MOTION - DISMISS - PURSUANT TO THE TEXAS CITIZENS' PARTICIPATION ACT, CHAPTER 27 OF THE TEXAS CIVIL PRACTICES & REMEDIES CODE December 05, 2016 (2024)

 
Preview
 FILED DALLAS COUNTY 12/5/2016 12:00:00 AM FELICIA PITRE DISTRICT CLERK Cause No.: DC-16-12579MOHAMED MOHAMED, Individually § IN THE DISTRICT COURTAnd on Behalf of Ahmed Mohamed, a Minor § Plaintiff, § §v. § 162ND JUDICIAL DISTRICT §THE BLAZE, INC.; GLENN BECK; §CENTER FOR SECURITY POLICY; §JIM HANSON; FOX TELEVISION §STATIONS, LLC; BEN FERGUSON; §BEN SHAPIRO; BETH VANDUYNE § DALLASCOUNTY,TEXAS Defendants. § DEFENDANTS CENTER FOR SECURITY POLICY AND JIM HANSON'S MOTION TO DISMISS PURSUANT TO THE TEXAS CITIZENS' PARTICIPATION ACT, CHAPTER 27 OF THE TEXAS CIVIL PRACTICES & REMEDIES CODE COME NOW Defendants Center for Security Policy ("CSP") 1 and Jim Hanson(collectively referred to as "CSP Defendants") and hereby file this Motion to Dismiss Pursuant tothe Texas Citizens' Participation Act, Chapter 27 of the Texas Civil Practices & Remedies Code.CSP Defendants, by and through this motion, request this honorable Court to dismiss Plaintiff'slawsuit 2 as a Strategic Lawsuit Against Public Participation ("SLAPP"). CSP Defendants alsorequest this honorable Court, upon dismissing Plaintiff's lawsuit, to award CSP Defendants (a)their reasonable attorney's fees, court costs and other expenses incurred in defending against1 While CSP is named as a defendant in this matter, there are no allegations that CSP made any offendingstatements. The only allegations in Plaintiff's Original Petition relating to CSP are that (1) it does business in Texasand is subject to service in the District of Columbia (Orig. Pet. 11 4), and (2) when Hanson made his publicstatements which gave rise to this lawsuit, he was executive vice president of CSP (Orig. Pet. 11 46). Plaintiffnowhere alleges that Hanson made any public statements at issue in this litigation in any capacity for or on behalf ofCSP. Without waiving any defense, and specifically without conceding that Hanson made his public statements foror on behalf of CSP, and without waiving the argument that Hanson was not acting for or on behalf of CSP in thecontext of his public statements at issue here, Defendants CSP and Hanson move the Court pursuant to this motionjointly.2 Formally, there are two plaintiffs: Mohamed Mohamed and his minor son. Insofar as the father is suing on his ownbehalf and on behalf of his son, we shall refer to Plaintiffs in the singular, except where the context requiresothenvise. Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 1Plaintiff's lawsuit and (b) to sanction Plaintiff in an amount sufficient to deter Plaintiff andothers from bringing future SLAPP litigation. 3 In furtherance of this motion, CSP Defendants submit the attached memorandum of lawand the declaration 4 of Defendant Jim Hanson (hereinafter "Hanson") and accompanyingexhibits 5 submitted herewith. CSP Defendants also incorporate by reference all affidavits andexhibits Defendants KDFW Fox 4 and Ben Ferguson relied upon and attached to their Motion toDismiss Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code. (Doc. Nos. 27-630). For ease of reference and convenience of the Court, CSP Defendants have filed thoseaffidavits and exhibits along with their motion to dismiss. CSP Defendants further rely upon Plaintiff's Original Petition and Request for Disclosureand request the Court to take judicial notice of same. Respectfully submitted,ls/David Yerushalmi ls/Robert J. MuiseDavid Y erushalmi, Esq.* Robert J. Muise, Esq.*American Freedom Law Center American Freedom Law CenterNY Bar No. 4632568; DC Bar No. 978179; Michigan Bar No. P62849Cal. Bar No. 132011; Ariz. Bar No. 0096 P.O. Box 131098 1901 Pennsylvania Avenue NW, Suite 201 Ann Arbor, MI 48113Washington, D.C. 20006 Phone: 734.635.3756Phone: 646.262.0500; Fax: 801.760.3901 Fax: 801.760.3901dyerushalmi@americanfreedomlawcenter.org rmuise@americanfreedomlawcenter.org Attorneys for Defendants Jim Hans on and Center for Security Policy*Note: AdmittedProHac Vice.3 Section 27.009 of the Texas Civil Practice and Remedies Code provides that a court "shall award" a moving partysanctions as well as the moving party's court costs, expenses, and attorney's fees after dismissing a legal actionunder the Texas Citizens' Participation Act. Tex. Civ. Prac. & Rem. Code Ann. § 27.009.4 See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (providing for unswom declaration in lieu of affidavit).5 See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) ("In determining whether a legal action should be dismissedunder this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts onwhich the liability or defense is based."). Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 2 ls/Pete Rowe Pete Rowe, Esq. Law Office of Pete Rowe, P.C. Texas State Bar No. 24072314 P.O. Box 703256 Dallas, Texas 75370 Phone: 817.637.3830 Fax: 972.346.6783 pete.rowe.tx@gmail.com Local Counsel for Defendants Jim Hanson and Center for Security PolicyDefs. Center for Security Policy & Jim Hanson's Mot. to Dismiss 3 MEMO RANUM OF LAW TABLE OF CONTENTSI. SUMMARY OF THE ARGUMENT ..................................................................................... 1II. BACKGROUND: PLAINTIFF AND HIS SON ORCHESTRATED A MEDIA CAMPAIGN TO GAIN PUBLIC NOTORIETY ................................................................... 5III. TCPA APPLIES AND REQUIRES THE COURT TO GRANT THE MOTION ................. 8 A. Plaintiff's Legal Action Is Covered by the TCP A. ............................................................ 8 1. The TCP A applies because the suit is based entirely upon statements by Hanson about Plaintiff and his son, both of whom were at the time, and remain today, public figures ....................................................................................... 9 a. Plaintiff and his son are all-purpose public figures ........................................... 10 b. In the alternative, Plaintiff and his son are limited-purpose public figures .... ... 11 2. The TCP A applies because the suit is directly related to statements by Hanson that address matters of public safety and government.. ............................................ 15 B. Plaintiff Cannot Meet His Burden .................................................................................. 17 1. Hanson's statements are opinion not fact ................................................................. 18 2. Plaintiffs cannot show that Hanson acted with actual malice ................................... 23IV. CONCLUSION ..................................................................................................................... 25 Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 4 TABLE OF AUTHORITIES CASESBentley v. Bunton,94 S. W.3d 561 (Tex. 2002) ............................................................................................................ 19Brewer v. Capital Cities/ABC, Inc.,986 S.W.2d 636 (Tex. App.-Fort Worth 1998) ..................................................................... 20, 21Carr v. Brasher,776 S.W.2d 567 (Tex. 1989) .................................................................................................... 23, 25Dolcefino v. Randolph,19 S.W.3d 906 (Tex. App.-Houston [14th Dist.] 2000) .............................................................. 20El Paso Times, Inc. v. Kerr,706 S.W.2d 797, 798 (Tex. App. -- El Paso 1986) ........................................................................ 23Forbes, Inc. v. Granada Biosciences, Inc.,124 S.W.3d 167 (Tex. 2003) .......................................................................................................... 24Gertz v. Robert Welch, Inc.,418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974) ......................................................... 9, 11, 23Hanco*ck v. Variyam,400 S.W.3d 59 (Tex. 2013) ............................................................................................................ 17Harvest House Publishers v. The Local Church, et al.,190 S.W.3d 204,212 (Tex. App.-Houston [1st Dist.] 2006) ...................................................... 20Hustler Magazine v. Falwell,485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988) ..................................................................... 23Milkovich v. Lorain Journal Co.,497 U.S. 1 (1990) ........................................................................................................................... 19Neely v. Wilson,418 S.W.3d 52 (Tex. 2013) ............................................................................................................ 23Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,416 S.W.3d 71 (Tex. App.-Houston [1st Dist.] 2013) .......................................................... 21, 220 'Quinn v. State Bar,763 S.W.2d 397 (Tex. 1988) .......................................................................................................... 23 Deft. Center for Security Policy & Jim Hanson's Mot. to DismissOllman v. Evans,242 U.S. App. D.C. 301, 750 F.2d 970 (D.C. Cir. 1984) .............................................................. 23Turner v. KTRK TV, Inc.,38 S.W.3d 103 (Tex. 2000) ............................................................................................................ 23San Jacinto Title Servs. ofCorpus Christi, LLC v. Kingsley Props., LP,452 S.W.3d 343 (Tex. App.-Corpus Christi [13th Dist.] 2013) ................................... ............. 8-9WFAA-TV v. McLemore,978 S.W.2d 568 (Tex. 1998) .......................................................................................... 9, 11, 17, 18Yiamouyiannis v. Thompson,764 S.W.2d 338 (Tex. App.-San Antonio 1988) ......................................................................... 20 STATUTESTex. Civ. Prac. & Rem. Code Ann. § 27.001 ................. ........................ ........................ ............. 2, 9Tex. Civ. Prac. & Rem. Code Ann. § 27.002 ................. ........................ ........................ ................. 1Tex. Civ. Prac. & Rem. Code Ann. § 27.003 .............................................................................. 1, 9Tex. Civ. Prac. & Rem. Code Ann. § 27.005 ........................................................................ passimTex. Civ. Prac. & Rem. Code Ann. § 27.006 .................................................................................. 2Tex. Civ. Prac. & Rem. Code Ann. § 27.009 .................................................................................. 2Tex. Civ. Prac. & Rem. Code Ann. § 73.001 ................. ........................ ........................ ............... 18Tex. Civ. Prac. & Rem. Code Ann. § 73.005 ................. ........................ ........................ ............... 24Tex. Civ. Prac. & Rem. Code Ann. § 132.001 ................................................................................ 1 OTHER1 ROBERT D. SACK, SACK ON DEFAMATION (3d ed. 2003) ............................................... 21 Defs. Center for Security Policy & Jim Hanson's Mot. to Dismiss 11I. SUMMARY OF THE ARGUMENT. The instant action is a classic example of a strategic lawsuit against public participation,or "SLAPP." Plaintiff filed this lawsuit with the goal of stifling criticism and negative feedbackfollowing Plaintiff's insertion of himself and his son into the public eye. As set forth in greaterdetail below, Plaintiff's lawsuit is an attempt to use our court system to infringe upon and violateDefendants' constitutional rights, specificallv CSP Defendants' exercise of their right of freespeech. The Texas Legislature passed the Texas Citizens Participation Act ("TCP A") in 2011 andintended it to have a broad application. A motion to dismiss under the TCPA is used to (a)encourage and safeguard the constitutional rights of a person to petition, speak, and associatefreely and otherwise lawfully participate in government and (b) simultaneously protect the rightsof a person to file a meritorious lawsuit for a demonstrable injury. Tex. Civ. Prac. & Rem. CodeAnn. § 27.002. The TCPA provides a procedure for dismissing meritless suits that are based on,and arise from, a defendant's exercise of the rights of free speech, petition, or association. Id. at§ 27.003. If the plaintiff's legal action is based on, relates to, or is in response to a party'sexercise of those rights, then that party may file a motion to dismiss the legal action. Id. at §27.003(a). To prevail on a motion to dismiss under the TCP A, a defendant must show, by apreponderance of evidence, that a legal action is based on, relates, to, or 1s in response to aparty's exercise of the right of free speech, right to petition, and/or right of association. Id. at§§27.003(a), 27.00S(b). If the defendant establishes this threshold under the TCPA, then theburden shifts to the plaintiff to "establish by clear and specific evidence a prima facie case foreach element of the claim in question." Id. at § 27.00S(c). If the defendant establishes by a Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 1preponderance of the evidence that a legal action is covered by the TCP A and the plaintiff failsto establish by clear and specific evidence a prima facie case for each element of a challengedclaim, then the trial court must dismiss the plaintiff's legal action. Id. at§§ 27.005 (b) & (c). Ifthe plaintiff carries his burden, then the trial court must still dismiss the plaintiff's legal action ifthe defendant establishes by a preponderance of the evidence each essential element of a validdefense to the plaintiff's claim. Id. at § 27.00S(d). When a trial court dismisses a plaintiff'slegal action under the TCPA, the trial court is required to award the defendant his attorney's fees,court costs, and expenses and to sanction the plaintiff in an amount sufficient to deter the filingof similar suits in the future. Id. at§ 27.009(a). Plaintiff Mohamed Mohamed and his attorneys are attempting to use the coercive powersof our state court system to violate the CSP Defendants' constitutional right of free speech. Assuch, the Court is required by the TCPA to dismiss Plaintiff's lawsuit against CSP Defendantsand award CSP Defendants their attorney's fees, court costs, expenses, and to sanction Plaintiffin an amount sufficient to deter similar actions. The TCPA applies because Plaintiff's lawsuit against CSP Defendants anses fromHanson's exercise of his right to free speech on matters of public concern, including issues aboutcommunity well-being, issues related to the government, issues related to health or safety, andissues related to a public figure. Id. at §§ 27.001(3), (7). Plaintiff's petition selectively editsHanson's statements in a transparent attempt to hide and disguise the substance, import, andfocus of the discussion: public safety, government, and community well-being. 6 Moreover,6 On page 15, paragraph 48 of Plaintiffs Original Petition, Plaintiff notes that Hanson said Ahmed Mohamed'scontraption "look[ed] like a bomb . ." Plaintiff's use of ellipses disingenuously omits that Hanson, via hisexperience as a member of the US. military's Special Forces, built and detonated suitcase bombs and therefore hadan expert-level understanding of what a briefcase bomb looks like and that Ahmed Mohamed's contraption looked Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 2when Hanson's statements are viewed in their totality, it becomes clear that he was profferingopinions on politically-charged matters related to the government and to public safety. 7 Since Hanson was exercising his right to free speech on a matter of public concern as thatis defined by the TCP A, CSP Defendants have met their burden of establishing that the TCP Aapplies. Therefore, the burden shifts to Plaintiff to establish by clear and specific evidence eachelement of his defamation claim. If Plaintiff fails to establish even one element of hisdefamation claim by clear and specific evidence, then the Court must dismiss Plaintiff's lawsuit. Plaintiff cannot meet his burden. To begin, Hanson's statements are fully protected bythe First Amendment insofar as some are statements of pure opinion, while others are judgmentsbased upon disclosed true facts. Moreover, Plaintiff has not even alleged that Hanson made anystatement capable of a meaning that would lend itself to an action for libel per se, which is theonly action Plaintiff alleges in his Original Petition. 8 Even after Plaintiff's selective editing of Hanson's statements, the publication was notlibelous per se because the statements did not: (a) injure Plaintiff Mohamed Mohamed or his sonAhmed in either of their offices, professions, or occupations; (b) charge either of them with thecommission of a crime; (c) impute to either of them a loathsome disease; or (d) impute to eitherof them sexual misconduct. As selectively edited by Plaintiff and his attorneys, Hanson said, andexactly like a suit-case born b based upon his experience and expertise. See Hanson, Ex. I, 1] l 4(App. 214-15); Ex. 1-2 (App. 597-99); Ex. l-2i and Ex. l-2ii (App. 601).7 Plaintiff also omitted the fact that Hanson stated during the same episode of the Glenn Beck Show that "Theyrreferring to "Islamists" generally, and Plaintiff Mohamed Mohamed, and the Council on American-IslamicRelations, specifically l created the appearance of an anti-Muslim bias where there was none, where there was purepublic safety concern, and they use that to portray Muslims as victims, Americans as bigots, and our system asstacked against them. They will do that again, and what they're trying to do is censor any criticism oflslam. Thatallows them to do things like impose sharia tribunals like the mayor shut down and use Islamic law to supplant USlaw." See id8 Paragraph 61 of Plaintiffs Original Petition states, "The conduct of the Defendants is libel per se." Paragraph 50,the only other paragraph characterizing Hanson's public statements, asserts that the statements "constituted libel perse Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 3Plaintiff complains of, the following statements, I think it's happening. I don't think there's any question that this latest event was a PR stunt. It was a staged event where someone convinced this kid [Ahmed Mohamed] to bring a device that he didn't build, as you mentioned. It's a RadioShack clock that he put in a briefcase, and in a briefcase it looks like a bomb . . . . They did that to create the exact scenario that played out. They wanted people to react, and they wanted to portray this kid as an innocent victim. I think he was a pawn potentially of his father. His sister actually claimed that she was suspended. His sister told MSNBC that she was suspended by the same school district from making a bomb threat years ago. Don't know if that's true yet, but she said that in her own words. So there's a vendetta from them, and they're tied, as you mentioned, with CAIR [Council on American Islamic Relations] and CAIR is Muslim Brotherhood and Hamas tied. They're basically involved in civilization jihad, so I think you're right. Plaintiff failed to identify any statement that would qualify as libelous much less as libelper se as to either Plaintiff Mohamed Mohamed or his son, Ahmed Mohamed. None of thestatements affected the professions of either Plaintiff or his son. In fact, Plaintiff's son is noteven 15 years of age at the time of the filing of this motion and has no profession. Even if thestatements have had any impact on the profession of Plaintiff, a politician who is again eyeing arun for the presidency of Sudan, the net effect has been positive as the publicity serves to keephim in the public eye, which is why Plaintiff, when faced with the choice to avoid or to seekpublicity following his son's arrest, chose to seek it 9 and to establish the family as its own publicrelations firm on the very day Plaintiff was bringing Ahmed home from the police stationfollowing his September 14, 2015 arrest. 10 If the Court views Plaintiff's claims as libel per quodrather than libel per se, Hanson's statements remain protected opinion. Overlaying all of these arguments is the indisputable fact that Plaintiff and his son,Ahmed, are both public figures who intentionally sought and received publicity following9 See Ex. A-9, esp. p. 4 (App 91-103, esp. 95).10 See id, esp. p. 3 (App. 91-103, esp. 94). Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 4Ahmed's September 14, 2015 arrest. 11 As either general or limited-purpose public figures,Plaintiff and his son, who both enjoy international notoriety, are required to establish by clearand specific evidence that Hanson published his statements with actual malice (i.e., a knowing orreckless disregard of the truth). Plaintiff cannot carry his burden to show actual malice even ifthe statements Plaintiff complains of were false and defamatory. Thus, the Court must dismissPlaintiff's lawsuit under Texas Civil Practices and Remedies Code § 27.005.II. BACKGROUND: PLAINTIFF AND HIS SON ORCHESTRATED A MEDIA CAMPAIGN TO GAIN PUBLIC NOTORIETY. Both Plaintiff and his son, Ahmed, have voluntarily and repeatedly interjected themselvesinto the public eye, and enjoy international notoriety. Moreover, both Plaintiff and his son haveenjoyed the benefits of this notoriety and have sought to extend their moment in the public eye.Specifically, Plaintiff has twice run for political office as a presidential candidate in his nativecountry of Sudan. He first ran for president of Sudan in 2010 12 and then again in 2015. 13Plaintiff has also declared that he will run again for the Sudanese presidency in 2020. 14 In his2015 bid for the Sudanese presidency, Plaintiff promised to end United States sanctions and have11 See id ("Searching for Ahmed's name is a daily ritual. The family is its own public relations firm, foundedSeptember 14, 2015, as they brought Ahmed home from the police station.") & Ex. A-9, p. 4 (App. 95) ("And socame the next choice: Let this all die down, or seize the platform they'd been given and use it. So they put Ahmedon 'Good Morning America,' MSNBC, and 'The Nightly Show with Larry Wilmore."').12 See Patrick Michels, Why Mohamed Elhassan, the Dallas Imam Who Played Defense Attorney in Quran-TorchingChurch, Says He "Admires" Terry Jones, Dall. Observer, April 4, 2011, available athttp ://www.dallaso bserv er. com/news/why-m oham ed-elhassan-the-dallas-imam -who-played-defense-attorney-in-guran-torching-church-says-he-admires-temr-j ones-7130292, Exhibit A-6. ,r 12.13 See Sudan presidential contender vows to lift US sanctions in first 100 days if elected, Sudan Tribune, Feb. 16,2015, available at http://www .sudantribune.com/spip.php?article54000, Exhibit A-8; see Nina Golgowski, Father ofMuslim teen arrested for clock previously battled Fla. Koran burner, has run for president of Sudan twice, N. Y.Daily News, Sept. 16, 2015, ExhibitA-10. P. 2.14 See Ex. A-9, p. 5 (App. 96). Defs. Center for Security Policy & Jim Hanson's Mot. to Dismiss 5Sudan removed from the list of state sponsors of terrorism. 15 It should not be surprising thatPlaintiff's public figure persona as a Sudanese politician is intimately connected to the issuessurrounding this lawsuit: Islamic terrorism and the response by the West to that existential threat. Plaintiff, not content with being confined to running in mundane Sudanese nationalelections and speaking to the press on matters relating to international terrorism, has sought outthe global stage with the sensational and provocative as a means to further leverage his publicpersona and fame. Thus, Plaintiff agreed to play "defense attorney" in a mock trial of the Koranin 2011. 16 Plaintiff was apparently the only Muslim who could be found to take part in theincendiary stunt that resulted in the Koran being burned, which led to three days of violence inAfghanistan in which 21 people were killed and 150 injured. 17 Despite the casualties and thefact that some in his local community have criticized and ostracized him for his participation inthe Koran trial, Plaintiff does not regret his participation in the highly publicized event. 18 Plaintiff knew the publicity that would follow him as part of the Koran trial and wentforward with his participation in any event. TruthTV broadcast the Koran trial, and it was theowner of TruthTV, a former Muslim by the name of Ahmed Abaza, who invited Plaintiff to takepart in the trial and play the role of "defense attorney." 19 Plaintiff was already acquainted withTruthTV and the publicity that it could bring him as he had appeared on TruthTV prior to takingpart in the now-infamous Koran trial. 20 Although Plaintiff had some reservation about his15 See Sudan presidential contender vows to lift US sanctions in first 100 days if elected, Sudan Tribune, Feb. 16,2015, available at http://www.sudantribune.com/spip.php?article54000, Ex. A-8, (App. 90) esp. ,r,r 1 and 2.16 See Exhibit A-7 (App. 84-88).17 See id.18 See id, esp. p. 3 (App. 87).19 See id at p. 2 (App. 86).20 See id. Defs. Center for Security Policy & Jim Hanson's Mot. to Dismiss 6participation just prior to the ''trial," he went ahead and played his part. 21 Publicity is importantto Plaintiff because, as the Washington Post reports, "The more people who know him, the betterhis chances [of winning the Sudanese presidency]. " 22 Plaintiff's thirst for publicity drives him-and now also his son, Ahmed-to seek out thepress. The Washington Post reports that Plaintiff believes that ''the more Ahmed is seen, thebetter. It's good for the family. " 23 And by good for the family, Plaintiff means that it is good forhis political aspirations. 24 Ahmed feels the same way about publicity as does his father. Ahmedtold the Washington Post that if he "wouldn't get tired, [Ahmed] would do more interviews sothat he would have more influence. " 25 This is not a recent revelation for young Ahmed. Threedays after Ahmed's arrest when the Mohamed family and their handlers from the Council onAmerican-Islamic Relations ("CAIR") went into overdrive, Ahmed told the Daily Beast that thepublicity he was receiving was "gonna be soooooo much longer" than a mere 15 minutes offame. 26 Ahmed knew, shortly after his arrest, that he could milk his new-found publicity forpersonal gain. As reported by the Daily Beast on September 17, 2015, Ahmed was told by hislocal mosque youth leader that "scholarships and jobs can come from this, if you sit down andtalk to the right people who have influence, that would be the best call. So you don't wanna just'Oh, I wanna go on this show, and go on this show. "' 27 This advice was given Ahmed after AliaSalem, the CAIR handler who functioned as the Mohamed duo's spokeswoman, asked Plaintiff21 See id.22 See Ex. A-9, p. 5 (App. 96).23 See id24 See id.25 See id.26 See Ex. I-4 (App. 607).27 See id (App. 608). Defs. Center for Security Policy & Jim Hanson's Mot. to Dismiss 7and his son if they wanted Ahmed to appear on late-night TV with Stephen Colbert in what Ms.Salem characterized as "a really, really, really, really big show." 28 About one-half hour after thisconversation took place, Ms. Salem accompanied Ahmed on MSNBC where Ahmed discussedhis arrest and the device that he took to school on the fateful day he was propelled into thespotlight 29 with the help of his public-relations minded father and CAIR. While CSP Defendants begrudge Plaintiff and his son neither fame nor resulting fortune,they most certainly stand firm on their constitutional right to fair comment on Plaintiff's fame,their methodologies, and their possible motivations and see no reason to self-censor themselvesjust because there is always some lawyer somewhere prepared to file even the most patentlymeritless lawsuit. Such is the case here-a case which falls squarely within the TCPA.III. TCPA APPLIES AND REQUIRES THE COURT TO GRANT THE MOTION. A. Plaintiff's Legal Action Is Covered by the TCP A. Plaintiff's legal action is covered by the TCPA and therefore should be dismissed withprejudice. The TCP A was enacted in 2011 to encourage participation and discussion aboutmatters of public concern by "protecting citizens from retaliatory lawsuits that seek to intimidateor silence them on matters of public concern." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015).The TCPA, Texas' Anti-SLAPP statute,30 is the Legislature's mechanism by which a trial courtsafeguards citizens' First Amendment rights to speech, petition, and association by "ensuringthat courts will dismiss SLAPP suits quickly and without the need for costly proceedings." SanJacinto Title Servs. of Corpus Christi, LLC v. Kingsley Props. , LP, 452 S.W.3d 343, 348-4928 See id.29 See id (App. 608-09) and Ex. I-3 (App. 602).30 "A SLAPP suit can be defined as a lawsuit that is without substantial merit that stop[s] citizens from exercisingtheir political rights or to punish them for having done so." San Jacinto Title Servs. of Corpus Christi, LLC v.Kingsley Props., LP, 452 S.W.3d 343, 345 n. l (Tex. App.-Corpus Christi [13th Dist.] 2013, pet denied) 2013). Defs. Center for Security Policy & Jim Hanson's Mot. to Dismiss 8(Tex. App.-Corpus Christi [13th Dist.] 2013, pet. denied). In order to carry out its purpose of safeguarding citizens from SLAPP suits, the TCP Aprovides for dismissal of a legal action, such as Plaintiff's lawsuit, when a party can prove by apreponderance of the evidence that the legal action is "based on, relates to, or is in response to aparty's exercise of the right of free speech, right to petition, or right of association." Tex. Civ.Prac. & Rem. Code §§ 27.003 & 27.005. The TCPA defines the "exercise of the right of freespeech" as any "communication made in connection with a matter of public concern." Id. at27.001(3). A "matter of public concern" includes any issue related to: (a) health or safety; (b)community well-being; (c) the government; and/or (d) a public official or public figure. Id. at27.001(7)(a)-(d). After the moving party carries its burden and proves that the legal action iscovered by the TCP A by a preponderance of the evidence, the plaintiff must establish a primafacie case for each element of his cause of action and must do so by clear and specific evidenceto avoid dismissal of the legal action. Id. at 27.005(b) and (c). Therefore, when a party makesany communication related to issues of safety, community well-being, the government, or apublic figure, any litigation that is based on, is in response to, or relates to that communication, iswithin the scope of the TCP A. 1. The TCPA applies because the suit is based entirely upon statements by Hanson about Plaintiff and his son, both of whom were at the time, and remain today, public figures. Public figures can be categorized as either (a) all-purpose public figures or (b) limited-purpose public figures. WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); see alsoGertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 2008, 41 L.Ed.2d 789 (1974)("Those who, by reason of ... the vigor and success with which they seek the public's attention,are properly classified as public figures."). All-purpose public figures are those persons who Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 9have achieved such pervasive fame or notoriety that they have become public figures for allpurposes and in all contexts. Id. A limited-purpose public figure is a person who is a publicfigure for only a limited range of issues surrounding a particular public controversy. Id.Limited-purpose public figures are those individuals: (a) who are involved in matter of publiccontroversy; (b) whose role in the public controversy is more than trivial or tangential; and (c)who are alleging defamation related to the Plaintiff's role in the controversy. Id. a. Plaintiff and his son are all-purpose public figures. Plaintiff and his son, Ahmed, were all-purpose public figures beginning on September 14,2016, when the father-son team decided to become its own public relations firm followingAhmed's arrest. 31 Their status as all-purpose public figures has continued to the present day.Plaintiff had already acquired international notoriety, prior to his son's arrest, as a result of hispolitical career, 32 appearances on Truth TV, 33 and defense of the Koran at the now-infamousTerry Jones' Koran trial. 34 In fact, when Plaintiff had the opportunity to avoid or to seek outpublicity following his son's arrest, he chose publicity. As the Washington Post reported, whenPlaintiff had the choice to let the public uproar over his son's arrest die down or "seize and usethe platform [he and Ahmed] had been given," he chose to use the platform and keep his familyin the public eye by putting Ahmed on "Good Morning America," MSNBC, and "The Nightly 35Show with Larry Willmore." Ahmed's fame rapidly spread far and wide, so much so that heand his family gained an audience with the President of Sudan and a visit by way of special31 See Exhibit A-9, p. 3;32 See Ex. A-6 (App. 80-83), 1] 12; Ex. A-8 (App. 89-90); A-10 (App. 104-107).33 See Ex. A-7 (App. 84-88).34 See id35 See Ex. A-9, p. 4 (App. 95). Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 10invitation to the White House. 36 Plaintiff believes the public attention he and his family havereceived is beneficial, 37 which explains why he seeks out publicity at every opportunity. As therecord herein makes clear, Plaintiff is quite adept at public relations and generating fame. Ahmed, like his father, seeks out and enjoys publicity. Shortly after his arrest, whenAhmed was asked by a reporter for the Daily Beast whether he was familiar with the phrase "15minutes of fame," Ahmed replied that his time in the spotlight would be "soooooo muchlonger. " 38 This same article, written on September 17, 2015, described Ahmed as maybe "themost famous teenager on Earth." Ahmed is a star and enjoys his fame. He has said that ifhe hadmore stamina, then he would give more interviews to extend his already substantial influence. 39 b. In the alternative, Plaintiff and his son are limited-purpose public figures. If the Court does not find that Plaintiff and his son, Ahmed, were all-purpose publicfigures, then the Court should find them both to be limited-purpose public figures. A limited-purpose public figure is a plaintiff (a) who is involved in a matter of public controversy; (b)whose role in the public controversy is more than trivial or tangential; and (c) who is allegingdefamation related to the plaintiff's role in the controversy. WFAA v. McLemore 978 S.W.2d at571. Plaintiff and his son, Ahmed, are properly characterized as limited-purpose public figuresbecause they both actively sought out and were successful in receiving publicity arising fromtheir central roles in the public controversy that is at the heart of this litigation. 40 As set forth36 Id37 Id at p. 5 (App. 96).38 See Ex. 1-4 (App. 607).39 See Ex. A-9 at p. 5 (App. 96).40 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 2008, 41 L.Ed.2d 789 (1974) ("Those who, byreason of ... the vigor and success with which they seek the public's attention, are properly classified as publicfigures."). Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 11above, when Ahmed and his father had an opportunity to let the news of his arrest die down, theychose instead to seek publicity and exploit the media for sympathy, attention, and personalgain. 41 Ahmed was able to exploit his new found fame and parlay the attention into a trip to theWhite House, an audience with the President of Sudan, an invitation to the Google Science Fair,and at least $18,000 toward his college education. 42 Specifically, both Ahmed and his father were involved m a matter of publiccontroversy-to wit, the controversy concernmg Ahmed's arrest for taking a susp1c10uscontraption to school, which resulted in his arrest and out-of-school suspension, and asubsequent international media firestorm. The day after Ahmed's arrest, CAIR put out a pressrelease calling a press conference and highlighting the "hoax bomb." The headline of the pressconference was "CAIR: Family Adjusting to Ahmed Mohamed's Sudden Fame as PoliceAnnounce No Charges for Clock Deemed 'Hoax Bomb."' 43 The press conference was to takeplace at the Mohamed family residence on September 16, 2015, two days after Ahmed's arrest. 44The press release listed Ms. Alia Salem, the executive director of CAIR-DFW, as the primarycontact. 45 This same Alia Salem would arrange for Ahmed and herself to be interviewed byMSNBC on September 16, 2015. 46 Both Plaintiff and his son were at the center of the controversy and did more than justmake themselves accessible to the press. The father-son duo purposefully and quite successfullyused every public opportunity to broadcast their views about Islamophobia and how anti-41 See Ex. A-9, p. 4.42 See Ex. A-9 at p. 4 (App. 95).43 See Ex. A-5 (App. 77-79).44 See id.45 See id.46 See id (App. 608-09) and Ex. 1-3 (App. 602). Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 12terrorism concerns in the West have led to Muslim victimization. At the September 16, 2016,press conference, both Ahmed and his father gave statements to Fox 4, wherein Plaintiff gave animpassioned plea to the public about how he believed his son was mistreated and how suchmistreatment was, in his view, un-American. 47 In contrast, on the same day, Fox 4 reported that the City of Irving Police Chief had ameeting with local Islamic leaders at the Islamic Center of Irving, who reportedly were notcritical of the way the incident was handled by the Irving Police Department. 48 This might haveprovided an opportunity to allow the controversy to die down, but Ahmed and his father haddifferent plans. They were planning for a "host of national media interviews and a possible tripto the White House. " 49 After the incident and the consequent media firestorm, the Mohamed family spent ninemonths in Qatar before deciding to return to the United States. They could have done so withoutfanfare. Ahmed's father, however, continued to seek out the press so that he and his son couldcontinue to exploit the controversy for their benefit. On August 2, 2016, upon Ahmed's return,Plaintiff invited reporters from the Washington Post, KDFW Fox 4, 50 and other media outlets tointerview his son and himself. 51 According to the Washington Post, Plaintiff issued a pressrelease that said, "Clock Boy is back, and ready to be interviewed." 52 Plaintiff used the opportunity provided by his son's interview to continue to present hisopinion that Ahmed had been mistreated as a result of discrimination and to herald the news that47 See video Ex. A-3i (App. 45).48 See video Ex. A-3ii (App. 45).49 See id.50 See Smith Ex. A, mJ 7-9 (App. 36).51 See Ex. A-9 (App. 91-103).52 See id at p. 2 (App. 93). Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 13he was filing a multi-million dollar lawsuit against the Irving Independent School District. 53Ahmed, still enamored of his new found fame and the concomitant benefits, said in the August 2,2016 Washington Post article, "Everyone gets 15 minutes of fame who gets covered, but it'salways your choice to extend it" and in reference to the lawsuits he and his father filed, "Fifteenminutes of fame? That's all you heard? Maybe 15 million, that's what I'm looking for." 54 As the foregoing demonstrates, Ahmed and his father satisfy the first two prongs of thetest for determining if a plaintiff is properly categorized as a limited-purpose public figure. Bothare central figures in a public controversy that they themselves are responsible for prolongingand exploiting for their personal gain. Both also satisfy the third and final prong of the testbecause the alleged defamation stems from their roles in the controversy. Specifically, Plaintiff complains of the following remarks made by Hanson: I think it's happening. I don't think there's any question that this latest event was a PR stunt. It was a staged event where someone convinced this kid [Ahmed Mohamed] to bring a device that he didn't build, as you mentioned. It's a RadioShack clock that he put in a briefcase, and in a briefcase it looks like a bomb . . . . They did that to create the exact scenario that played out. They wanted people to react, and they wanted to portray this kid as an innocent victim. I think he was a pawn potentially of his father. His sister actually claimed that she was suspended. His sister told MS NBC that she was suspended by the same school district from making a bomb threat years ago. Don't know if that's true yet, but she said that in her own words. So there's a vendetta from them, and they're tied, as you mentioned, with CAIR (Council on American Islamic Relations) and CAIR is Muslim Brotherhood and Hamas tied. They're basically involved in civilization jihad, so I think you're right.According to Plaintiff's petition and Plaintiff's press release issued the day after Ahmed's arrest,the public controversy is about Ahmed's arrest for bringing a suspicious device to school thatinitially was believed to be a "hoax bomb" and the fallout following his arrest. The CAIR press53 See Ex. A-9 (App. 91-103).54 See id. Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 14release is headlined, "CAIR to Hold News Conference with Texas Muslim Teen Detained OverClock." The same press release states explicitly that Ahmed's contraption was deemed a "HoaxBomb." 55 The CAIR-led press conference also opened the debate up to the religious aspects thatmight have been involved in the controversy when its written statement said that Ahmed's arrestwas indicative of "growing Islamophobia in American society. " 56 Thus, the allegedly defamatory statements Plaintiff complains of vis-a-vis Hanson aredirectly related to Plaintiff's and Ahmed's roles in the public controversy. Hanson's statementsare about Ahmed taking his contraption to school, Ahmed's possible motivations, the role hisattention-seeking father may have played in Ahmed deciding to take a suspicious device toschool, his father's possible motivations, and their connections to the political-religiousadvocacy group known as CAIR, which initially guided the Mohamed family in their efforts toexploit the media. 2. The TCPA applies because the suit is directly related to statements by Hanson that address matters of public safety and government. The statements made by Hanson were also related to matters of public safety andgovernment. According to Plaintiff's own CAIR press release, the device Ahmed took to schoolwas deemed a "hoax bomb." 57 The fallout, including national press coverage, from Ahmed'sdecision to take his device to school and his subsequent arrest "captured the ongoing debateabout balancing the rights of individuals against the security of our nation and its publicschools. " 58 Further to the point that this matter relates to safety and government, Hanson, who isa national security and communications expert, stated the following, "You take a situation, and55 See Ex. A-5 (App. 77-79).56 See id.57 See id.58 See Smith Ex. A, 1] 11. Deft. Center for Security Policy & Jim Hanson's Mot. to Dismiss 15you create the appearance of something bad to get an effect. They created the appearance of ananti-Muslim bias where there was none, where there was pure public sa(etv concern, and theyuse that to portray Muslims as victims, Americans as bigots, and our svstem as stacked againstthem." 59 Plaintiff's petition omits this statement by Hanson no doubt because such statementsdemonstrate that this suit is firmly within the grasp of the TCP A. Hanson, who served our country in the United States Army's Special Forces and hasextensive ordinance training, also said the following during the same episode of the Glenn BeckProgram: "You know how I know that [i.e., that Ahmed's device resembled a bomb], Glenn?Because I've built briefcase bombs and blown them up. That's what they look like. So, anyonewho looked at that was rea 

Related Contentin Dallas County