Paige Patterson may be held liable for defamatory actions taken by others on his behalf, the Texas Supreme Court ruled Feb. 14.
That’s bad news for Patterson, former president of Southwestern Baptist Theological Seminary, and his former chief of staff, Scott Colter. The defamation case brought against them by a Jane Roe — the same alleged abuse survivor of whom Patterson famously quipped he would “break her down” — now heads back to the Fifth U.S. Circuit Court of Appeals.
On May 3, the federal appeals court published an opinion asking for guidance on two points from the Texas Supreme Court:
- Can a person who supplies defamatory material to another for publication be liable for defamation?
- 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 Texas high court heard oral arguments Sept. 11, after a court official inadvertently exposed 10,000 pages of sealed documents online for an entire weekend.
What’s the case about?
The heart of the case is that Jane Roe, a former student, claims she was repeatedly sexually assaulted by a fellow student in 2015 and the seminary and Patterson failed to protect her from the assaults and then allegedly defamed her afterward.
The seminary’s institutional liability in this matter appears to have been greatly reduced, as the communication in question transpired after seminary trustees had fired Patterson — meaning he no longer was acting in an official capacity and therefore could be held individually liable.
Scott Colter
His alleged helper in this defamation was Colter, who now leads a conservative nonprofit called The Danbury Institute that has ties to Focus on the Family and the Family Research Council.
The Texas high court summarized the case as follows: “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.”
Two questions
The appeals court paused because it questioned whether, under Texas law, Patterson and Colter could be held liable for the allegedly defamatory letter if they did not write the letter but did supply the content of the letter.
In short, the Texas court said, “Yes.”
“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.”
“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.”
The so-called “donor letter” has been at the heart of this case from its beginning. Other parts of Jane Roe’s case have been set aside by the court, but this one element endured.
Roe has vigorously maintained she was the repeated victim of sexual assault — sometimes at gunpoint — by a fellow student who also worked in the seminary maintenance department and had access to campus keys, including her on-campus apartment. Patterson and some other seminary officials did not believe Roe’s account and accused her of violating seminary purity codes by engaging in a consensual sexual relationship.
The male student — who is now deceased but has been assigned the court name John Doe — was expelled after seminary officials discovered a cache of firearms in his on-campus housing.
The court document picks up the story here: “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.”
It took nearly three years for Patterson’s actions against Roe to reach a boiling point with trustees — who first sent him to early retirement with an on-campus residence and soon thereafter summarily fired him with no benefits. Only later did trustees acknowledge that Patterson had spent the seminary into massive debt while student enrollment tanked.
When trustees fired Patterson his allies came to his defense.
When trustees fired Patterson — a beloved figure as co-architect of the Southern Baptist Convention’s “conservative resurgence” — his allies came to his defense. That included some seminary donors, who created the letter in question allegedly with information provided by Patterson and Colter.
The building intended to be a retirement home for Paige and Dorothy Patterson and a historical colleciton.
The court document explains: “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.”
That letter said: “It is our understanding that (the board) knew full well that the female student’s allegations of rape were false, that she 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.”
The letter also sought to justify Patterson’s use of the phrase “break her down” by saying: “The full board understood and accepted Dr. Patterson’s explanation of the phrase ‘break 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.”
This donor letter — which included allegations of sexual impropriety against Jane Roe but not John Doe — was sent to more than 100 people, including faculty and alumni, church leaders, and members of the press.
Dorothy and Paige Patterson
The court determined Colter played a large role in this matter, saying Colter “provided the donors with the list of recipients … (and) 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.’”
At trial, the federal district court granted summary judgment against Jane Roe, concluding 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 needed to be clarified by the Texas Supreme Court.
According to the Texas court, “Roe must show that Colter intended or knew that the defamatory statements in the donor letter would be published.” Then a footnote explains: “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.”
Another footnote quotes a 1915 Texas case where this was stated: “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.”
“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.”
In short, the court said last week: Yes, a person who supplies defamatory material to another for publication may be liable for defamation.
On the second question Roe has to refute Patterson’s claim that Roe must identify a specific slanderous statement Patterson and Colter made to prove defamation in court.
Here again the Texas high court sided with Jane Roe: “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.”
Thus, the case of Jane Roe v. Leighton Page Patterson and Southwest Baptist Theological Seminary remains alive once again and heads back to the Fifth Circuit for further review. The Texas Supreme Court order was signed by Justice Jane Bland.
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