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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
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Experience:  Licensed Texas General Practice Attorney
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In Texas, can a person make a statement like the following

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In Texas, can a person make a statement like the following without repercussions or some recourse under the law?

"I have seen you in person and while I understand that you may have had some tough things in life to deal with as well as resenting the fact that you were not one of the 'pretty girls' ... I think that you will be a lot happier in life if you simply understood that just because you are ugly on the outside doesn't mean that you have to be Ugly on the inside."

This was made against my wife in an email and I am less than happy.
Joel Staner

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I am sorry to hear about your situation. I can't imagine that someone would do that to her. That being said, you need to understand that generally speaking, speech is something that is protected (first amendment). Only in certain situations will the law get involved.

ScottyMacEsq :

(1) criminal: the only criminal case that could possibly arise would be under "harassment" but this requires an intent to harass.

ScottyMacEsq :

Texas Penal Code § 42.07. HARASSMENT. (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: (1) initiates communication by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene; (2) threatens, by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property; (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; (5) makes a telephone call and intentionally fails to hang up or disengage the connection; (6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section; or (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

ScottyMacEsq :

Note that there has to be an intent to harass there.

ScottyMacEsq :

You could report this and press charges, but if it was a single one-off communication, and not ongoing, the police probably would not get involved.

ScottyMacEsq :

(2) civil law: If this communication was to her, and no one else, it could not be defamation (slander or libel) because those causes of action require communication to a third party.

ScottyMacEsq :

Further, under defamation law, statements of opinion (however odious they are) would not be actionabel.

ScottyMacEsq :

*actionable

Customer:

This was an email communication that had a distribution of a dozen or so folks. I had the lay-person's idea that this would be libel.

ScottyMacEsq :

Unfortunately if this was the entirety of the email message, it wouldn't constitute libel. Libel requires a false statement of material fact, that causes proveable damages.

ScottyMacEsq :

A statement that someone is not "one of the pretty girls" would be a statement of opinion.

ScottyMacEsq :

Even if that opinion was false, and clearly so, it would still be opinion. For it to be actionable, it would have to be a "material fact".

ScottyMacEsq :

That is, "you got that nose job to make you look pretty" or something, where the person did not get a nose job.

Customer:

...not one of the pretty girls is one thing to my mind... "...just because you are ugly..." is another.

ScottyMacEsq :

I understand. These are clearly statements of opinion.

ScottyMacEsq :

That is, reasonable people can differ as to the attractiveness of an individual.

Customer:

Just for kicks, the entire email is copied below:

Customer:

From: Riz Ilyas <[email protected]>
Date: Tue, Sep 10, 2013 at 12:46 PM
Subject: Re: show marketing
To: XXXXX XXXXX <[email protected]>
Cc: Terrye Branson <[email protected]>, Amy Star <[email protected]>, Sue Weakley <[email protected]>, Walter Henslee <[email protected]>, Malen Dell <[email protected]>, Howard Peet <[email protected]>, "NANCY HOLMAN DC." <[email protected]>, XXXXX XXXXX <[email protected]>, "Cc:" <[email protected]>, Julie Alonzo <[email protected]>




Terrye,

It is sad that you miss the point. The fact is that we had a problem for many years with the board not acting in a way that was ABOVE REPROACH. I am not accusing you in any way, just making a point. Sue was simply relaying what she was hearing from the members. It was not a personal attack in any way.

I do have to say that I am disappointed in your racially charged post on Facebook and your attitude in general. I have seen you in person and while I understand that you may have had some tough things in life to deal with as well as resenting the fact that you were not one of the "pretty girls"...I think you will be a lot happier in life if you simply understood that just because you are ugly on the outside doesn't mean you have to be Ugly on the inside. Lashing out at others and making racist remarks is not going to make you any prettier or happier or richer or whatever it is you so desperately want.



Sincerely,

Riz

ScottyMacEsq :

But whether or not someone had plastic surgery (in my example) is a fact. If it happened, no reasonable person could say that it "didn't" (or vice versa).

ScottyMacEsq :

Now the statement of fact about the posting on Facebook would be actionable if false, because that is a statement that there was a posting on Facebook. It's verifiable. Reasonable people cannot disagree whether there was a posting on Facebook. But reasonable people could disagree with the attractiveness of an individual, which is why that part would be only opinion.

ScottyMacEsq :

Furthermore, in any civil lawsuit you would need to establish "damages". That is, you can't just sue for a million dollars without support as to how the individual actually harmed you to the tune of a million dollars. If there were lost job opportunities, or a hit to her reputation that could be quantified, that could be the basis of asking for damages. But there have to be proveable damages in a specific amount to be able to maintain a civil lawsuit.

Customer:

The "racially charged" post was my wife telling another individual that he should learn to spell before be elects himself teacher of our judges (horse show judges). The guy was blasting the qualifications of our association's judges for our National show coming up next month in Fort Worth. The rabble-rouser (King Riz) who wrote the hateful comment to my wife is the spokesperson for the Latino gentleman who cannot spell and professes to know that this other individual was hurt.

ScottyMacEsq :

Understood. Even the "racially charged" part of that is likely opinion unless NO person could look at that and say that this has anything to do with race. Even very "sensitive" people like this spokesperson, etc..., if they have any belief, no matter how unreasonable, that it has to do with race, then even that would be opinion.

ScottyMacEsq :

Insults are generally not actionable, unless they're defamatory statements (again, require false statements of material fact that actually cause quantifiable damages).

ScottyMacEsq :

Otherwise, they're going to be protected as free speech. Even hateful, despicable, odious speech can be protected.

Customer:

Well, thanks for letting me rant. I just wanted to be able to keep him away from my wife and myself next month. -- This odious individual had an injunction against him 2-3 years ago from another member of our association... maybe Karma will finally catch up with him.

ScottyMacEsq :

Hopefully, that will be the case. My pleasure. I hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

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