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Appellants' Brief ACCEPTED 03-19-00811-CV 40040716 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/16/2020 10:03 PM JEFFREY D. KYLE CLERK NO. 03-19-00811-CV FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS, AUSTIN, TEXAS USTIN EXAS A , T 1/16/2020 10:03:51 PM JEFFREY D. KYLE Clerk ALEX E. JONES, INFOWARS, LLC, FREE SPEECH SYSTEMS, LLC, AND OWEN SHROYER, Appellants, v. NEIL HESLIN, Appellee On Appeal from the 53rd District Court, Travis County, Texas Trial Court Cause No. D-1-GN-18-001835 APPELLANTS’ BRIEF T. Wade Jefferies David J. Sacks THE LAW FIRM OF T. WADE JEFFERIES SACKS LAW FIRM State Bar No. 00790962 State Bar No. 17505700 401 Congress Ave., Suite 1540 2323 S. Shepherd, Suite 825 Austin, TX 78701 Houston, TX 77019 Email: [email protected] Email: [email protected] Telephone: (512) 201-2727 Telephone: (713) 863-8400 Facsimile: (512) 687-3499 Facsimile: (713) 863-0502 Counsel for Appellants Lead Counsel for Appellants ORAL ARGUMENT REQUESTED NO. 03-19-00811-CV IDENTITY OF PARTIES AND COUNSEL 1. Appellants: Counsel for Appellants: Alex E. Jones, David J. Sacks Infowars, LLC, and State Bar No. 17505700 Free Speech Systems, LLC SACKS LAW FIRM Owen Shroyer 2323 S. Shepherd Dr., Suite 825 Houston, Texas 77019 [email protected] T. Wade Jefferies State Bar No. 00790962 THE LAW FIRM OF T. WADE JEFFERIES 401 Congress Ave., Suite 1540 Austin, TX 78701 [email protected] Trial Court: Michael Burnett State Bar No. 00790399 BURNETT TURNER 6034 W. Courtyard Drive, Suite 140 Austin, Texas 78730 [email protected] Mark C. Enoch State Bar No. 06630360 Mark C. Enoch, PC 14801 Quorum Drive, Suite 500 Dallas, Texas 75254-1449 [email protected] 2. Appellee: On Appeal: Neil Heslin Mark D. Bankston State Bar No. 24071066 Kaster Lynch Farrar & Ball 1010 Lamar, Suite 1600 Houston, Texas 77002 [email protected] APPELLANTS’ BRIEF Page ii NO. 03-19-00811-CV At Trial: Mark D. Bankston State Bar No. 24071066 Kaster Lynch Farrar & Ball 1010 Lamar, Suite 1600 Houston, Texas 77002 [email protected] Kyle W. Farrar State Bar No. 24034828 Kaster Lynch Farrar & Ball 1010 Lamar, Suite 1600 Houston, Texas 77002 [email protected] William R. Ogden State Bar No. 24073531 Kaster Lynch Farrar & Ball 1010 Lamar, Suite 1600 Houston, Texas 77002 [email protected] APPELLANTS’ BRIEF Page iii NO. 03-19-00811-CV TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ........................................................... ii TABLE OF CONTENTS ..........................................................................................iv INDEX OF AUTHORITIES .....................................................................................ix STATEMENT OF THE CASE .............................................................................. xiii ISSUES PRESENTED ............................................................................................xiv INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS ........................................................................................ 6 A. June 25, 2017 ZeroHedge Publication Titled “Megyn Kelly Fails To Fact Check Sandy Hook Father’s Contradictory Claim in Alex Jones Hit Piece” ............................................................. 8 B. June 25, 2017, Owen Shroyer Broadcast, Commenting on the June 25, 2017, ZeroHedge Publication ......................................... 10 C. July 20, 2017, Alex Jones Broadcast, Commenting on the Censor of the Owen Shroyer, June 25, 2017, Broadcast..................... 13 D. April 16, 2018, Appellee Heslin Filed this Lawsuit ........................... 16 E. April 19, 2018, Appellee Heslin Authorized the Republication of the Allegedly Defamatory Broadcasts Nationally ............................................................................................ 16 SUMMARY OF ARGUMENT ............................................................................... 17 ARGUMENT ........................................................................................................... 19 I. THE TRIAL COURT ERRED IN DENYING APPELLANTS’ TCPA MOTION TO DISMISS BECAUSE APPELLANTS ESTABLISHED ALL THREE STATUTORY REQUIREMENTS MANDATING DISMISSAL ........................................................................ 19 A. The Purpose of TCPA is to Safeguard Constitutional Rights ............. 19 B. The TCPA Procedure and Standard of Review................................... 20 APPELLANTS’ BRIEF Page iv NO. 03-19-00811-CV C. Appellee Heslin’s Entire Lawsuit and Each of his Claims are Based on, Relate to, and are in Response to Appellants’ Exercise of the Right of Free Speech and the Right to Petition ................................................................................................. 22 D. Appellee Heslin Failed to Show, by Clear-and-Specific- Evidence, Each Element of Each of his Defamation Claims Against Each Appellant ....................................................................... 25 1. Defamation per quod and defamation per se defined ...............26 2. The elements of a defamation claim .........................................26 3. There are no defamatory statements in the two broadcasts from which Appellee complains. ............................27 a. TCPA Evidence standard applied to defamation ..............27 b. There was no “June 26, 2017” broadcast ............................30 c. The June 25, 2017 broadcast is not defamatory ................31 d. The July 20, 2017 broadcast is not defamatory .................35 4. There is no clear-and-specific-evidence Appellants had actual knowledge of falsity or were reckless as to truth. ..........................................................................................37 a. Appellee is a limited purpose public figure ....................37 b. Appellee failed to show clear-and- specific, and clear-and- convincing, evidence of malice -- knowing falsity or reckless disregard for the truth .............................................................................................. 40 5. Appellee Heslin failed to show any clear-and-specific- evidence that any statement by Appellants proximately caused any damages..............................................42 a. There is no unambiguous, sure, and free-from- doubt evidence of defamation per se ................................... 42 APPELLANTS’ BRIEF Page v NO. 03-19-00811-CV b. There is no unambiguous, sure and free from doubt evidence of defamation per quod damages ...................................................................................... 44 E. Appellants Proved Their Affirmative Defenses, which are Complete Bars to the Defamation Claims ........................................... 46 1. The statute of limitations for defamation claims is one year ............................................................................................47 2. Appellee may not recover exemplary damages as a matter of law because he failed to comply with Tex. Civ. Prac. & Rem Code §73.055(c) ..........................................48 3. Appellants’ statements are protected expressions of opinion by the First Amendment of the United States Constitution and the Texas Constitution ...................................49 4. InfoWars is not liable based on undisputed facts .....................50 5. Appellee’s defamation claims are barred under the substantial truth doctrine, Tex. Civ. Prac. & Rem. Code §73.005 ............................................................................50 6. Appellee’s defamation claims are barred under the fair comment privilege, Tex. Civ. Prac. & Rem. Code §73.002 ......................................................................................54 II. THE TRIAL COURT’S RULING VIOLATES APPELLANTS’ FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION .......................................................................... 55 III. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN THE FOLLOWING OBJECTIONS APPELLANTS’ MADE TO APPELLEE HESLIN’S PROFERRED AFFIDAVITS ................................ 59 A. Zipp affidavit (CR:1508-1530, exhibits 1531-1630, Appellants’ objections 1907-1938) .....................................................59 B. Binkowski affidavit (CR:1658-1669, Appellants’ objections 1939-1971) ..........................................................................................61 APPELLANTS’ BRIEF Page vi NO. 03-19-00811-CV C. Heslin affidavit (CR:1693-1697, Appellants’ objections 1971-1974) ..........................................................................................62 D. Carver affidavit (CR:1698-1699; Appellants’ objections CR:1974-1976) ....................................................................................63 E. Lewis affidavit (CR:1702-1704; Appellants’ objections CR:1976-1977) ....................................................................................64 F. Clayton affidavit (CR:1705-1707; Appellants’ objections CR:1977-1979) ....................................................................................65 G. Turnini affidavit (CR:1708-1709 and exhibits CR:1710- 1755, Appellants’ objections CR:1979) ..............................................65 IV. THE TRIAL COURT ERRED IN FAILING TO AWARD APPELLANTS’ ATTORNEYS’ FEES AND SANCTIONS AS MANDATED BY THE TCPA. IF ANY OF THE CLAIMS BROUGHT AGAINST ANY OF THE APPELLANTS ARE DISMISSED, THE AWARD OF ATTORNEYS’ FEES, SANCTIONS AND COSTS IS MANDATORY. ......................................... 66 CONCLUSION AND RELIEF
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