Court Must Now Decide If T. Boone Pickens’ Case Threatens Son’s First Amendment Rights

By Caleb Melby, Forbes Staff
Originally posted 4.29.13

Earlier this month, I wrote about the vicious court battle taking place in Dallas between billionaire corporate raider T. Boone Pickens and his son Michael, who, through his blog, alleges that his oil billionaire father emotionally abused him, which he claims led him to become a drug user. Boone alleges that Michael is a cyberbully and has sued him for defamation, libel, invasion of privacy, harmful access by computer, and extortion. For more background on the case, you can read my earlier report here.

There is much evidence in Boone’s favor, including interviews of individuals not involved in the case, conducted by FORBES, that back his version of events. But Michael has one defense that just might stick.

A 2011 law called the Texas Citizens Participation Act is designed to protect Texans’ right to free speech, assembly and association from frivolous litigation, or Strategic Litigation Against Public Participation (SLAPP) suits.

Two experts FORBES spoke with, Arif Panju of the Freedom of Information Foundation of Texas and Alicia Wagner Calzada of law firm Haynes Boone, both proponents of the statute, say that the spirit of the law is designed to protect citizens and journalists with less cash from being bullied by interests with more cash.

Michael’s attorney Collin Porterfield pointed to the statute in his motion to dismiss the case. The court is scheduled to hear arguments pertaining to that motion on May 17. Porterfield suspects that the family’s filing of the case, which he says came without any prior warning communicated to Michael, was designed to squelch Michael’s speech immediately, with the assumption that he wouldn’t be able to afford an attorney.

But while the TCPA is designed to protect citizens from costly, frivolous lawsuits, the statute makes an exception for “meritorious lawsuits for demonstrable injury.” That’s what Michael’s family is trying to prove, having submitted to the court copies of Michael’s blog posts and Twitter feed. They have until the May 17 date to demonstrate that the case has merit. If they fail in this regard, the case will be dismissed.

“The burden is on the plaintiff to prove the allegation is false,” Calzada tells FORBES. “There has to be some ability of the plaintiff to prove that the information reported is untrue in order for the defamation claim to stand.” Porterfield says that he sees no way that the family will be able to meet this standard.

“They have to establish that the overall fabric of his story is false,” Porterfield says. “Picking out a sentence here or there isn’t going to get them anywhere. I don’t think there is any chance that they can do that.”

On April 24, the family filed a motion for a limited deposition of Michael to review the blog, email and Twitter correspondences and the various allegations he has brought against his family. Given that the allegations stretch back more than half a century, if the discovery motion is granted, it will be interesting to see how both sides attempt to prove the veracity of their version of history. The court will hear arguments on May 1 to determine whether or not to grant Boone and his family this deposition.

In his motion to dismiss the case filed on March 29, Michael says his family’s case threatens his First Amendment rights. Drug abuse is a matter of “public concern” he argues, and family abuse is directly linked to that. Further, he points out, Boone is a “public figure” (easy enough to grant, given Boone’s frequent media appearances, often in relation to energy policy).

“[…]Instead of exhibiting any semblance of self-reflection, in a grand exhibition of hubris, ego-centrism and paranoia, the Plaintiffs sued to enlist state action (i.e., the Court) to shut Mike up,” the motion reads. “Better to sweep one’s dirt under the rug rather than engage in the hard work of cleaning it up.”

As has been the case throughout this legal battle, the family disagrees. “It is not the purpose of the Act to permit persons publishing false, harmful, extortionate and destructive statements to hide behind an assertion of the First Amendment,” wrote Leland de la Garza, the family’s attorney, in an April 10 response to Michael’s motion for dismissal. “If all matters touching upon the human condition are matters of ‘public concern,’” the response continues, “then nearly every matter on which a person speaks would be subject to this statute.”

“We will not discuss aspects of our legal case or strategies,” said Jay Rosser, a spokesman for the plaintiffs, in a written statement that largely echoes a previous one from weeks earlier. “[…] Our concerns over [Michael’s] physical and mental health have only increased in recent weeks because of his escalating false, malicious and defamatory blog postings. We’re grateful the public sees this for what it is, and for the outpouring of sympathy the family has received.”