Background
On May 6, 2023, a gunman killed five adults and three children and wounded seven other people at Allen Premium Outlets before police killed him. After law enforcement released the shooter’s name and birthdate the next day, a 2022 booking photograph of appellee Mauricio Garcia circulated online with the false claim that he was the shooter. Garcia shared the shooter’s name and Dallas residence but was three years older.
On May 7, Infowars host Owen Shroyer displayed a printed social-media post containing Garcia’s photograph while discussing the shooter and said, “His name was Mauricio Garcia, your neo-Nazi [Shroyer laughs] white supremacist.” On May 8, Newsmax’s Greg Kelly Reports displayed Garcia’s photograph while Greg Kelly identified him as the shooter and alleged membership in the “Puro Tango Blast” prison gang. Kelly retracted the identification and apologized the following night. Shroyer issued a correction and apology on May 28 after receiving a correction request from Garcia’s counsel.
Garcia sued Newsmax, Shroyer, and other media defendants for defamation on March 26, 2024, seeking presumed damages for defamation per se, nominal and exemplary damages, and a judgment clearing his name. Newsmax and Shroyer filed Texas Citizens Participation Act motions to dismiss, disputing Garcia’s prima facie case and asserting fair-comment and fair-report privileges. Following agreed limited discovery, the 455th District Court of Travis County denied both motions on October 2, 2024. Newsmax and Shroyer took this interlocutory appeal. Garcia addressed only the Greg Kelly Reports segment among Newsmax’s broadcasts and stipulated that the other Newsmax statements were not actionable if that segment was not.
The Court’s Holding
The Third Court of Appeals affirmed both denial orders. Reviewing the TCPA rulings de novo and viewing the pleadings, affidavits, and evidence in Garcia’s favor, the court held that he supplied clear and specific evidence establishing a prima facie case for every essential defamation element. The TCPA’s applicability was undisputed. The court did not decide whether the hearing notice was untimely because its merits resolution made that procedural issue unnecessary.
The court characterized the challenged identifications as explicit, verifiable statements of fact, not nonactionable political commentary or defamation by implication. Kelly gestured toward Garcia’s image while saying, “[T]hey told us this guy did it, Mauricio Garcia,” and Shroyer spoke while Garcia’s photograph was displayed. A reasonable viewer could understand those statements to identify Garcia as the mass shooter. Arguments that other media had used the photograph, that it genuinely depicted someone named Mauricio Garcia, or that it was merely an “alleged” shooter photograph did not make the identifications true.
Shroyer’s claimed lack of intent to display the photograph did not defeat publication. Intent to refer to the plaintiff was unnecessary, and the broadcast evidence—including Shroyer’s tapping the printout and looking toward his crew—supported awareness of its display. His oral identification independently constituted publication. The statements also were “of and concerning” Garcia: acquaintances could recognize his photograph, and the additional false implication that he had been killed did not make the identification refer only to some other person.
Because Garcia was a private individual suing media defendants, negligence—not actual malice merely because the broadcasts concerned an important public event—was the governing fault standard. Expert evidence from journalist Fred Zipp supported a duty to verify a mass-shooting suspect’s image through identified investigative or primary sources rather than assume other outlets had verified it. Fact-checking expert Brooke Binkowski identified publicly available arrest-record information showing Garcia was 36, not the reported 33-year-old shooter, and other information casting serious doubt on the photograph. Newsmax’s internal warnings, its own report that the shooter reportedly had no criminal history, and admissions of protocol breaches further supported negligence. Shroyer’s choice to discuss an unreviewed anonymous social-media post, despite controlling his topics, supported the same conclusion.
Falsely identifying Garcia as perpetrator of the mass killing was defamation per se, so Garcia need not establish actual malice or actual damages at this preliminary TCPA stage. The fair-report and fair-comment privileges did not apply because law enforcement had not identified Garcia as the shooter, and the challenged content was the false identification—not reporting or criticism concerning official conduct. Both appellants waived the separate statutory defense for accurate reporting of third-party allegations by first raising it in their TCPA replies rather than their motions. That circumstance-specific waiver rested on the TCPA’s motion deadline and Garcia’s inability to respond, not on the defense’s underlying merits.
Key Takeaways
- Explicitly displaying a person’s photograph while identifying that person as a mass shooter can be actionable factual defamation even within a broader opinion or commentary program.
- A private individual’s TCPA prima facie case against media defendants requires clear and specific evidence of negligence, which may include expert testimony, circumstantial evidence, available contradictory information, and proof of inadequate verification.
- False identification as a mass murderer is defamation per se; actual damages and actual malice were not required at this threshold stage.
- The court affirmed both TCPA denials, rejected the fair-report and fair-comment privileges as inapplicable to the identifications, and held the third-party-allegation defense waived because it was raised only in replies.
Why It Matters
The decision permits Garcia’s claims against Newsmax and Shroyer to continue; it does not finally determine liability or damages. It distinguishes protection for commentary about a public tragedy from a broadcast’s express, objectively verifiable identification of the wrong person as its perpetrator.
For media defendants and TCPA practitioners, the opinion also underscores the importance of independent photograph verification and timely presentation of affirmative defenses. The privileges analysis was confined to the challenged identifications, while the third-party-reporting defense was resolved procedurally rather than declared universally unavailable.