The Electronic Frontier Foundation analyzes Big Business’ “reform” of Texas’ anti-SLAPP law. This article is reprinted with permission from EFF’s website.
Earlier this year, a critical free speech law in Texas came under attack. Texas bill H.B. 2730, as introduced, would have gutted the Texas Citizens Protection Act, or TCPA.
The TCPA has been one of the strongest laws in the nation protecting citizens against SLAPPs. SLAPP is a shorthand way of referring to lawsuits in which the legal claims are just a pretext for silencing or punishing individuals who use their First Amendment rights to speak up on public matters. At EFF, we have supported so-called “anti-SLAPP” laws, like the TCPA, which allow speakers to quickly dismiss frivolous cases against them and often obtain attorney’s fees.
The original bill, H.B. 2730, would have severely limited the average Texan’s ability to use the TCPA and allowed litigious businesses to once again use courts to intimidate their critics. But a broad coalition of groups spoke out against the bill, including journalism associations, environmental groups, and hundreds of Texas-based EFF supporters who emailed their state representatives.
We’re grateful for that vocal opposition, which created momentum for big changes to be made to H.B. 2730. Through your activism, some of the biggest problems have been fixed. But despite those changes, EFF still cannot support the bill, because of two issues that remain.
First, the bill prevents the TCPA from applying when companies sue over alleged trade secret violations, or sue former employees based on non-compete agreements. That leaves big loopholes for parties to allege trade secret or non-compete violations to silence critics or whistleblowers.
Second, the bill increases the ambiguity over whether TCPA defendants can get their legal fees paid, if they use pro bono or contingent-fee counsel.
We had hoped that lawmakers would address these important concerns before sending the bill to the governor. But that didn’t happen, and we think Texans would be better off if Gov. Greg Abbott vetoes H.B. 2730.
H.B. 2730: A solution in search of a problem
Since it was passed in 2011, the TCPA has served to protect a wide variety of Texas residents. It has stopped meritless lawsuits, including a case against a Dallas couple who were sued by a pet-sitting company over a negative Yelp review; a lawsuit against individuals who used Facebook to complain about a cosmetic medical treatment; and two lawyers’ attempt to unmask anonymous speakers who posted online comments about Texas’ family court system.
All of which raises the question: if the law was working to protect Texans from vexatious litigation aimed at chilling their First Amendment rights, why was H.B. 2730 needed?
It wasn’t. H.B. 2730 is a solution in search of a problem. Much of the bill was pushed by a group called Texans for Lawsuit Reform, a big-business lobby that published a report on the TCPA in 2018.
In its original form, H.B. 2730 would have severely narrowed what counts as speech about an issue of “public concern” that can be protected by the TCPA, which would have blunted the law’s application to a number of expressive activities. The original bill also would have allowed plaintiffs to unmask online anonymous speakers using a Texas procedure that allows for pre-litigation discovery, by making that process no longer subject to TCPA. This, too, was fixed.
Protecting anonymous speech online has been a particular concern for EFF. Last year, we filed an amicus brief in support of anonymous Texas speakers who wrote posts on Glassdoor, an employer review site. A business had attempted to use Texas’ pre-litigation discovery process to learn their identities. In that case, the Texas Supreme Court protected the speakers’ identities.
Big improvements, bad exemptions
Strong opposition to H.B. 2730 caused a series of amendments. The amended bill, which passed the Texas State House of Representatives and is now in the Texas State Senate, is a huge improvement over the original proposal.
The amended bill replaces the narrow definition of “public concern” with a much broader standard. The bill also makes clear the TCPA would protect anonymous speakers subject to the Texas procedure for pre-litigation discovery. And it specifically protects Internet users who face lawsuits for expressing their opinions online about businesses and services.
To all those Texans who sent emails in support of TCPA: thank you for standing up for free speech. You made a terrible bill much better.
Unfortunately, problems still remain with H.B. 2730. Exemptions for cases related to trade-secrets and non-compete agreements mean that when a company sues a current or former employee for allegedly disclosing trade secrets, or violating a non-compete agreement, the worker won’t be able to use the TCPA to dismiss the case.
But it’s a mistake to assume that things like trade secret accusations can’t be used to stifle speech. The blood-testing company Theranos, whose founder Elizabeth Holmes has now been charged with fraud, used trade secrets threats to try to intimidate both journalists and their sources. Keith Raniere, who is currently on trial for sex-trafficking and extortion charges related to his role as founder of a purported self-help group called NXIVM, used trade secret litigation to sue critics who said NXIVM, a group in which some members were branded, was a cult.
We’re also concerned that H.B. 2730 will make it harder for ordinary people to get their attorneys’ fees paid. There’s already a split in Texas appeals courts over whether or not the TCPA can be used to repay legal fees in cases where defendants don’t pay attorney’s fees up front or as the case progresses, but instead rely on pro bono or contingent-fee counsel—the types of lawyers used by the great majority of middle-class and low-income folks who get wrapped up in legal disputes.
As Public Citizen’s Paul Levy explains in a detailed blog post, small changes in the wording of H.B. 2730 may actually limit TCPA fee awards to only those defendants who can afford to pay their attorneys’ fees up front. This could lead to a great many speakers caving to demands that they take down their critical but honest posts, rather than vindicating their First Amendment rights. It’s not a small mistake. One of the key components of any anti-SLAPP laws is to encourage attorneys to defend ordinary people who are targeted by SLAPPs, but may not have the money to pay legal bills up front.
We’re pleased that Texas legislators listened to the public and removed the most drastic problems with H.B. 2730. But at the end of the day, the bill still serves to exempt some of big business’ favorite types of litigation, while making life harder for everyday people who want to exercise their free speech rights. Texas Gov. Greg Abbott should veto the bill.