Ep. 397: Oral Arguments Involving Southwestern Seminary and Paige Patterson The TX Supreme Court will interpret Texas law for Fifth Circuit Court of Appeals.

The Supreme Court of Texas heard oral arguments this week related to the potentially precedent-setting case of plaintiff Jane Roe suing Southwestern Baptist Seminary and its former President Paige Patterson for defamation related to a sexual assault she reportedly suffered in 2015.

Roe claims Paige Patterson provided false and defamatory information about her in an attempt to “defend [his] reputation” that were then produced in three separate publications.

The case was filed in federal district court, but on appeal the U.S. Court of Appeals for the Fifth Circuit certified two questions about Texas state law for the state’s highest civil appellate court to answer.

The questions facing the Texas Supreme Court are:

1. Can a person who supplies defamatory material for publication be liable for defamation?
2. If so, can a defamation plaintiff survive summary judgment by presenting evidence that a defendant was involved in preparing a defamatory publication, without identifying any specific statements made by the defendant?

Roe was a student at Southwestern in 2015 when she claims to have reported an attack and rape on campus to then-President Paige Patterson. Issues about how Patterson’s comments about women and his handling of sexual assault charges eventually led to his termination as the seminary president, the court documents describe.

The claims of defamation arose out of a series of three publications — the “Untold Truth” article, a “Release of Facts” by Patterson’s attorney Shelby Sharpe, and a donor letter supporting Patterson’s reinstatement — that were designed to “control the narrative and defend Patterson’s reputation.” Allegedly, Patterson provided defamatory information about Roe that was included in the publications.

Roe says that statements claiming she lied about her rape, engaged in sexual activities in seminary buildings, and provided nude photos to the man who raped her are all false and defamatory.

The federal district court granted summary judgment to the defendants on the defamation claims. The Fifth Circuit accepted the case for review on appeal and posed the questions about state law to the Texas Supreme Court.

During the oral arguments, the plaintiff’s attorney argued for an affirmative answer to the first question concerning the liability of one supplying defamatory material for publication. Attorney Sheila Haddock said the question answers itself — that supplying or communicating defamatory material is equivalent to publishing it.

She went on to explain, in answer to a justice’s question, that a person is also liable for defamation if they could reasonably expect that his or her statements would be repeated or published.

Some of the justices pushed back on that argument, seeking to determine the limits of what would be reasonably foreseeable.

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The plaintiff also argued that they need not provide a “specific statement” made by the defendant, such as a word-for-word quotation or tape recording, but could provide evidence identifying the “substance and meaning” of the defamatory statement by the defendant.

In response to the reasonable foreseeability issue raised by the plaintiff, the defendant’s attorney Travis Jones argued that a person should only be liable for defamation if he is involved with or exercises some control over the publication of the defamatory material. He argued that even financially contributing to the publication of defamatory material might not be enough to make a person liable.

Jones also argued that the court should balance free speech concerns with the reputational impact of defamation upon the plaintiff. He encouraged the court to adopt a standard that the person being held liable must intend, authorize, or know the republication of the defamatory material would occur.

He also claimed the plaintiff did not present evidence that Patterson or agents under his control made defamatory statements that were then published.

In response to Jones’ claim that Roe did not present evidence that Patterson’s agents had participated in providing defamatory material, Haddock noted that Patterson’s chief of staff Scott Colter and his attorney were involved in writing two of the three defamatory publications.

She also pointed to a string of emails within two weeks of the donor letter’s publication that showed Colter’s engagement in developing the content of the letter.

The Texas Supreme Court will send its opinion of these two questions to the Fifth Circuit for use in its review of the underlying federal case. The Texas Supreme Court will not decide the case on its merits.