Is that something that’s more or less up to the judge?
Well, it's supposed to be up to the law. If he hasn't stated a claim for relief, it gets tossed. Where I'm seeing the difficulty on TI is that while truth is, somewhat surprisingly, not a defense in Texas, you still have to plead that:
- A contract exists
- A third party willfully and intentionally interfered with that contract; and
- You suffered damages as a result.
Texas uses the older definition from the Second Restatement of Torts, which doesn't require an actual tort like defamation be proven, and it was wise not to plead a defamation claim too.
However, you can know something will cause parties to cancel a contract and even intend that if your speech is protected or privileged. For instance, if someone hires a consultant to investigate the behavior of a contractual partner and the consultant reports that the partner has been swindling them, and advises that they terminate the contract, the fact that the consultant knows or even intends that result is irrelevant.
In the case of MMFA, they'll argue that the conduct described in the complaint does not state a claim for TI even if their statements were not true, and even if they actively hoped to get advertisers to leave the platform, because it was still protected by the First Amendment and their primary and legitimate purpose was news coverage, even if it did in fact cause advertisers to leave the platform.
I will assume they led with their strongest claim and the other two, business disparagement and interference with prospective economic advantage, are in the opinion of whoever drafted the complaint even shakier. At a first glance, I'm not sure I agree with this and the business disparagement claim may be slightly stronger.
Interference with "prospective" advantages is in practice often nearly impossible to prove so I'm not even going to talk about that.
MMFA may even send a Rule 11 letter, i.e. warning that should the suit terminate in their favor, they intend to seek costs and fees for frivolous litigation.
They may even try to invoke Texas's SLAPP statute, even though there is case law from the Fifth Circuit Court of Appeals fairly clearly stating it doesn't apply under the Erie doctrine.
Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019).