Texas Monthly, LLC and Steven Monacelli v. Michelle Haas

NUMBER 13-25-00005-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TEXAS MONTHLY, LLC
AND STEVEN MONACELLI, Appellants,

v.

MICHELLE HAAS, Appellee.

ON APPEAL FROM THE 319TH DISTRICT COURT
OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Fonseca

Appellee Michelle Haas sued appellants Texas Monthly, LLC and Steven

Monacelli, alleging she was defamed by an article appearing in the December 7, 2023

print edition of Texas Monthly and on the publication’s website. Appellants moved to

dismiss under the Texas Citizens Participation Act (TCPA), and the motion was denied
by operation of law. By a single issue in this appeal, appellants argue the motion should

have been granted. Because we agree, we reverse and remand.

I. BACKGROUND

The article at issue was authored by Monacelli, a freelance investigative journalist,

and is entitled “The Texas Historical Commission Removed Books on Racism and

Slavery From Plantation Gift Shops.” The subhead reads: “An agency spokesperson

claimed that the move had nothing to do with politics. Internal emails show otherwise.” As

of the date of publication, the text of the article was as follows, in its entirety:

After visiting the Varner-Hogg plantation an hour south of Houston, amateur
historian Michelle Haas was incensed by what she had seen. At an exhibit
that details the farm’s use as a sugar plantation worked by at least 66 slaves
in the early nineteenth century, she’d watched an informational video. To
her mind, it focused too much on slavery at the site and not enough on the
Hogg family, which had turned its former home into a museum celebrating
Texas history. She’d also seen books in the visitor center gift shop written
by Carol Anderson and lbram X. Kendi, two Black academic historians who
have been outspoken on the issue of systemic racism. Outraged, she
emailed David Gravelle, a board member of the Texas Historical
Commission [THC], the agency that oversees historical sites at the direction
of leaders appointed by Governor Greg Abbott. “What a s—show is this
video,” Haas wrote on September 2, 2022. “Add to that the fact that the
activist staff member doing the buying for the gift shop thinks lbram X. Kendi
and White Rage have a place at a historic site.”

Over the next eight months, Haas continued to email Gravelle,
advocating for such books to be removed. In turn, Gravelle, a marketing
executive based in Dallas, took up the cause internally at [THC], calling on
agency staff to do away with the titles Haas didn’t think belonged at the gift
shops. By November of this year, it appeared Haas’s demands were met.
[THC] no longer sells White Rage by Anderson or Stamped From the
Beginning by Kendi, or 23 other works to which Haas later objected, at two
former slave plantations in Brazoria County, including Varner-Hogg. Among
the literature no longer available for purchase is an autobiography of a slave
girl, a book of Texas slave narratives, the celebrated novel Roots by Alex
Haley, and the National Book Award-winning Invisible Man by Ralph Ellison.

[THC] did not provide Texas Monthly with a list of titles no longer for
sale. Chris Florance, a spokesperson for the agency, said many books were
removed from the historical sites as part of an effort that he said was

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launched in March to reduce inventory as the agency transitions to a new
point-of-sale software system. Emails acquired by Texas Monthly through
an open-records request reveal, however, that Gravelle was concerned
about the way those books presented Texas history and about potential
attention from state lawmakers over what books were available for
purchase. The emails also show that he had raised those concerns in
February, before the agency decided to change its software system.

Haas, a graphic designer from Corpus Christi who sells Texas-
themed merchandise, has spent years critiquing historical narratives about
slavery. In 2006, she cofounded Copano Bay Press, an independent
publishing house specializing in firsthand accounts of Texas history. She
wrote and published 200 Years a Fraud, a full annotation of Solomon
Northup’s 1853 memoir Twelve Years a Slave, which was made into an
Oscar-winning film in 2013. In her book, Haas disputes Northup’s account
of his life and argues that many U.S. histories are overly harsh to the South
and do not acknowledge that slavery was “a socially acceptable and
economically worthwhile practice worldwide at the time our thirteen colonies
arose.”

In 2022, Haas launched the Texas History Trust, a nonprofit
advocacy organization that aims to fight back against what it describes as
“historical societies, university history departments and authors who warp
Texas history based on feelings, not the historical record.” She has
protested the inclusion of so-called “woke ideology,” “neo-Marxist”
influence, and critical race theory in Texas schools, even though CRT—a
framework for examining systemic racism, for example in lending patterns—
is not taught below the college level in the Lone Star State.

Haas says that Gravelle, who declined multiple requests from Texas
Monthly for an interview, was familiar with her before her September 2022
email about the Varner-Hogg plantation. According to Haas, Gravelle is
listed on the Texas History Trust’s mailing list and has purchased books
from Copano Bay Press. She felt confident that he would be an ally in her
effort to get books she doesn’t like removed from the plantation site. “We
don’t go yachting together or anything,” Haas said. “[But] he’s someone
who’s friendly to us.”

Internal [THC] emails reveal her assumption was correct. In the first
week of February, a few months after Haas reached out, Gravelle emailed
three of the commission’s board members, including the chairman, and two
high-ranking staff members, citing concerns “about some of the books (and
perhaps other items) and the interpretation at our sites that are not about
accurate Texas history, but seem to wander off into present social issues.”
Gravelle wrote that he was inquiring because he’d seen a video that
questioned the sale of certain books at historical sites, an apparent
reference to a recording produced by Haas and posted on the Texas History

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Trust’s YouTube channel in December 2022. Gravelle made clear in emails
that he feared reprisal from the Legislature based on which books were for
sale. “I believe we need to take immediate steps to learn the extent of this
problem and articulate a remedy, including the source of how this material
was approved,” Gravelle wrote in the February email. “There is a good
chance it will end up in the open forum of the Lege,” he wrote, adding that
he was concerned about “the inevitable press that would be generated due
[to] the emotional nature of this national argument if we do not address it
quickly. And I mean quickly.”

Matters were not resolved speedily enough for Haas, however. In
mid-April, she emailed John Nau III, the chairman of [THC], as well as
multiple staff members, and forwarded the email to Gravelle. Haas
reiterated her concerns about the informational video she’d seen at the
Varner-Hogg plantation, and included a list of 23 books she flagged that
were available at the nearby Levi Jordan historical plantation. “I attach a list
of the books available with the publisher’s description of each,” Haas wrote.
“You may assess for yourselves how relevant they are to the history of
Brazoria County.” Most of the 23 books Haas listed were written by Black
authors. Haas also criticized the Varner-Hogg museum for not focusing
enough on slaves who had perpetrated violence against each other at the
behest of their slavers. “Several of the static exhibits at Varner detail the
torture inflicted upon the enslaved people who labored there but omit the
fact that the chief torturer was one of the slaves,” Haas wrote.

On May 3, Gravelle forwarded the list of books to the board member
who leads the historic sites committee, John Crain, president and CEO of
the Summerlee Foundation, an animal-welfare nonprofit, in Dallas. Gravelle
wrote that “there is no question these books are not about Texas history.”
That description wasn’t accurate: one of the 23 titles on the list, for example,
was “Remembering the Days of Sorrow,” which features testimony from
numerous Texan slaves.

Gravelle then sought to craft a seemingly neutral policy to remove
the specific books to which Haas objected. “Honestly, it is not hard to fix,”
Gravelle wrote to Crain. “Create a policy which focuses on [how] the only
books/gifts subjects that can be placed in a site should be about Texas
history. Put the non-historical books in a box and remove them. Waiting on
the bureaucracy to move isn’t good enough. The visitor who visits a gift
store today will get an impression from the books. Is it the one we want them
to have?” Gravelle concluded, “As Committee Chair, maybe you can help.”

Crain, an Abbott campaign donor who was appointed by the
governor to the commission, did not respond directly to Gravelle via email.
But he noted in an email related to Texas Monthly’s record request that
typically he handles inquiries such as Gravelle’s in person. “As a general
practice, I bring these issue[s] to the Chairman. Normally, this is shared

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informally at meetings.” Nau, the chairman, is also a two-term Abbott
appointee who has donated more than $1.8 million to Abbott’s campaigns
since 2015. Neither Crain nor Nau responded to multiple requests for
interviews.

Gravelle also shared his concerns about books with commissioner
Donna Bahorich, a former State Board of Education member and former
campaign manager for Lieutenant Governor Dan Patrick. Bahorich also
declined multiple requests from Texas Monthly for an interview. By the end
of May, Gravelle’s recommendation to remove books became a policy. The
commission staff created an inventory reduction plan, outlining proposals to
halt all purchasing for [THC] stores, sell merchandise at a markdown, and
identify stock for removal. The deputy executive director of historic sites,
Joseph Bell, sent an email to Gravelle confirming that “non-Texas-history
books” had been removed as part of a broader inventory reduction effort,
per Gravelle’s request.

According to an internal [THC] spreadsheet, the two plantation sites
had 87 titles available for sale as of June 12. As of November 22, that
number had dropped to 39, and all 23 works on Haas’s list, as well as White
Rage and one Kendi book, Stamped From the Beginning, were no longer
available for purchase at either plantation site. Whether the books were
removed and donated, destroyed, or simply sold and never restocked, is
unclear. Florance did not respond to questions about what titles were
removed and what became of them.

Haas took credit for the removal of the books in an email to
supporters of the Texas History Trust. “Hey . . . remember those politically
charged books being sold to the public at state-run history sites?” Haas
wrote. “Those are gone now. We worked hard to make that happen.” In an
interview with Texas Monthly, however, she couldn’t name the exact titles
that had been removed from the sites. The video at the Varner-Hogg
plantation that she criticized can still be viewed at the visitor center, at least
for now.

When asked if it was her intention that historical books about slavery
be removed from sites, Haas demurred. “There’s always the possibility of
overreach or scorched earth,” Haas said. “What I wouldn’t want is for
someone to say, ‘let’s just print that list out and take it over there and go pull
those books.’ What I wanted was for them to evaluate each of these titles
on their merit for inclusion at state-run history sites.”

That culturally significant books about slavery were apparently made
casualties of the culture war deeply concerns historians such as Michael
Phillips, who is writing a book on eugenics in Texas, was recently a senior
fellow at Southern Methodist University, and who filed an initial records
request regarding the commission’s efforts to remove the works from gift

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shops. “We have an appalling situation,” Phillips said. “The idea that these
books are irrelevant somehow is really striking.” He added, “to eliminate
books about racism at slave plantation sites is like doing an Auschwitz tour
and never mentioning antisemitism.”

Out of the 39 books currently available across the two Brazoria
County plantation sites, only a handful focus on issues of racism and white
supremacy. Visitors won’t find Roots, but they can buy several books that
one would not expect to see, following Gravelle’s policy of excluding “non-
Texas-history books.” They include a guide to birds in the state, a book of
wildlife photo portraits, and a southern cookbook.

Subsequently, the article was updated, as detailed in the following notes which were

appended to the online version of the article:

Correction, December 12, 2023: A prior version of this story reported
Michelle Haas emailed a list of books that she objected to that were
available for purchase at the Levi Jordan historical plantation to [THC]
Chairman John Nau Ill. She addressed the email to him and other
commissioners, but did not include him as a direct recipient.

Update, December 12, 2023: This story has been updated to clarify Haas’s
employment and to include more context on the 23 books she emailed the
commission about, her thinking on why they might be inappropriate, and her
suggestions for replacement titles that could be sold.

Update, January 27, 2024: This story has been updated to clarify what
Haas says were her intentions in sending a list of books available at the
Levi Jordan gift shop to David Gravelle. Haas did not ask for books about
slavery, specifically, to be removed from the site, although the list of titles
that she flagged to the commission, and that are no longer available for sale
at the site, include works about slavery as well as ones about racism.

On June 17, 2024, Haas filed suit against appellants, alleging the article “distorts

the facts” and “falsely portrays [her] efforts to engage [THC] regarding the relevancy of

books sold in the gift shops of two of [THC]’s historical sites.” The petition argued that

“[a]ny statement in the article that explicitly states or insinuates that [Haas] objected to

books on slavery, asserted that the historical sites focus too much on slavery, or

advocated for the removal of any book on slavery is false and defamatory.” Haas alleged

that the article, “even in its revised state, is libelous” and caused damage to her reputation

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and earning capacity, as well as mental anguish.

Appellants filed a motion to dismiss and for sanctions pursuant to the TCPA on

September 6, 2024. In the motion, they argued that Haas “has not identified any

actionable statements” in the article and that the article was not published with “actual

malice.” Appellants attached evidence including a declaration by Monacelli, excerpts from

200 Years a Fraud, and the original and updated versions of the article at issue. Haas

filed a response, which included her affidavit and printouts from various websites.

Appellants filed a reply. After a hearing on November 20, 2024, the motion to dismiss was

denied by operation of law. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005, .008(a).

This interlocutory appeal followed. See id. § 51.014(a)(12) (permitting immediate

interlocutory appeal of denial of TCPA motion to dismiss).

II. DISCUSSION

A. TCPA

The TCPA provides a procedural mechanism for the expedited dismissal of a suit

which implicates certain constitutional rights. TEX. CIV. PRAC. & REM. CODE ANN. ch. 27. It

is intended to “protect[] citizens from retaliatory lawsuits that seek to intimidate or silence

them on matters of public concern.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig.

proceeding). To obtain dismissal of a legal action under the TCPA, the defendant has the

initial burden to demonstrate that the “action is based on or is in response to . . . [its]

exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of

association.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1). If the defendant meets

this initial burden, then the plaintiff must establish by “clear and specific evidence a prima

facie case for each essential element of the claim in question” to avoid dismissal. Id.

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§ 27.005(c). Even if the plaintiff makes this showing, the trial court must nevertheless

dismiss the action if the defendant then “establishes an affirmative defense or other

grounds on which the [defendant] is entitled to judgment as a matter of law.” Id.

§ 27.005(d).

A “prima facie case” means “evidence that is legally sufficient to establish a claim

as factually true if it is not countered.” S & S Emergency Training Sols., Inc. v. Elliott, 564

S.W.3d 843, 847 (Tex. 2018). It represents the “minimum quantity of evidence necessary

to support a rational inference that the allegation of fact is true.” Schimmel v. McGregor,

438 S.W.3d 847, 855 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). In the context

of the TCPA, “clear” has been interpreted to mean “unambiguous,” “sure,” or “free from

doubt,” while “specific” has been interpreted to mean “explicit” or “relating to a particular

named thing.” In re Lipsky, 460 S.W.3d at 590.

Our review of a ruling on a TCPA motion to dismiss is de novo. Entravision

Commc’ns Corp. v. Salinas, 487 S.W.3d 276, 281 (Tex. App.—Corpus Christi–Edinburg

2016, pet. denied). We review the evidence in the light most favorable to the plaintiff.

Schimmel, 438 S.W.3d at 855–56. In determining whether a legal action is “subject to or

should be dismissed under” the TCPA, “the court shall consider the pleadings, evidence

a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting

and opposing affidavits stating the facts on which the liability or defense is based.” TEX.

CIV. PRAC. & REM. CODE ANN. § 27.006(a).

B. Defamation

The elements of a defamation cause of action are “(1) the publication of a false

statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with

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the requisite degree of fault, and (4) damages, in some cases.” In re Lipsky, 460 S.W.3d

at 593. “Because of the importance of cultivating and protecting freedom of expression,

the plaintiff bears the burden of proving falsity if,” as is undisputed here, “the alleged

defamatory statements were made by a media defendant over a matter of public

concern.” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017).

A statement is defamatory if it “tends to injure a living person’s reputation and

thereby expose the person to public hatred, contempt or ridicule, or financial injury or to

impeach any person’s honesty, integrity, virtue, or reputation.” TEX. CIV. PRAC. & REM.

CODE ANN. § 73.001 (defining libel as “defamation expressed in written or other graphic

form”); see Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 623–24 (Tex. 2018). A

statement does not give rise to liability if it is either “not verifiable as false” or if “the ‘entire

context in which it was made’ discloses that it is merely an opinion masquerading as a

fact.” Tatum, 554 S.W.3d at 624 (quoting Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.

2002)); see TEX. CIV. PRAC. & REM. CODE ANN. § 73.005(a) (“The truth of the statement in

the publication on which an action for libel is based is a defense to the action.”); In re

Lubbock, 624 S.W.3d 506, 515 (Tex. 2021) (orig. proceeding) (“[T]rue statements cannot

form the basis of a defamation complaint.”).

The “requisite degree of fault” depends on whether the person allegedly defamed

is a private individual or a public figure. In re Lipsky, 460 S.W.3d at 593. Where the plaintiff

is a public figure, it must be shown that the defendant’s statements were made with

“actual malice.” Id. “‘Actual malice’ in this context means that the statement was made

with knowledge of its falsity or with reckless disregard for its truth.” Id. It “concerns the

defendant’s attitude toward the truth, not toward the plaintiff.” Freedom Newspapers of

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Tex. v. Cantu, 168 S.W.3d 847, 858 (Tex. 2005); Huckabee v. Time Warner Ent. Co., 19

S.W.3d 413, 420 (Tex. 2000) (noting actual malice does not include “ill-will, spite, or evil

motive”). The actual malice element is “relatively demanding” and “honors our ‘profound

national commitment to the principle that debate on public issues should be uninhibited,

robust, and wide-open, and that it may well include vehement, caustic, and sometimes

unpleasantly sharp attacks’ on public figures.’” Forbes Inc. v. Granada Biosciences, Inc.,

124 S.W.3d 167, 171 (Tex. 2003) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)).

For purposes of defamation law, a plaintiff may be a general-purpose public figure

or a limited-purpose public figure. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571

(Tex. 1998). “General-purpose public figures are those individuals who have achieved

such pervasive fame or notoriety that they become public figures for all purposes and in

all contexts.” Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). “Limited-

purpose public figures, on the other hand, are only public figures for a limited range of

issues surrounding a particular public controversy.” Id. A defamation plaintiff will be

considered a limited-purpose public figure if: (1) the controversy at issue is “public both

in the sense that people are discussing it and people other than the immediate

participants in the controversy are likely to feel the impact of its resolution”; (2) the plaintiff

has “more than a trivial or tangential role in the controversy”; and (3) the alleged

defamation is “germane to the plaintiff’s participation in the controversy.” Id. (citing Trotter

v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir. 1987)); see ZYZY Corp. v.

Hernandez, 345 S.W.3d 452, 459 (Tex. App.—San Antonio 2011, no pet.) (“[T]o be

considered a limited-purpose public figure for defamation purposes, one involved in such

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a public controversy must have more than a tangential role, must seek out publicity, try

to influence the outcome of the controversy by publishing his views, or engage in activities

that necessarily increase his exposure to injury to his reputation.”).

C. Analysis

There is no dispute that Haas’s claims are “based on” or “in response to”

appellants’ exercise of the right of free speech1; thus, the burden was on Haas to produce

“clear and specific evidence” establishing a “prima facie case for each essential element”

of her claim, including falsity. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); D Magazine

Partners, 529 S.W.3d at 434. Moreover, Haas concedes she is a “limited-purpose public

figure” for purposes of her suit and therefore had the burden to produce clear and specific

evidence of actual malice as part of her prima facie case. See WFAA-TV, Inc., 978 S.W.2d

at 571.

In her petition, Haas alleged that the subject article’s “core defamatory claim” was

that she “advocated for removing of slavery books from plantation gift shops.” She

claimed the article falsely stated that she “objected to” all of the books sold at the Levi

Jordan plantation gift shop and that her “demands were met” when those books were

removed. Haas further complained about the article’s statements that she was “incensed”

by the video she saw at the Varner-Hogg plantation and that she believed the video

“focused too much on slavery at the site.”2

1 “Exercise of the right of free speech” means “a communication made in connection with a matter

of public concern.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). It is undisputed that the subject article
meets this definition.
2 Haas also complained in her petition about the article’s statement that she has “spent years

critiquing historical narratives about slavery” and its synopsis of her book 200 Years a Fraud. However, she
did not address those statements in her response to the motion to dismiss, and she does not address them
on appeal.

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Appellants argued in their TCPA motion to dismiss, among other things, that the

subject statements were not false, that Haas has no evidence of actual malice, and that

its evidence affirmatively negates actual malice. They attached an affidavit by Monacelli

stating, in relevant part, that he interviewed Haas for two hours on November 14, 2023,

prior to publication of the article. An audio recording of the interview was attached to the

affidavit.3

Monacelli stated that he is not aware of any false statement in the article as

originally published. Specifically with respect to the article’s statements that Haas was

“incensed” by the visitor’s center video and that she believed the video “focused too much

on slavery,” Monacelli asserted this was an “accurate (and at least a rational)

interpretation” of Haas’s September 2, 2022 email to Gravelle, a copy of which was

attached to the affidavit. In the email, Haas advised Gravelle that the video was “[n]ot

balanced at all. It is plainly stated [in the video] that the goal is to NOT talk about the

museum the Hoggs created and to place the focus on slavery. But that’s not the entire

story of the site.” Haas also complained to Gravelle about a portion of the video in which

a commentator “imagines [how] slaves felt”—she opined that “[t]he mention of so many

‘feelings’ is ridiculous. . . . That contributes jack shit to the historical narrative, which is a

factually rich one.” Finally, Haas complained in the email about the presence of “lbram X.

Kendi and White Rage” at the gift shop, without explaining why that author and work were

objectionable.

Monacelli averred that the article “did not state, nor did I intend for it to state, that

3 Appellants’ TCPA motion to dismiss also included an affidavit by Benjamin Rowen, the
publication’s editor, detailing Haas’s correspondence to him after publication of the article, which led to the
“[c]orrection” and “[u]pdates” set forth above.

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Haas advocated for removing all slavery books from the historical sites.” Instead, based

on his review of Haas’s emails and YouTube videos, he believed she “advocated for

removing” “several” books concerning “racism and slavery”—such as White Rage and

Stamped From the Beginning—all of which were included in the list of twenty-three titles

she emailed to THC commissioners.

A copy of that email, dated April 19, 2023, was attached to Monacelli’s affidavit. In

it, Haas stated that the gift shops at both historical sites were “full of modern, highly

politicized books” and that the shop at the Levi Jordan plantation in particular “has

increased its fiction and radical black feminism/memoir sections threefold.” She invited

the commissioners to “assess for yourselves how relevant [the twenty-three books] are

to the history of Brazoria County,” and she posed the following rhetorical questions:

Why is the State of Texas selling an afro-vegan cookbook at a state historic
site? Or fiction about people living in Chicago in the 1890s? What do books
written and edited by Ibram X. Kendi have to do with the Varners, Pattons
or Hoggs? Do the sale of such books and the promulgation of skewed site
interpretation represent Texas well? What policies may be implemented to
prevent us from the embarrassment of presenting activism instead of history
faithful to the historical record at our cherished sites?

In her response to the motion to dismiss, on the issue of actual malice, Haas

principally pointed to the audio recording of Monacelli’s pre-publication interview with her.

Haas told Monacelli in the interview that she did not intend for all of the books on the list

to be removed but rather intended for the THC to evaluate each of them individually.

Instead, she told him that “the most important thing that ever happened [at these sites]

was slavery” and that at least one of the books which was on the list—Remembering the

Days of Sorrow, “an edited selection of Texas WPA slave narratives”—was indeed

“representative of the history of that site” and “should be there” at the gift shop. Haas also

attached her own affidavit, stating in relevant part:

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2. [“]On Wednesday April 19, 2023, I sent an email to the [THC] by and
through its Executive Assistant, Paige Neumann, and attached a
document titled “Books for sale in the Levi Jordan gift sh[o]p as of
April 02, 2023” (the “List”). The email and accompanying List are
attached to Defendants’ Motion to Dismiss as Exhibit A-2.

3. [“]The List includes all of the books I believed were available for sale
at the Levi Jordan Plantation gift shop on the date reflected on the
List—April 2, 2023. The books on display at the Levi Jordan
Plantation gift shop on April 2, 2023 were photographed on that day
by my business associate at the time, Mark Pusateri. If other books
not included in the photographs were located at the Levi Jordan
Plantation on April 2, 2023, they were not visible to the public at the
time the photographs were taken.”

We cannot conclude that Haas’s affidavit or the unsworn representations she

made in her pre-publication interview with Monacelli constitute “clear and specific”

evidence that the subject statements were false, that appellants knew about their falsity,

or that they were reckless about their truth. First, Haas did not actually deny in her affidavit

that she “objected to” all twenty-three books on the list she sent to THC, nor did she deny

that she “advocated” for their removal. Further, she did not deny in her affidavit that she

was “incensed” or “[o]utraged” by the visitor’s center video she viewed. More broadly, she

did not deny the truth of what she claims is the “core defamatory claim” against her in the

article—i.e., that she “advocated for removing of slavery books from plantation gift shops.”

Second, Haas is correct that the interview recording demonstrates that, prior to

publication, Monacelli was aware that she was taking the position that she did not intend

for all twenty-three books on her list to be removed. However, at the same time, Monacelli

was also aware of Haas’s September 2022 and April 2023 emails, both of which indicate

that her opposition to the material at the historic sites was broad-based; that it

encompassed books related to slavery and the experiences of Texas slaves; and that it

was motivated by a desire to “represent Texas well” and avoid “embarrassment.” For

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instance, in her email to Gravelle, Haas complained that the visitor’s center video was

“[n]ot balanced” in part because it “place[d] the focus on slavery” and speculated as to

the “feelings” of slaves at the plantation. She also vehemently objected to the presence

of two specific books based solely on the name of the author and the title.

Haas averred in her affidavit that the list she sent to THC commissioners was

simply a catalog of all books “visible to the public” at the Levi Jordan plantation gift shop

as of April 2, 2023. But there is no evidence demonstrating that Monacelli subjectively

knew or believed that at the time of publication. Instead, according to the article, Monacelli

obtained an “internal [THC] spreadsheet” indicating that there were eighty-seven titles

available at the two sites as of June 2023, and 39 available as of November 2023.

Moreover, Monacelli was aware that Haas’s organization, Texas History Trust, had

explicitly taken credit for the removal of “politically charged books” from the gift shops in

an email to supporters. In any event, there is no dispute that the article accurately set

forth the representations Haas made to Monacelli in her interview.

In light of all the information available to him, Monacelli could have reasonably

discerned that Haas intended for all twenty-three books on her list to be removed,

including the ones on the topic of slavery, despite her protestations to the contrary. Even

assuming Monacelli was mistaken in that regard, Haas has not met her “relatively

demanding” burden to produce clear and specific evidence of actual malice. See Freedom

Newspapers, 168 S.W.3d at 855 (“An understandable misinterpretation of ambiguous

facts does not show actual malice.”); Forbes Inc., 124 S.W.3d at 171; Bentley, 94 S.W.3d

at 594 (“[A]ctual malice cannot be based on a misinterpretation of ambiguous facts that

is not unreasonably erroneous.”); see also St. Amant v. Thompson, 390 U.S. 727, 732

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(1968) (“Neither lies nor false communications serve the ends of the First Amendment,

and no one suggests their desirability or further proliferation. But to insure the

ascertainment and publication of the truth about public affairs, it is essential that the First

Amendment protect some erroneous publications as well as true ones.”). The evidence,

viewed in the light most favorable to Haas, does not establish that Monacelli actually

harbored significant doubt about the truth of the challenged statements. See Bentley, 94

S.W.3d at 596 (“[T]he actual malice standard requires that a defendant have, subjectively,

significant doubt about the truth of his statements at the time they are made.”).

For the foregoing reasons, the trial court erred in denying appellants’ TCPA motion

to dismiss. We sustain appellants’ sole issue on appeal.

III. CONCLUSION

The trial court’s judgment is reversed. We remand the cause to the trial court with

instructions to (1) grant appellants’ TCPA motion to dismiss, (2) award court costs and

reasonable attorney’s fees to appellants in accordance with the statute, (3) consider

whether to assess sanctions against Haas in accordance with the statute. See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.009(a).

YSMAEL D. FONSECA
Justice

Delivered and filed on the
16th day of October, 2025.

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