In Vaughn v. Witzke, Plaintiff Eric Vaughn sued right-wing political activist Lauren Witzke for defamation in Texas. The gist is that Vaughn and his husband had twins via surrogacy and posted about it on social media. Witzke saw Vaughn’s video and made disparaging remarks referencing pedophilia and human trafficking. Vaughn now alleges that Witzke’s remarks are defamatory. He wants up to $75,000 in damages.
You can read my introduction to the case here: Surrogacy Defamation Case: Vaughn v. Witzke.
In this case, I will provide an overview of the causes of action and potential defenses. I will also discuss my opinion on the claims so far. But I mainly want to hear from you. Take the poll on what you think should happen and share your thoughts in the comments.
Brief Primer on Defamation
In Vaughn’s Complaint, he alleges that Witzke defamed him by “asserting as fact that Plaintiff engaged in grotesque sexual activity and conduct considered a crime.” The crimes which he references in his complaint are “Indecency with a Child” and “Trafficking of Persons.”
What is Defamation?
Defamation is a common law tort. It is the publication of a false statement about another with a requisite degree of fault. Texas courts have recognized different types of defamation.
The first is “textual defamation.” This is defamation that arises from the statement’s text without reference to any extrinsic evidence. As an example, say I have a very sober neighbor named John who is looking for a job. If I write to the neighborhood, “John would be an unreliable employee because he is a drug addict,” that would be textual defamation. You do not need to look beyond the actual text itself. The meaning of the statement is clear by itself without looking for context.
The second type is “extrinsic defamation.” This type of defamation requires the reader to look beyond the published statement to extrinsic circumstances. A case under this category would apply innuendo or require a review of other facts and circumstances to understand the defamatory context. An example might be publishing that “My neighbor two doors to the east of me is a drug addict.” That would require the reader to know extrinsic information about where you live.
A third type of defamation is called Defamation-by-implication and is a subset of textual defamation. This form of defamation recognizes that while there may not be an express defamatory statement, the gist of a publication as a whole may have a defamatory implication. An example might be if I post an article about drug addiction and tag my neighbor John in the comments of the post. The implication may be that I am alleging John is a drug addict.
The “Requisite Degree of Fault”
The “Requisite Degree of Fault” changes based on the notoriety of the person about which the statement is made. If the Plaintiff is a public figure, he must prove negligence and actual malice to prevail in a defamation case. If the Plaintiff is not a public figure, he need only show negligence and does not need to prove the statement was made with actual malice.
Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614 (Tex. 2018)
Who Decides if it is Defamation?
A claim presents either questions of law, questions of fact, or a mix of both. The judge will always decide on questions of law. The jury decides questions of fact (unless the case is a bench trial where the judge also determines the facts).
In Vaughn’s case, he has requested a jury, meaning he wants questions of fact to be determined by a jury.
Under Texas law, however, whether a statement is defamatory is first a question of law–meaning the judge decides. A jury will only decide if a judge first determines that a statement may or may not be defamatory.
Defenses to Defamation
Showing the statement is either true or substantially true is a defense to a defamation claim. Statements that are not verifiable as false cannot constitute defamation.
A statement also “does not give rise to liability if the ‘entire context in which it was made’ discloses that it is merely an opinion masquerading as fact.” An opinion is a statement that is not factually verifiable.
Are Witzke’s Statements Defamatory?
Vaughn claims he was defamed in two ways. First, by allegations that Witzke stated he is guilty of the crime of indecency with a child. Second, by allegations that he was guilty of the crime of human trafficking.
Here are Witzke’s statements at issue, all made via Twitter:
- Under a post of Vaughn’s video where he holds the twins for the first time, she writes, “A new fetish with pedophiles consists of robbing babies from their mothers straight out of the womb. This is human trafficking and would be illegal in a sane society.”
- First of all, You’re not a real Christian if farming infants off to gay men sits well with you. Second of all, they’re public figures and therefore open to criticism. I’m [sic] fact, i hope they sue me too. I’d LOVE to bring national attention to issue of gay pedophiles using the means of surrogacy to have unlimited access to defenseless children.
- She posts a link to an article and writes: “*fast forward 4 years*.” The article then states: “Adoptive gay couple charged with sodomizing their adopted sons also ‘pimped them out to local men and sent out videos of them raping the boys’: Full horror of mysteriously wealthy couple’s sordid lives revealed in jay-dropping court docs.”
In my mind, I do not get from these tweets that Witzke is calling Vaughn a pedophile and human trafficker as much as she is hijacking their video to express her general opinion that surrogacy should not be available to gay couples. Witzke’s statements are not expressly defamatory because if you did not look at them in context you would have no idea that they had anything to do with Vaughn specifically.
In the overall context, everything she is saying is speaking to a broader issue of “farming off infants to gay men.” She provides a news article supporting her opinion. Her initial reference to human trafficking concedes that surrogacy for gay couples is not illegal in our society (which is apparently not sane to her). Whether our society should allow surrogacy for gay men is not verifiable because it is just a moral or political opinion.
While I think Vaughn may be justified in feeling offended by Witzke’s conduct, I’m not convinced that Witzke’s statements rise to the level of being defamatory. Certainly, I think Witzke’s delivery of her opinion is poor, but I think the overall context demonstrates that she is speaking to a larger political issue and not about Vaughn’s character individually.
But I’m happy I’m not the judge because, frankly, I think this could go either way.
Poll: You be the judge…
Based on what you’ve seen so far, do you think Witzke should be held liable for defamation? Take the poll!
Note: Texas case law used: Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614 (Tex. 2018)
