The Lawsuit That Could Freeze Speech Against Billionaires
Beto O'Rourke and Texas Gov. Greg Abbott. (AP Photo)
A gas mogul’s case against Beto O’Rourke could deter candidates from ever talking about money in politics.
by Jordan Uhl
Since Elon Musk took over Twitter, the national debate over free speech has narrowly focused on tech companies’ social media censorship. But offline in a Texas court, a lawsuit could send an intimidating message to political candidates across the country: If you suggest billionaire donors buy political influence, you could face severe punishment.
At issue is a suit brought by Texas oil and gas billionaire Kelcy Warren. It accuses former Democratic gubernatorial candidate Beto O’Rourke of defamation for slamming Warren’s $1 million donation to Texas Gov. Greg Abbott (R) in 2021.
Warren’s lawyers have asserted the natural gas tycoon experienced “mental anguish” from comments, ads, and social media posts in which O’Rourke’s campaign suggested the money was a reward for Abbott going easy on Warren’s pipeline company, Energy Transfer Partners, before and after a deadly storm that shut down power to more than four million people.
Warren delivered the cash to Abbott’s campaign two weeks after the governor signed legislation that included a loophole allowing natural gas companies like Energy Transfer to opt out of energy infrastructure winterization mandates.
“Beto O’Rourke told millions of his followers that [Warren] engaged in bribery, corruption, and extortion and that he profited from the death of his fellow Texans simply because Mr. Warren gave a perfectly legal campaign contribution to the candidate of his choosing, Gov. Abbott,” Warren’s attorney Dean Pamphilis argued during a December hearing asking to dismiss the case. “When you look at the comments that his followers put in on his tweets, they believe him. They believe that Mr. Warren is a criminal that is engaged in profit over lives of Texans.”
The case comes less than four years after Abbott signed legislation that opponents say weakened a state law designed to prevent wealthy and corporate plaintiffs from using defamation lawsuits to silence their critics.
If the Texas court rules for Warren, O’Rourke could be forced to cough up $1 million. In the process, the case could pioneer a replicable model for wealthy political donors to deter and punish speech about money in politics.
How The Wealthy Try To Silence Their Opponents In Court
Free speech and first amendment advocates have criticized Warren’s suit as an attempt to use the court system to try to intimidate and silence critics, regardless of the case’s lack of merit.
These types of lawsuits are typically referred to as strategic lawsuits against public participation, or “SLAPP” suits. In recent years, some billionaires have sought to use SLAPP suits to intimidate critics.
In 2017, John Oliver and HBO were sued by now late West Virginia coal tycoon Bob Murray over a segment on Last Week Tonight about the coal industry and Murray’s company’s business practices, specifically focusing on a disaster in one of his mines that killed nine workers and Murray’s proclivity for frivolous litigation. The case was dismissed in 2018 and the late-night host celebrated with a SLAPP-themed episode in 2019.
Mother Jones also prevailed in a SLAPP suit in 2015 filed by Frank VanderSloot, a Republican donor and CEO, over a 2012 article that described his company, Melaleuca, as a pyramid scheme. In 2019, former Donald Trump spokesperson Jason Miller unsuccessfully sued G/O Media, formerly Gizmodo Media Group, over a report published in the now-defunct outlet Splinter that detailed allegations made by Miller’s ex-girlfriend A.J. Delgado in court filings from their fight for custody over their son.
Outcomes in these lawsuits are not always so favorable. Most notably, Terry Bollea, otherwise known as Hulk Hogan, was successful in 2016 in his lawsuit against Gawker, after the news site published a video of him having sex with his best friend’s wife. Bollea’s legal challenge was funded by Silicon Valley billionaire Peter Thiel, with many speculating it was retaliation for the site outing him as gay in 2007. Gawker couldn’t cover the $140 million awarded by the jury, so the site was forced to declare bankruptcy and shut down.
Most states, including Texas, have “anti-SLAPP” laws designed to stymie these types of frivolous lawsuits. However, in 2019, Abbott signed a law that scaled back his state’s anti-SLAPP law, limiting the ways in which a defendant could seek to have a case dismissed.
$1 Million Donation Followed Special Legislative Loophole
Warren’s lawsuit presents an escalation of the legal tactic to deter critical speech, since it goes beyond speech from media organizations and targets the language used by political candidates and how they discuss the role of money in politics during elections.