Jane Roe v. Leighton Paige Patterson and Southwest Baptist Theological Seminary

Supreme Court of Texas
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No. 24-0368
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Jane Roe,
Appellant,

v.

Leighton Paige Patterson and
Southwest Baptist Theological Seminary,
Appellees

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On Certified Questions from the
United States Court of Appeals for the Fifth Circuit
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Argued September 11, 2024

JUSTICE BLAND delivered the opinion of the Court.

In certified questions to our Court, the Fifth Circuit asks whether
a defendant may be held liable for defamation absent direct evidence of
the statements the defendant made to the publisher. In particular:
1. Can a person who supplies defamatory material to another for
publication be liable for defamation?
2. If so, can a defamation plaintiff survive summary judgment by
presenting evidence that a defendant was involved in
preparing a defamatory publication, without identifying any
specific statements made by the defendant?
The events underlying the claim before us arise in the higher
education context. A board of directors removed a university president
from his position, citing in part the president’s mishandling of a
student’s report of sexual assault. Seeking to reinstate the president, a
group of donors published an open letter to the board accusing the
complaining student of lying to police about the assault and further
stating that the encounters were consensual. The student sued the
president and the university for defamation, claiming that the
president’s agent had provided the defamatory content published in the
donor letter.
We answer yes to the two certified questions. First, a person who
supplies defamatory material to another for publication may be liable if
the person intends or knows that the defamatory material will be
published. Second, a plaintiff may survive summary judgment without
identifying the specific statements the defendant made in supplying the
defamatory material if the evidence is legally sufficient to support a
finding that the defendant was the source of the defamatory content.
I
In 2015, at the beginning of her second year as a student at
Southwestern Baptist Theological Seminary, Jane Roe reported to
President Paige Patterson that a fellow student and university
employee, John Doe, had sexually assaulted her at gunpoint on several
occasions during the previous year. 1 Patterson notified Fort Worth

1 Unusually, this certified question does not present a stipulated or
settled factual record. In its posture before our Court, we do not resolve the
appeal but instead answer the legal questions presented. Consistent with the

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police, and Roe provided a statement to the responding officers detailing
her account of the assaults. While an investigation into Roe’s complaint
was pending, university officials discovered a cache of firearms in Doe’s
room. Southwestern expelled Doe from the university for violating its
campus firearms policy. He later died.
Several weeks after Roe made her report to Patterson, he emailed
a staff member that he planned to meet with Roe again to “break her
down.” At the meeting, Patterson confronted Roe with Doe’s version of
events: that Roe and Doe’s relationship was consensual and that Doe
possessed proof in the form of nude photographs of Roe. Roe responded
that she had not consented to a relationship nor to being photographed.
Shortly after the meeting, Roe withdrew from Southwestern.
Nearly three years later, Southwestern’s board of directors
removed Patterson from his duties, citing in part his treatment of Roe.
Seeking Patterson’s reinstatement, a group of donors wrote to the board.
The relevant parts of the letter stated that Roe had engaged in
consensual sexual activity, that she had texted nude photographs to
Doe, that she had made false statements to the police, and that her
allegations of rape were false:
It is our understanding that [the Board] knew full well that
the female student’s allegations of rape were false, that she

standard of review, however, we “examine the evidence in the light most
favorable to the non-moving party, indulging reasonable inferences and
resolving doubts against the party seeking summary judgment.” Helena Chem.
Co. v. Cox, 664 S.W.3d 66, 73 (Tex. 2023); cf. Burell v. Prudential Ins. Co. of
Am., 820 F.3d 132, 136 (5th Cir. 2016) (summary judgment review generally
requires viewing evidence in a light favorable to the non-movant).

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had engaged in consensual sexual activities on more than
one occasion and those acts had taken place in public
buildings at the Seminary, and that campus security were
shown the nude pictures she texted to the male student. It
is our further understanding that [the Board] knew full
well that she begged Dr. Patterson to not call the police,
but he insisted that he would and he did so within six
minutes of hearing her allegation.
Regarding the “break her down” email, the letter says:
The full Board understood and accepted Dr. Patterson’s
explanation of the phrase “breaking her down” that
appeared in that email as being a statement of his desire
to meet with her (without the police present, but clearly, as
was always his practice, with other Seminary personnel
present) and attempt to help her recant her false
allegations of rape before she continued with such false
statements to the police.
The donors sent copies of the letter to over one hundred others, including
Southwestern faculty and alumni, church leaders, and members of the
press. Scott Colter, Patterson’s chief of staff, provided the donors with
the list of recipients. Colter assisted the letter drafters in other ways,
including by suggesting signatories for the letter, coordinating the
timing and method of the letter’s distribution, passing the draft to
Patterson and his personal lawyer, and verifying and providing
“additional info about the 2015 event.”
Roe sued Southwestern and Patterson for defamation based on
the text of the donor letter. 2 The federal district court granted summary

2 Roe further alleges claims based on other publications that are not at

issue here.

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judgment, concluding that Colter had not acted as Patterson’s agent
when he participated in drafting the letter.
On appeal, the Fifth Circuit held that the summary judgment
evidence created a fact issue as to whether Colter had acted as
Patterson’s agent. It then certified the questions to this Court, and we
accepted them.
II
The answer to the first question—whether a person who supplies
defamatory material to another for publication can be liable for
defamation—is yes. The parties agree with this answer. They part
company, however, as to whether the person must intend or know that
the defamatory material provided will be published or merely
reasonably foresee that it could be published. Roe, relying on part of a
Restatement comment and two intermediate appellate opinions, urges
that a defamer may be liable for damages arising from foreseeable
repetitions of that material. 3 Patterson, citing opinions from other
courts of appeals and other state high courts, counters that a defamer

3 See Restatement (Second) of Torts § 577 cmt. k (Am. L. Inst. 1977) (“If

a reasonable person would recognize that an act creates an unreasonable risk
that the defamatory matter will be communicated to a third person, the
conduct becomes a negligent communication. A negligent communication
amounts to a publication just as effectively as an intentional communication.”);
Wheeler v. Methodist Hosp., 95 S.W.3d 628, 639–40 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (holding, for purposes of determining limitations period,
that originator of defamation may be liable for subsequent foreseeable
republications); Stephan v. Baylor Med. Ctr. at Garland, 20 S.W.3d 880, 889
(Tex. App.—Dallas 2000, no pet.) (same).

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must, at the outset, intend or authorize the defamatory material’s
publication. 4
“‘Publication’ occurs if the defamatory statements are
communicated orally, in writing, or in print to some third person who is
‘capable of understanding their defamatory import and in such a way
that the third person did so understand.’” 5 The Restatement
characterizes the intent to publish as “when the actor does an act for the
purpose of communicating it to a third person or with knowledge that it
is substantially certain to be so communicated.” 6 The Restatement also
allows for liability if “a reasonable person would recognize that an act

4 See Cyrus W. Scott Mfg. Co. v. Millis, 67 S.W.2d 885, 887 (Tex. App.—

Galveston 1933, writ dism’d) (“The law is well settled both in England and
America, that the unauthorized and unprocured subsequent republication of
the alleged libel by others who were in no way connected with the defendant,
or originator of the alleged libel, cannot be offered in evidence either on the
question of liability or enhancement of the damages.”), disapproved of on other
grounds by Texam Oil Corp. v. Poynor, 436 S.W.2d 129 (Tex. 1968); Evans v.
Am. Publ’g Co., 8 S.W.2d 809, 812 (Tex. App.—Dallas 1928) (speaker at
convention not liable for damages resulting from newspaper’s publication of
his remarks the next day), cert. question regarding venue answered, 13 S.W.2d
358 (Tex. [Comm’n Op.] 1929). See also Geraci v. Probst, 938 N.E.2d 917, 922
(N.Y. 2010) (holding that it was error to admit evidence of republication, even
for purposes of showing damages, because the defendant played no role in the
republication); Pulliam v. Bond, 406 S.W.2d 635, 643 (Mo. 1966) (stating that
defendants could not be liable for republication or dissemination because they
did not publish the communication to anyone not authorized to receive it).
5 Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017)
(quoting Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—Dallas
2003, no pet.)).
6 Restatement (Second) of Torts § 577 cmt. k (emphasis added).

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creates an unreasonable risk that the defamatory matter will be
communicated to a third person.” 7
The original defamer may be further liable for republication of a
defamatory statement, but not without proof of an initial intentional or
knowing publication. To recover for defamation, a plaintiff must identify
the defamatory statements made and further demonstrate that the
defendant was a source of those false statements. 8
Fault is an important element of defamation liability, both in
making the publication and with regard to its false and defamatory
meaning. 9 A defamation plaintiff who is not a public figure must prove
that the defendant knew or should have known that the statement was
false and defamatory. 10 A plaintiff who is a public figure must further
demonstrate that the statement was made with actual malice. 11 When

7 Id.

8 See Polk Cnty. Publ’g Co. v. Coleman, 685 S.W.3d 71, 76 (Tex. 2024)

(“One such element [of a defamation claim] is ‘the publication of a false
statement of fact’ by the defendant.” (quoting Dall. Morning News, Inc. v.
Tatum, 554 S.W.3d 614, 623 (Tex. 2018))).
9 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

10 See Hancock v. Variyam, 400 S.W.3d 59, 65 n.7 (Tex. 2013)
(establishing negligence as the appropriate level of fault in a suit between
private parties); Neely v. Wilson, 418 S.W.3d 52, 72 (Tex. 2013) (describing the
negligence standard). An exception exists for media defendants if the content
of the false statement “would not ‘warn a reasonably prudent editor or
broadcaster of its defamatory potential.’” D Mag. Partners v. Rosenthal, 529
S.W.3d 429, 440 (Tex. 2017) (quoting Neely, 418 S.W.3d at 72). Identifying the
meaning of a publication, and thus whether it is false and defamatory, is a
question of law for the court. Polk Cnty. Publ’g, 685 S.W.3d at 76–77.
11 In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (describing actual
malice standard as requiring that “the statement was made with knowledge of
its falsity or with reckless disregard for its truth”).

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relying on identified content to contend that a defendant was the source
of the defamation, a plaintiff must show the requisite level of intent for
an initial publication.
The certified questions and the parties focus on liability for
republication. But Roe attempts to hold Patterson—through his
putative agent Colter—directly liable for the publication of the allegedly
defamatory material in the donor letter. Thus, the publication of the
donor letter is the initial publication, and Roe must show that Colter
intended or knew that the defamatory statements in the donor letter
would be published. 12
In answering the first certified question, we do not address the
circumstances in which an original defamer may be held liable for
republication of defamatory material once a plaintiff establishes liability
for an identified publication. In limited circumstances, the Restatement
would impose liability for reasonably foreseeable republications. 13 A
century ago, some appellate cases suggested such an expansive view of

12 Roe does not allege that Colter recklessly failed to heed the risk of

publication, but rather that he actively participated in drafting the letter and
transmitting it to a wide audience. Given the nature of the allegations of this
case, we need not decide whether liability can arise in circumstances that do
not demonstrate intentional or knowing publication. See Restatement (Second)
of Torts § 577 cmt. k.
13 “The publication of a libel or slander is a legal cause of any special

harm resulting from its repetition by a third person if, but only if, (a) the third
person was privileged to repeat it, or (b) the repetition was authorized or
intended by the original defamer, or (c) the repetition was reasonably to be
expected.” Id. § 576.

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foreseeability. 14 In the modern era, however, other state high courts
have rejected or narrowed the circumstances in which repetition may be
foreseeable. In Geraci v. Probst, for example, the defendant defamed his
former business partner to a local government entity. 15 Three years
later, after the plaintiff had sued for defamation, a newspaper published
an article regarding the government’s investigation. The Court of
Appeals for New York held that the article was not a basis for liability
for additional damages because the defendant never spoke to the
reporters or otherwise widely disseminated the defamation. 16
With facts that contrast to those in Geraci, two state high courts
have permitted repetition damages when the original speaker furnished
the defamatory material to the news media with the expectation of the
material’s publication. 17

14 E.g., Sw. Tel. & Tel. Co. v. Long, 183 S.W. 421, 428 (Tex. App.—Austin

1915, no writ) (“He who utters a slander, especially against the reputation of a
woman for chastity, must know that he is opening a veritable Pandora’s box.
He must realize that he is turning loose, as it were, the down of thistle, and
ought not to be heard to say that he is not responsible for the wind’s scattering
it abroad.”).
15 938 N.E.2d 917 (N.Y. 2010).

Id. at 921; see also Pulliam, 406 S.W.2d at 643 (“The defendants
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would not be liable, however, for any republication or dissemination of the
communication by the plaintiff, or which resulted from the independent or
unauthorized acts of others into whose hands the statement came . . . .”).
17 Barnette v. Wilson, 706 So. 2d 1164, 1166–67 (Ala. 1997) (answering

certified question that a person who publishes a slander at a press conference
is responsible for damages caused by the expected and intended repetition of
the slander by the media); Mitchell v. Superior Ct., 690 P.2d 625, 633 (Cal.
1984) (“In our opinion, if a source acting with actual malice furnishes
defamatory material to a publisher with the expectation that the material

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Roe did not plead special damages arising from a particular
republication of the donor letter, and her defamation claim rests on the
statements in the letter as the initial defamatory publication. We
therefore do not address the precise mental state required to find
liability based on further repetition of the defamatory material. 18
III
Having answered the first question in the affirmative, we turn to
the Fifth Circuit’s second question, which asks whether a defamation
plaintiff must identify a specific statement by the defendant to survive
summary judgment when the plaintiff’s claim is that the defendant
provided defamatory material for publication. 19

(either verbatim or in substance) will be published, the source should be liable
for the publication.”).
18 When the subject matter is defamatory per se, the general rule is that

the plaintiff may recover general damages from the initial defamation and
special damages from republication. See Hancock, 400 S.W.3d at 65–66 (noting
that juries may presume general damages in defamation per se cases when the
speech is not a matter of public concern); Restatement (Second) of Torts § 576
cmt. a (permitting claims for special harm resulting from reasonably expected
repetitions). The donor letter accuses Roe of having made a false report to the
police—that is, having committed a crime; if false, such a statement may
qualify as defamatory per se. See Lipsky, 460 S.W.3d at 596 (“Accusing
someone of a crime, of having a foul or loathsome disease, or of engaging in
serious sexual misconduct are examples of defamation per se.”); Tex. Penal
Code § 37.08 (making it an offense to knowingly make a false statement to law
enforcement that is material to a criminal investigation).
19 Citing Belo v. Fuller, 19 S.W. 616, 617 (Tex. [Comm’n Op.] 1892), Roe

argues that a defendant may be liable for any defamatory publication that he
participates in making. Belo suggests that a defendant who aids, assists, or
advises the publication of defamatory material may be liable. Id. Mere
presence for the publication of a defamation, however, will not cause liability
to attach. See Bentley v. Bunton, 94 S.W.3d 561, 586 (Tex. 2002).

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Roe contends that a defamation plaintiff need not prove a precise
phrase or statement made in contributing to a defamatory publication if
the evidence demonstrates that the defendant was the source of the
identified defamatory statements. Patterson responds that Roe must
identify the specific slanderous statements that a defendant made in
providing defamatory material for publication.
In some cases, the parties do not dispute the source of allegedly
defamatory statements. In others, the question can remain—as it does
in this case—whether a particular defendant is responsible for the
publication of identified statements alleged to be defamatory. Because a
defendant may direct the publication of defamatory information orally
or through forms of undiscoverable communication, we conclude that a
plaintiff, having identified a defamatory statement, must show that the
defendant was the source of the statement. A plaintiff need not adduce
evidence of the specifics of an underlying communication, however, so
long as the evidence shows that the defendant was the source of the
identified communication.
The plaintiff may meet this burden through direct or
circumstantial evidence. A “fact is established by circumstantial
evidence when the fact may be fairly and reasonably inferred from other
facts” adduced as evidence. 20 Evidence that the defendant was the
source of defamatory content may include proof that the defendant made
the same defamatory statement to others, that the defendant had
unique or personal knowledge of the defamatory content and its details,

20 Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).

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or that the publishers relied on the defendant to support the
truthfulness of the allegedly defamatory statements. Evidence that
amounts to mere speculation or surmise does not suffice to survive
summary judgment, for this or any other tort. 21
* * *
To prove a claim for defamation for an identified publication, a
plaintiff must show that the defendant supplied the defamatory content
through direct or circumstantial evidence. That evidence need not
establish verbatim the underlying provision of defamatory content so
long as the evidence demonstrates that the defendant was a source of
the identified statements alleged to be defamatory. We answer yes to
the Fifth Circuit’s certified questions and leave the application of the
law to the facts of this case to that court.

Jane N. Bland
Justice

OPINION DELIVERED: February 14, 2025

21 E.g., Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (“To

raise a genuine issue of material fact, however, the evidence must transcend
mere suspicion.”).

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