In 2015, at the start of her second year as a student at Southwestern Baptist Theological Seminary, Jane Roe reported to the seminary's president, Paige Patterson, that a fellow student and employee, John Doe, had sexually assaulted her at gunpoint on several occasions.¹ Patterson notified Fort Worth police, and the seminary expelled Doe for violating its firearms policy; weeks later Patterson emailed a staff member that he planned to meet Roe to "break her down," and at the meeting he confronted her with Doe's account that the relationship was consensual and that he had nude photographs of her.² Nearly three years later the seminary's board removed Patterson, citing in part his treatment of Roe, and a group of donors seeking his reinstatement wrote to the board that Roe's rape allegations were false, that she had engaged in consensual activity and texted nude photographs, and that she had made false statements to police; they sent copies to more than a hundred people.³ Patterson's chief of staff, Scott Colter, supplied the recipient list and helped the drafters in other ways, including suggesting signatories, passing the draft to Patterson and his lawyer, and verifying and providing "additional info about the 2015 event".⁴ The Court noted that the record here is not stipulated and that it answers legal questions without resolving the appeal.⁵

Roe sued the seminary and Patterson for defamation based on the donor letter.¹ The federal district court granted summary judgment, concluding that Colter had not acted as Patterson's agent in helping draft the letter.² The U.S. Court of Appeals for the Fifth Circuit held that the summary-judgment evidence created a fact issue on agency and, on May 3, 2024, certified two questions to this Court.³ The Court accepted them, heard argument on September 11, 2024, and answered on February 14, 2025.⁴

Certified questions from the United States Court of Appeals for the Fifth Circuit; argued September 11, 2024, and answered February 14, 2025.⁵

The Fifth Circuit certified two questions:

1. whether a person who supplies defamatory material to another for publication can be liable for defamation
2. if so, whether a defamation plaintiff can survive summary judgment by presenting evidence that a defendant was involved in preparing a defamatory publication, without identifying any specific statements made by the defendant¹

The Court answers certified questions of law, and in doing so examines the evidence in the light most favorable to the non-moving party, indulging reasonable inferences and resolving doubts against the party seeking summary judgment.¹

Question 1: liability for supplying defamatory material for publication.

Appellant (Roe): Supplying defamatory material is communicating it, and communicating is publishing, so one who supplies it has committed defamation; one who directs another to publish is liable too, and one who can reasonably expect his defamatory statements to be repeated is responsible for the repetition.¹ In reply she argues that Texas courts follow the national trend of holding the original defamer liable for reasonably foreseeable republication, and that the appellees' narrower rule would reject long-established law.²

Appellees (Patterson and the seminary): The answer should be yes only if the person supplying the information intends or authorizes the republication or knows it will occur, because a broader foreseeability rule is inconsistent with defamation as an intentional tort and would create unfettered liability, particularly for material republished on the internet.³ The seminary joins Patterson's legal analysis and notes that Roe makes no arguments specific to it.⁴

Question 2: summary judgment without identifying specific statements.

Appellant (Roe): All persons involved in preparing, publishing, or circulating a libel are equally responsible, and one need not be the author to be liable, so a plaintiff need not prove a precise statement if the evidence shows the defendant was the source of the defamatory statements.⁵

Appellees (Patterson and the seminary): A plaintiff must show that the defendant made particular false and defamatory statements, specifying their substance and meaning if oral, that the material the defendant supplied was actually included in the publication, and that the defendant authorized or endorsed the publication.⁶

Not applicable. This was a pair of certified questions from the Fifth Circuit, which the Court accepted.¹

None. The docket shows no amicus filings.

Holding

First, a person who supplies defamatory material to another for publication may be liable for defamation if the person intends or knows that the material will be published. Second, a plaintiff who has identified a defamatory statement may survive summary judgment without identifying the specific statements the defendant made in supplying it if the direct or circumstantial evidence is legally sufficient to find that the defendant was the source of the defamatory content.¹

Reasoning

First question. The answer is yes, and the parties agree; they disagree about whether the person must intend or know that the material will be published or merely foresee that it could be.² Publication occurs when defamatory statements are communicated to a third person who understands their defamatory import, and the Restatement describes the intent to publish as acting for the purpose of communicating or with knowledge that it is substantially certain to be communicated.³ The original defamer may also be liable for republication, but not without proof of an initial intentional or knowing publication; fault is an important element of defamation liability.⁴ Because Roe seeks to hold Patterson directly liable, through his putative agent Colter, for the donor letter, the letter is the initial publication, and she must show that Colter intended or knew that the defamatory statements would be published; the Court did not decide when an original defamer is liable for republication of material once liability for an identified publication is established, or what mental state that requires, because Roe pleaded no special damages from a particular republication.⁵

Second question. Because a defendant may direct the publication of defamatory information orally or through undiscoverable communications, a plaintiff who has identified a defamatory statement must show that the defendant was the source of it, but need not prove the specifics of the underlying communication.⁶ The plaintiff may meet that burden with direct or circumstantial evidence, such as proof that the defendant made the same statement to others, had unique or personal knowledge of the content and its details, or was relied on by the publishers to support its truth; mere speculation or surmise does not suffice.⁷

Disposition

The Court answered yes to both certified questions and left the application of the law to the facts to the Fifth Circuit.⁸

Vote Breakdown

Majority Opinion by Justice Bland

Joined by Blacklock, C.J., and Boyd, Busby, Devine, Huddle, Lehrmann, Sullivan, and Young, JJ.