Paul Davis began his speech at the Rally Against Censorship in late January with a joke. Surveying the crowd in Conroe, the boyish 41-year-old Frisco lawyer asked if anyone had “not been censored on social media.” When one audience member raised a hand, Davis deployed his punch line. “Are you a fed?” he asked. That set the tone for a fifteen-minute speech that followed in which he discussed his own bans from and censorship on social media for contesting the 2020 election results and saying the COVID-19 vaccine was killing people. Davis made clear that his life’s cause was opposing the suppression of free speech online. “If you’re not getting censored on social media,” he said, “you’re not speaking truth.”

Three months later, Davis is involved in a lawsuit that accuses state representative Jeff Leach of libeling a Texas secessionist by accusing her of treasonous sedition on Twitter. Given Davis’s absolutist stance on free speech, you would think he would be vigorously defending Leach, a conservative Republican from Plano. You’d be wrong. Davis is instead representing a supporter of the Texas Nationalist Movement, a pro-secession group, in the defamation suit. Everything in moderation, apparently, including content moderation. Thus, another chapter in the topsy-turvy national conversation about what is, and is not, free speech.  

Brought by Morgan McComb, a conservative activist, the petition stems from a dustup earlier this legislative session on Twitter. In March, state representative and legislative troll Bryan Slaton of Royse City introduced a bill called TEXIT that would call for a ballot referendum on Texas secession. Leach, a lawmaker whose politics are best described as staunchly conservative or cuck, depending on whom you ask, tweeted that the bill was “the very definition of hypocritical & seditious treason.” McComb, whom the lawsuit identifies as a constituent of Leach’s, tweeted at Leach asking if he was accusing her of sedition, to which the representative replied, “If you believe that Texas should secede from the United States of American# [sic] – then yes. Unequivocally yes.” That seemed to be the end of it. Then, on Wednesday, during a House Judiciary Committee hearing, a heavyset man sat down in front of Leach and the other committee members. But instead of speaking on the legislation, he said, “I’m actually here . . . with National Process Servers. Jeff Leach, I have a citation here for you out of Parker County.” 

The plaintiff alleges that Leach’s tweets constitute defamation per se—that is, libel so self-apparently harmful to a reputation that a jury can presume there are general damages—and is seeking monetary relief of as much as $250,000. If Leach loses, he’d be the rare user to spend money to tweet on Elon Musk’s Twitter. 

McComb, Davis says, suffered grievous damages from Leach’s comments toward her. “I think that her feelings were really hurt by the tweet, and it is defamatory in nature,” Davis told me, adding that his motivation in taking the case was that he wanted to hold elected officials “accountable.” “It was just a principle thing: we shouldn’t have our public officials out there just willy-nilly accusing people of crimes just for voicing their opinions.” 

When reached, Leach referred Texas Monthly to a prepared statement in which he said the suit was without merit and vowed to fight it. “As Chairman of the Texas House Judiciary Committee,” the statement reads, “I know first-hand that the Texas Justice system works to ensure justice and to safeguard our Constitutional liberties and freedoms. And I am confident that this case will be no different.”

To prove their case, McComb and Davis will have to convince a jury that Leach published what is legally called “a false statement of fact.” Jim Hemphill, a First Amendment lawyer in Austin, explained the central question of the case to me. “The fighting ground is going to be, ‘Can that tweet reasonably be read to actually charge [McComb] with the commission of crimes or is it a characterization that is at most hyperbole about support of secession?’ ”

Davis told me the fact that Leach said he was “unequivocally” accusing McComb of treasonous sedition indicates his tweet was meant as a factual statement. Hemphill was less certain a “reasonable” person would reach that conclusion. “I would say that the defendant has a good argument that a reasonable reading of the tweet is just a characterization of someone supporting secession as holding views that are antithetical to the general views of American citizenship,” he said. “I think that the defendant has a good argument that he did not actually accuse anyone of specific criminal action.” 

The Texas Supreme Court recently defended similar speech in another defamation per se case involving statements on social media. In 2019, after lobbying the East Texas city of Waksom to pass a “sanctuary city for the unborn” ordinance, anti-abortion advocate Mark Lee Dickson posted on his Facebook that the Lilith Fund, an abortion fund, helped “pregnant Mothers murder their babies.” The fund won an initial defamation suit, but in  October, the Texas Supreme Court reversed the decision, concluding a reasonable person would not read Dickson’s post as implying the abortion fund actually committed murders under the law, but merely as expressing the opinion that abortion was murder. 

Davis argues the Leach case is fundamentally different. Whereas, he says, a reasonable Texan knows that abortion “is not legally defined to be murder,” he or she might not know that supporting Texas independence “is not sedition or treason” under the U.S. code. Nonetheless, his firm belief that others on social media might misinterpret rhetorical use of criminal terms has not stopped Davis from using them on Twitter, where he has accused President Joe Biden of “treason” and California representatives Adam Schiff and Eric Swalwell of being “traitors.” (In Biden’s case, he said there “might be a good reason” the president hasn’t brought a defamation lawsuit against him, implying it could be proven in court that Biden is treasonous.) 

Supporters of the Texas Nationalist Movement have long maintained that their position is not tantamount to treason. Daniel Miller, the leader of the movement, whose Los Angeles–based PR firm celebrated the news of the suit, told me that Leach and other lawmakers have been “poking the bear for quite some time” with their rhetoric about Texas secession. Though he had also spoken at the same anti-censorship rally as Davis did—and said then that “if you want to put a muzzle on Texans, to paraphrase Davy Crockett, you can go to hell”—he told me he expects more suits from secession supporters against those Texans who accuse them of treason. “They’re not in a mind to file frivolous lawsuits,” Miller said of his supporters, before noting that his organization has recently sued Facebook’s parent company for banning links to its site—a case in which the TNM is represented by Davis. “We’re not keen on litigation, but our supporters are fed up. They’re tired of being accused of criminal behavior when all they’re doing is advocating for a right that’s guaranteed under article one, section two of the Texas constitution.” (“The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”)

Miller added that if Leach thought McComb was committing a crime, he shouldn’t have tweeted about it but rather dialed 911. When asked whether the representative not calling the police could support the case that Leach was not literally accusing McComb of a crime, Miller conceded it might. But he savored the idea that Leach “would have to admit to the public that he’s just been engaging in a bunch of hyperbolic pearl clutching.” As with much debate on Twitter, winning the argument could prove almost secondary: it would be a unique pleasure just to watch a rival squirm.