The defamation lawsuit filed by billionaire Kelcy Warren against Robert “Beto” O’Rourke remains ongoing, with the latest action taking place in front of a panel of state appellate judges where the politician is seeking a motion to dismiss.
At issue is O’Rourke’s assertion on the campaign trail of his unsuccessful 2022 gubernatorial bid that Warren had “bribed” the sitting governor, Greg Abbott, with a lavish political contribution.
Warren is no stranger to Texas politics or political giving. The pipeline magnate regularly donates five- and six-figure sums to Texas Republicans and made major headlines when he contributed a total of $6 million to a constellation of super PACs supporting Rick Perry’s unsuccessful bid for president in 2016.
In June 2021, Warren donated $1 million to Gov. Abbott’s campaign, which O’Rourke then weaponized on the campaign trail.
Arguing before a three-judge panel of the Texas Third Court of Appeals, O’Rourke’s lawyer, Chad Dunn, asserted that scrutiny of political contributions and elected officials was protected speech under the First Amendment.
“The minute you give $1 million to a gubernatorial candidate in one of the largest states, in Texas, you can expect attention,” Dunn argued. “Mr. O’Rourke’s attention was not libel or slander.”
However, Warren’s attorney, Dean Pamphilis, focused his arguments on the fact that O’Rourke’s “attention” was not just on the contribution and the governor but also on Warren, who is a private citizen who contributed in accordance with Texas law.
“What they’re asking you to do here is to conclude that a million-dollar — or any — campaign contribution makes you a public figure, opens you up to attack that you can’t defend against unless you prove actual malice, and there is no precedent for that whatsoever,” Pamphilis said.
Byrne probed O’Rourke’s lawyer about whether private citizens become “limited purpose public figures” at a certain level of political contribution and if so, at what level.
The U.S. Supreme Court previously defined a limited-purpose public figure as an individual “who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.”
Dunn pushed the notion further, arguing that it is not only the amount in question but Warren’s control of an energy company that has been the subject of widescale media coverage.
“It’s all these facts together that say this is a person who thrust himself into the public sphere,” Dunn concluded.
Justice Gisela Triana expressed sympathy for O’Rourke’s position when she suggested that his claims of bribery by Warren were no more than the Democratic candidate repeating what he had read in the news media.
Pamphilis again pointed to the law, citing Texas campaign finance regulations do not limit contributions from individuals to candidates or causes.
He went on to say O’Rourke’s public comments created a controversy around whether his client was “a criminal or not” — something the news media apparently never did when reporting on Warren’s legal, albeit large, contribution to Abbott.
In essence, Pamphilis argued, O’Rourke did not simply repeat what he had heard but attached a criminal motive.
No action was taken as the panel left the motion to dismiss pending for now.
