Julie Hersh v. John Tatum and Mary Ann Tatum, 526 S.W.3d 462

Background

Paul Tatum, a high‑school student, died by suicide after an automobile incident; his family’s obituary stated he died from automobile injuries.
Julie Hersh, a suicide‑prevention advocate, published a blog advocating honesty about suicide in obituaries and spoke with Dallas Morning News columnist Steve Blow about suicide awareness; Blow later published a column that described Paul’s death in identifiable detail.
The Tatums sued Blow and the News for defamation and later sued Hersh (first for defamation, then nonsuited and proceeded on intentional infliction of emotional distress) alleging Hersh fed Blow details and encouraged publicity about their son to promote her views/book.
Hersh moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing her communications concerned a matter of public concern (suicide prevention) and thus the suit should be dismissed; Hersh denied speaking to Blow about the Tatums specifically.
Trial court granted dismissal under the TCPA; the court of appeals reversed, holding a defendant who denies making the alleged communication cannot invoke the TCPA. Texas Supreme Court granted review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
May a defendant invoke the TCPA when she denies making the alleged communication that the suit is "based on"?	Tatums: If Hersh denies making the communication, she cannot show by preponderance that the suit is based on her exercise of free speech; TCPA should not apply.	Hersh: TCPA applies if plaintiff's petition shows the suit is based on or relates to her exercise of free speech; defendant need not admit the communication occurred to invoke the Act.	Court: Yes. A defendant may invoke the TCPA even while denying the communication; the suit’s basis is determined from the plaintiff’s pleadings and other evidence. Pickens and contrary precedents disapproved.
Is suicide advocacy/obituary transparency a "matter of public concern" under the TCPA?	Tatums: Argued suicide in obituaries is a personal/familial grievance, not public concern.	Hersh: Suicide prevention and obituary transparency implicate health, safety, and community well‑being, fitting the statutory definition.	Court: Held it is a matter of public concern; suicide awareness falls within statutory categories.
Did the Tatums produce clear and specific evidence to make a prima facie case for intentional infliction of emotional distress (IIED)?	Tatums: Hersh’s encouragement to publicize their son while family was grieving was extreme and outrageous and caused severe emotional distress.	Hersh: Even if communications occurred, her conduct was not extreme or outrageous as legally required for IIED.	Court: Tatums failed the IIED standard—conduct was not extreme and outrageous under Texas’s high threshold—so dismissal under TCPA was proper.
Should Hersh recover mandatory attorneys’ fees and sanctions under the TCPA?	Tatums: N/A (contested below).	Hersh: Sought fees and sanctions; trial court denied mandatory fees and conditionally awarded appellate fees.	Court: Did not decide; remanded to court of appeals to address fees and sanctions.

Key Cases Cited

Pickens v. Cordia, 433 S.W.3d 179 (Tex. App.—Dallas 2014) (prior court of appeals decision holding a defendant who denies making the communication cannot invoke the TCPA)
Rauhauser v. McGibney, 508 S.W.3d 377 (Tex. App.—Fort Worth 2014) (court of appeals decision concluding a defendant denying any communication may not obtain TCPA dismissal)
Culbertson v. Lykos, 790 F.3d 608 (5th Cir. 2015) (Fifth Circuit discussing state appellate decisions on TCPA and denial-of-communication issue)
Stockyards Nat'l Bank v. Maples, 95 S.W.2d 1300 (Tex. 1936) (pleadings are the best evidence of the nature of the action)
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788 (Tex. 2006) (discussion of pleading standards and summary judgment principles)
Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) (articulating Texas standard for extreme and outrageous conduct in IIED claims)