returned to the parents or mortuaries,” and Dr. Carver confirmed that “as of 1:30, the paperwork has been done.” [CR 1683, ¶59]. In the wildly out-of-context portion used by InfoWars, Dr. Carver was only discussing the initial identification process.
Nonetheless, despite Dr. Carver’s clear statements, and despite copious media coverage of open-casket funerals, InfoWars has fabricated an absurd claim in its Sandy Hook mythology in which the parents were prohibited by authorities from seeing their children’s bodies before burial. Mr. Jones has told his viewers that “the coroner said none of the parents were allowed to touch the kids” and that “the stuff I found was they never let them see their bodies.” [CR 402]. InfoWars has advanced this same disgraceful falsehood in litigation. It is reckless and dangerous to claim that Dr. Carver said, “the bodies were not released to the parents.” [CR 120]. He said no such thing, and misrepresenting his statements only feeds the fanaticism of Jones’ followers. That was exactly Mr. Shroyer’s purpose in the defamatory video, but it is unsettling to see this strategy spill over into litigation. Even here, on appeal, InfoWars continues to maintain that “the coroner said (partly corroborated by another parent) the parents were not allowed contact with the bodies.” [Appellant’s Br. 32].
In this Brief, the Court will see how InfoWars dishonestly misrepresented video footage in a “calculated and unconscionably cruel hit-job intended to smear and injure a parent who had the courage to speak up about InfoWars’ falsehoods.” [CR 1528]. These facts establish a prima facie case for defamation, and none of InfoWars’ frivolous defenses apply. For these reasons, Appellees asks the Court to remand this case for further proceedings.
II. The June 26, 2017 Video
Appellee brought suit based on a video InfoWars published to its own website and on YouTube on June 26, 2017. InfoWars falsely claims “there was no June 26 broadcast by any defendant.” [Appellants’ Br. 4]. InfoWars claims the publication challenged by Appellee occurred on June 25, 2017, in a two-hour video entitled “Exclusive Feds Plan to Drop Russia Investigation Left Plans to Riot.” [Id]. However, Appellee offered an affidavit from former Austin American-Statesmen editor and current University of Texas professor Fred Zipp, who testified that he reviewed “a July 26, 2017, YouTube video from InfoWars entitled ‘Zero Hedge Discovers Anomaly in Alex Jones Hit Piece.’” [CR 1526]. A transcript and full digital copy of the June 26, 2017 video was attached to Mr. Zipp’s affidavit. [CR 1547; 1686]. The video attached to Mr. Zipp’s affidavit is just over five minutes long. Likewise, former Snopes.com editor Brooke Binkowski testified that she “reviewed a video published by InfoWars on YouTube on June 26, 2017 relating to an interview given by Sandy Hook parent Neil Heslin.” [CR 1676]. Mr. Heslin, along with witnesses Dr. Wayne Carver and Scarlett Lewis, all stated they viewed the June 26, 2017 video. [CR 1711; 1716; 1719]. Appellees’ petition identifies the specific InfoWars.com URL on which the June 26, 2017 video was published. [CR 8].
The June 26, 2017 video was edited from a much longer video published on June 25, 2017. The edited video was then published to the InfoWars website and to YouTube as separate content, with a separate title, and reaching separate audiences. In his show on July 20, even Mr. Jones referred to the title of the June 26, 2017 video rather than its June 25 predecessor, stating, “We're going to play the evil video: ‘Zero Hedge Discovers Anomaly in Alex Jones Hit Piece.’” [CR 395]. The “single publication rule” does not prevent a lawsuit based on the new edited video because “a plaintiff is not limited to a single cause of action in the event the same information appears in separate printings of the same publication or in different publications…The single publication rule applies strictly to multiple copies of a libelous article published as part of a single printing.” Mayfield v. Fullhart, 444 S.W.3d 222, 227 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The trial court ordered InfoWars to respond to numerous discovery requests about the June 26, 2017 video, but InfoWars disobeyed the court and refused to answer. [CR 3101].
Mr. Zipp’s affidavit described the origin of the June 26, 2017 InfoWars video: After Mr. Heslin condemned InfoWars’ false statements about Sandy Hook during an interview with Megyn Kelly on NBC TV, InfoWars produced a video in which it claimed that Mr. Heslin’s statements about his last moments with his child were a lie. InfoWars host Owen Shroyer began the video by citing an article from an anonymous blog called “Zero Hedge.” The video shows that the anonymous blog In his interview, Mr. Heslin told Ms. Kelly that he buried his son, held his body, and saw his fatal injury. Regarding that interview, Mr. Shroyer stated the following in the June 26, 2017 video:
The statement he made, fact checkers on this have said cannot be accurate. He’s claiming that he held his son and saw the bullet hole in his head. That is his claim. Now, according to a timeline of events and a coroner’s testimony, that is not possible. And so one must look at Megyn Kelly and say, Megyn, I think it's time for you to explain this contradiction in the narrative because this is only going to fuel the conspiracy theory that you're trying to put out, in fact. So -- and here's the thing too, you would remember -- let me see how long these clips are. You would remember if you held your dead kid in your hands with a bullet hole. That’s not something that you would just misspeak on. So let's roll the clip first, Neil Heslin telling Megyn Kelly of his experience with his kid. [CR 1548-49].
Mr. Shroyer then played a clip from the Mr. Heslin’s interview in which he stated, “I lost my son. I buried my son. I held my son with a bullet hole through his head.” [CR 1527]. After playing the clip, Mr. Shroyer stated:
So making a pretty extreme claim that would be a very thing, vivid in your memory, holding his dead child. Now, here is an account from the coroner that does not corroborate with that narrative. [CR 1549].
Mr. Shroyer then played a short clip from a news conference with Dr. Wayne Carver, the medical examiner at Sandy Hook. In the clip, Dr. Carver post had been “shared” only three times before it was featured on InfoWars’ video. InfoWars took this obscure blog post that almost nobody in the world had seen and used it to smear Mr. Heslin. [CR 1527]. stated that “we did not bring the bodies and the families into contact. We took pictures of them.” [CR 435]. Dr. Carver stated in the clip that “we felt it would be best to do it this way.” [Id]. Mr. Shroyer also showed a dishonestly edited clip of an interview with parents Chris and Lynn McConnel in which Anderson Cooper states, “It’s got to be hard not to have been able to actually see her.” [Id]. As will be shown below, these video clips were edited and intentionally presented in a deceptive fashion.
At the end of the video, Mr. Shroyer stated, “Will there be a clarification from Heslin or Megyn Kelly? I wouldn’t hold your breath. [Laugh]. So now they’re fueling the conspiracy theory claims. Unbelievable.” [CR 1549]. Appellees sued Mr. Shroyer because he made the statements, and Mr. Jones is also liable because on July 20, 2017, during an episode of The Alex Jones Show, he republished Mr. Shroyer’s defamatory segment in full (“And so I'm going to air this again, and I'm going to challenge that it doesn't violate, uh, the rules.”). [CR 2416]. Free Speech Systems, LLC employs Mr. Shroyer as a reporter. [CR 59]. InfoWars, LLC operates the InfoWars.com website, where the challenged statements were also published. [CR 1725]. InfoWars, LLC is also responsible for the sale of dietary supplements sold during InfoWars programming and through the InfoWars.com website. [CR 1812].
Alex Jones LOST. Here is from the Texas 3rd court of appeals decision
O P I N I O N Appellants Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer seek to appeal what they assert is a denial by operation of law of their motion to dismiss the claims asserted against them by Appellee Neil Heslin. Because we determine there is no order from which to appeal, we dismiss the appeal for want of jurisdiction. BACKGROUND Heslin’s son was killed in the Sandy Hook Elementary School shooting in December 2012. Heslin sued Appellants for defamation and defamation per se related to Appellants’ statements disputing Heslin’s statement, “I lost my son. I buried my son. I held my son with a bullet hole through his head.” On July 13, 2018, Appellants filed a motion to dismiss Heslin’s claims under the Texas Citizens Participation Act (TCPA). In August 2018, Heslin filed a “Motion for Sanctions for Intentional Destruction of Evidence” and a motion for expedited discovery. Heslin also responded to the motion to dismiss. On August 30, 2018, the district court held a hearing to consider the pending motions. At that hearing, the court determined that it would grant limited discovery relevant to the motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 27.006(b). The following day, the court signed the order granting the motion for expedited discovery. That order states:
As authorized by Tex. Civ. Prac. & Rem. Code Sec. 27.004, the court will “extend the hearing date to allow discovery.” Oral hearing on Defendants’ Motion to Dismiss under the Texas Citizen’s Participation Act is recessed and extended until November 1, 2018, which is less than 120 days after the service of the motion under Tex. Civ. Prac. & Rem. Code Sec. 27.003.
Appellants’ responses to Heslin’s discovery were due on October 1, 2018, but Appellants did not respond. On October 2, Heslin filed a motion for contempt. That same day, Appellants, taking the position that their motion to dismiss had been overruled by operation of law, filed a notice of appeal. See id. § 27.008(a) (providing for denial by operation of law if a trial court does not rule within the time limits prescribed by the TCPA). Although the district court set an extended hearing on the motion to dismiss for November 1, 2018, that hearing could not proceed while this appeal was pending. See id. 51.014(b) (providing that an interlocutory appeal of a denial of a TCPA motion to dismiss “stays all other proceedings in the trial court pending resolution of that appeal”).
DISCUSSION The parties present several arguments relating to the merits of Appellants’ motion to dismiss. However, the threshold question of whether Appellants’ motion to dismiss was overruled by operation of law is dispositive of this interlocutory appeal. We therefore address only that issue. See Tex. R. App. P. 47.1 (requiring an “opinion that is as brief as practicable” that addresses issues “necessary to final disposition of the appeal”).
The TCPA generally provides that a motion to dismiss is overruled by operation of law if the trial court does not rule on the motion within 30 days following the date of the hearing on the motion, Tex. Civ. Prac. & Rem. Code §§ 27.005(a), .008(c), but the Act also allows the district court to “extend the hearing date to allow discovery,” so long as the hearing occurs no more than “120 days after the service of the [TCPA motion to dismiss],” id. § 27.004(c). Prior to section 27.004(c)’s enactment, the Dallas Court of Appeals considered a case in which the trial court began a hearing on a TCPA motion to dismiss and in the course of the hearing determined that the nonmovant was entitled to discovery. Avila v. Larrea, 394 S.W.3d 646, 652-53, 656 (Tex. App.—Dallas 2012, pet. denied). The Dallas court determined that the statute provided no mechanism for extending the 30-day limit to rule on the motion once the trial court commenced a hearing on the motion to dismiss, even if the trial court granted discovery. Id. However, “the Legislature amended the TCPA after the Dallas Court decided Avila, thereby allowing trial courts to grant continuances so that parties could conduct limited discovery on issues raised by motions to dismiss under the TCPA.” Fairlawn Assets LLC v. Booker, No. 09-19-00208-CV, 2019 Tex. App. LEXIS 6384, at *3 (Tex. App.—Beaumont July 25, 2019, no pet. h.) (mem. op.); see Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 1, sec. 27.004(c), 2013 Tex. Gen. Laws 2501, 2501 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.004(c)). We conclude that section 27.004(c)’s language allowing the trial court to “extend the hearing date” permitted the district court in this case to recess the hearing for the purpose of allowing discovery and to resume that hearing at any point within 120 days from “the service of the motion [to dismiss].” Tex. Civ. Prac. & Rem. Code Ann. § 27.004(c). Thus, the 30-day timeline for ruling on the motion would have been reset in accordance with the extended hearing date. See In re Bandin, 556 S.W.3d 891, 895 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) (Busby, J., concurring) (noting, in a case where the trial court held a hearing on a motion to dismiss, then ordered discovery, that “the trial court could also choose to ‘extend the hearing date’ under section 27.004(c) to allow completion of the ordered discovery and then hold a new hearing with the benefit of that discovery”). As a result, the motion to dismiss was not overruled by operation of law, but instead remained pending in the district court when Appellants filed the notice of appeal, which stayed the district court’s proceedings. See Tex. Civ. Prac. & Rem. Code § 51.014(b). Because the motion remained pending in the district court, there is no order that could support an interlocutory appeal, and we must dismiss this appeal. See id. § 51.014(a)(12) (allowing interlocutory appeal from a denial of a motion to dismiss under the TCPA).
CONCLUSION We agree with Heslin that the district court has not yet ruled on Appellants’ motion to dismiss, nor has the motion been overruled by operation of law. Accordingly, we dismiss the appeal for lack of jurisdiction. __________________________________________ Gisela D. Triana, Justice Before Chief Justice Rose, Justices Triana and Kelly Dismissed for Want of Jurisdiction Filed: August 30, 2019
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