Kelcy Warren’s Defamation Suit Has Beto O’Rourke Spoiling for a Fight

Texas has strong protections against frivolous defamation suits. Will the Democratic gubernatorial hopeful use them?

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At a campaign rally in San Antonio in early February, Beto O’Rourke inveighed against Governor Greg Abbott, directly blaming him for last winter’s deadly grid collapse and his coziness with Texas’ biggest energy players. 

“We are all paying the price for this guy’s corruption and his incompetence,” he said. 

Abbott and state lawmakers responded with a series of new grid regulations that energy experts say fall far short of what is needed to prevent another disaster. After pronouncing that “everything that needed to be done, was done” to fix the grid, Abbott then raked in millions of dollars in campaign contributions from power and gas companies. That was “pretty close to a bribe,” O’Rourke said. 

Kelcy Warren, one of the governor’s biggest donors, apparently did not appreciate the implication. This past June, the founder and executive chairman of pipeline giant Energy Transfer Partners cut Abbott a $1 million check—four times more than any of his prior contributions to the governor—just months after his company made $2.4 billion during the winter blackout. Since then, Warren has featured prominently in O’Rourke’s attacks casting Abbott as a bought-and-paid-for shill for his energy donors. 

The day after O’Rourke’s San Antonio event, the Dallas billionaire’s lawyers sent the El Paso Democrat a cease-and-desist letter warning him that his “recently made public statements that Mr. Warren paid a ‘bribe’ to Governor Greg Abbott,” were “absolutely false” and “defamatory,” according to a partial copy of the letter provided by the O’Rourke campaign. 

If O’Rourke didn’t “immediately make a public announcement” retracting his statements about Warren and refrain from any such future comments, the lawyers warned, “we will take all necessary and appropriate steps to protect our client’s rights.” 

The Democratic candidate ignored Warren’s demands, and soon his own attorneys were served with notice in late February of a defamation lawsuit seeking damages of more than $1 million. The lawsuit calls O’Rourke a “failed politician” and accuses him of waging “a relentless and malicious attack on Warren by accusing him of serious crimes including extortion, bribery, and corrupt influence” due to his donation to Abbott and his role as the former CEO of Energy Transfer.

After the March primary, O’Rourke held a press conference announcing the lawsuit. In the face of Warren’s legal threats, “I chose not to back down,” he said, saying the “frivolous” suit was an attempt by the mogul to “use his billions of dollars to try to shut me down, and shut us up, from telling the story of what happened to the people of Texas.”

Free speech advocates and many legal scholars have long decried these sort frivolous lawsuits—known as SLAPPs, or Strategic Lawsuits Against Public Participation—as a blatant abuse of the country’s legal system by powerful and wealthy people and corporations in an attempt to silence outspoken activists, critical reporters, and rivals alike. 

“Kelcy Warren is far from the first billionaire to file a lawsuit against someone who says something they don’t like. … And even though they’re highly unlikely to succeed on the merits, they file them anyway,” Evan Mascagni, policy director for the anti-SLAPP advocacy group Public Participation Project, told the Observer

“SLAPP-filers don’t go to court to seek justice. Rather, they file these meritless lawsuits to silence, harass, and intimate their critics. Defending against a meritless lawsuit can cost tens or even hundreds of thousands of dollars and clog up the court system for years while at the same time having a chilling effect on the writer or speaker.” 

With one of Abbott’s top donors going directly after his political ally’s opponent, Warren’s lawsuit marks an unprecedented incursion into Texas politics—one that is likely to further elevate the mega-donor’s role in the most high-profile election this year. It seems to be an unwelcome move for Abbott, whose campaign promptly issued a statement saying that it had no involvement with the suit. O’Rourke, meanwhile, is spoiling for the fight—and has doubled down in the wake of the lawsuit. Earlier this month, O’Rourke compared Abbott to Russian President Vladimir Putin, calling him an “authoritarian” and a “thug,” and said, “he’s got his own oligarch here in the state of Texas”—an apparent reference to Warren.

The law firm—Kasowitz Benson Torres—that Warren hired to take on O’Rourke is notorious for aggressively litigating these types of suits on behalf of its powerful clients, including Warren’s company, Energy Transfer Partners. The firm’s founder, Marc Kasowitz, was also the longtime attorney for the infamously litigious former President Donald Trump.

Energy Transfer Partners, represented by Kasowitz attorneys, has tried to push the boundaries of the judicial system to punish and stifle activists and environmental groups involved in protests and campaigns that tried to block the company’s construction of the controversial Dakota Access Pipeline.

In 2017, the company filed a lawsuit that accused the environmental activism group Greenpeace of orchestrating a vast conspiracy with other activists and groups to manufacture a “media spectacle”—by spreading misinformation and inciting vandalism—as a ruse to block the pipeline and ultimately raise money for the organization. In doing so, Energy Transfer claimed that Greenpeace violated federal racketeering laws. Known collectively as RICO, these laws were initially created to take down organized crime but have increasingly been invoked by corporations to go after their antagonists. Energy Transfer claimed that Greenpeace had cost the company hundreds of millions of dollars and undercut its ability to secure financing. It sought $900 million in damages.

In an interview with a TV news station in North Dakota, Warren said the lawsuit was meant to “send a message.” 

“We’ve created this kind of tolerance where, ‘Oh my gosh, you can’t challenge these people in fear that someone is going to say you’re not a friend of the environment.’ That’s nonsense,” he said. “Could we get some monetary damages out of this thing, and probably will we? Yeah, sure. Is that my primary objective? Absolutely not. It’s to send a message, you can’t do this, this is unlawful and it’s not going to be tolerated in the United States.”

A federal judge called the RICO allegations “dangerously broad” and dismissed the suit in 2019. But Energy Transfer was not deterred. 

“It’s not over,” the company’s executive vice president and general counsel Thomas Mason told investors on an earnings call. “We’re not just going to stand by and accept this kind of behavior from bad actors.” 

Within weeks, the company filed a defamation lawsuit against Greenpeace in a North Dakota state court. That case has dragged on for three years and is currently set for a jury trial date in 2023, according to state court records. 

North Dakota is favorable terrain for these sorts of defamation lawsuits. Unlike many other states that have passed anti-SLAPP laws to discourage frivolous lawsuits, North Dakota has none. Texas, however, has one of the strongest anti-SLAPP laws—the Texas Citizen Participation Act—in the country. The law allows for an expedited dismissal of frivolous lawsuits filed against defendants for speaking out on a “matter of public concern.”

Warren’s lawsuit cites several statements O’Rourke has made—both on social media and in campaign speeches—blaming Abbott and his energy industry donors for the deadly grid collapse, which his lawyers argue amount to specific and defamatory claims that Warren broke the law. 

“Defendant’s statements that Warren has committed felonies in a purported effort to profit off the suffering of his fellow Texans are completely out of bounds for any speech, let alone as talking points for a candidate for the Governor of the State of Texas,” the lawsuit states. “The accusations go well beyond the sorts of vague and generalized accusations of political and corporate corruption that are often thrown around; rather, they focus on a particular person, a particular campaign contribution, at a specific point in time, and a particular purported favor done in exchange for the contribution.”

The suit points to Warren’s long history as a political donor to Abbott and others and says that he made his unusually large $1 million contribution to Abbott in June because the governor was heading into what was expected to be an expensive primary race against Don Huffines—a wealthy former state senator who was self-funding his campaign—along with several other potential challengers. The Dallas billionaire filed the suit in San Saba County, where he owns property. Warren argues he is a private citizen who “has not spoken publicly nor sought publicity concerning the matters” that are the subject of O’Rourke’s accusations. 

While it’s not clear if O’Rourke will ultimately file a motion to get the suit tossed, experts say the state’s anti-SLAPP law was created for cases like these. 

“My general impression of the lawsuit is that it’s very much subject to dismissal under the TCPA,” Lane Haygood, an Odessa-based lawyer who has worked on free speech cases in the state, told the Observer

“The statements that could survive [an anti-SLAPP dismissal] are the ones that get closest to accusing Mr. Warren of committing a specific crime,” Haygood added. “There are a couple of times that O’Rourke uses words like extortion or bribery, which are defined crimes under the Texas Penal Code. But they are also rhetorical shorthand and hyperbolic, and so in context, Texas courts are generally likely to hold that such language is not specific enough to be actionable defamation. It is the difference between saying ‘John Smith assaulted me on September 4, 2021,’ and ‘John Smith is a bully who beat me up.’ ” 

O’Rourke has dismissed Warren’s claims as blatantly frivolous, saying that everything he’s said is based on publicly available facts and media reports. So far, he’s indicated that he wants to let the case play out—paying for any legal costs with campaign funds. This week, his attorneys filed motions to change the venue of the lawsuit to a court in his home of El Paso County and called for a trial by jury. 

Under the state’s anti-SLAPP law, O’Rourke has 60 days from the date he was served—February 28—to file a motion to dismiss. It’s not uncommon for attorneys to wait until the deadline to do so in case the defendant files an amended petition, Haygood said. 

Or O’Rourke may see the public spectacle of this lawsuit as a political gift that’s well worth going to court over—especially since his ample campaign funds should easily cover the legal costs of a drawn-out legal battle. 

Haygood says he’d advise his clients to use any means available to try to kill a lawsuit as early as possible. 

“But then again, most of my defamation defendant clients aren’t independently wealthy candidates for high public office with an enviable fundraising game, so the calculus will be different,” he said.