A Texas court has dismissed a lawsuit filed by D Magazine and Tim Rogers, the magazine’s editor. According to a press release, it was dismissed, citing the Texas Citizens Participation Act, or TCPA. The TCPA provides protections for citizens of Texas from lawsuits intending to silence unpopular opinions.
The case arose after a local writer, using the pen name Maya Pembledon, began researching an article critical of the advertising, managerial make-up, and story topics the magazine provides. Pembledon claimed that Rogers, among others in leadership, focuses on white-owned advertisers and promotes stories that minimize people of color.
In her work examining racial bias in media advertising, Pembledon contacted several businesses featured in articles and advertised in the magazine to ask questions about potential racial preference on the part of Rogers and other editors at D Magazine and similar publications.
Judge Jim Johnson made the ruling of the 431st District Court in Denton, Texas. Johnson cited Texas laws that prevent businesses from using legal proceedings to silence and dissuade members of the public from exercising their first amendment rights.
“The TCPA is intended to prevent litigation that would silence people. And so at its core, to me, this case is about that,” said Judge Johnson in issuing his ruling on the case.
TCPA rules will allow Pembledon to recover attorney’s fees spent defending herself against the lawsuit if the Judge so decides. However, the ruling will not prevent further “harassment” of Pembledon by Rogers or other members of Allison Publishing, the parent company that owns D Magazine.
“I am grateful that the court saw fit to dismiss this racist and frivolous attempt to silence me, a black female independent writer and single mother,” Pembledon said in a statement following the ruling. “Tim Rogers and D Magazine should be ashamed of having pursued this attempt to silence my voice all because I asked questions about the lack of diversity in management, ownership, and features at the publication. I hope this defeat will encourage Mr. Rogers to halt his harassment of me and of all other people of color.”
The TCPA was signed into law by Gov. Rick Perry in 2011 as a tool to prevent disparagement lawsuits filed by businesses attempting to silence critics, particularly in relation to online reviews.
Under TCPA rules, the defendant, in this case, Pembledon, must show that the lawsuit against them is based on or in response to the defendant’s exercise of freedom of speech. Once that demonstration is confirmed, responsibility shifts to the plaintiff, D Magazine and Rogers in this matter to show proof that they are exempt from TCPA protections or to establish clear and specific evidence to support their claims of defamation.
Rogers’ inability to show this clear and specific evidence is what led to the case’s dismissal.
Requests for comment from D Magazine and the law firm that represented Pembledon have not been responded to at the time of this publication.
Note: This article was updated on October 6, 2021, at 12:23 pm.