EFF: Why We Can’t Support Modifications to Texas’ Anti-SLAPP Law

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 protectingcitizens against SLAPPs. SLAPP is a shorthand way of referring tolawsuits in which the legal claims are just a pretext for silencing orpunishing individuals who use their First Amendment rights to speak upon public matters. At EFF, we have supported so-called “anti-SLAPP”laws, like the TCPA, which allow speakers to quickly dismiss frivolouscases 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 forbig changes to be made to H.B. 2730. Through your activism, some of thebiggest problems have been fixed. But despite those changes, EFF stillcannot support the bill, because of two issues that remain.

First, the bill prevents the TCPA from applying when companies sueover alleged trade secret violations, or sue former employees based onnon-compete agreements. That leaves big loopholes for parties to allegetrade secret or non-compete violations to silence critics orwhistleblowers. 

Second, the bill increases the ambiguity over whether TCPA defendantscan get their legal fees paid, if they use pro bono or contingent-feecounsel.

We had hoped that lawmakers would address these important concernsbefore sending the bill to the governor. But that didn’t happen, and wethink 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 widevariety of Texas residents. It has stopped meritless lawsuits, includinga 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 protectTexans from vexatious litigation aimed at chilling their First Amendmentrights, 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 whatcounts as speech about an issue of “public concern” that can beprotected by the TCPA, which would have blunted the law’s application toa number of expressive activities. The original bill also would haveallowed plaintiffs to unmask online anonymous speakers using a Texasprocedure that allows for pre-litigation discovery, by making thatprocess 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 briefin support of anonymous Texas speakers who wrote posts on Glassdoor, anemployer review site. A business had attempted to use Texas’pre-litigation discovery process to learn their identities. In thatcase, the Texas Supreme Court protected the speakers’ identities.

Big improvements, bad exemptions

Strong opposition to H.B. 2730 caused a series of amendments. Theamended bill, which passed the Texas State House of Representatives andis now in the Texas State Senate, is a huge improvement over theoriginal proposal. 

The amended bill replaces the narrow definition of “public concern”with a much broader standard. The bill also makes clear the TCPA wouldprotect anonymous speakers subject to the Texas procedure forpre-litigation discovery. And it specifically protects Internet userswho face lawsuits for expressing their opinions online about businessesand services.

To all those Texans who sent emails in support of TCPA: thank you forstanding up for free speech. You made a terrible bill much better.

Unfortunately, problems still remain with H.B. 2730. Exemptions forcases related to trade-secrets and non-compete agreements mean that whena company sues a current or former employee for allegedly disclosingtrade secrets, or violating a non-compete agreement, the worker won’t beable to use the TCPA to dismiss the case. 

But it’s a mistake to assume that things like trade secretaccusations can’t be used to stifle speech. The blood-testing companyTheranos, whose founder Elizabeth Holmes has now been charged withfraud, 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 ordinarypeople to get their attorneys’ fees paid. There’s already a split inTexas appeals courts over whether or not the TCPA can be used to repaylegal fees in cases where defendants don’t pay attorney’s fees up frontor as the case progresses, but instead rely on pro bono orcontingent-fee counsel—the types of lawyers used by the great majorityof middle-class and low-income folks who get wrapped up in legaldisputes.

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 feeawards to only those defendants who can afford to pay their attorneys’fees up front. This could lead to a great many speakers caving todemands that they take down their critical but honest posts, rather thanvindicating their First Amendment rights. It’s not a small mistake. Oneof the key components of any anti-SLAPP laws is to encourage attorneysto defend ordinary people who are targeted by SLAPPs, but may not havethe money to pay legal bills up front. 

We’re pleased that Texas legislators listened to the public andremoved the most drastic problems with H.B. 2730. But at the end of theday, the bill still serves to exempt some of big business’ favoritetypes of litigation, while making life harder for everyday people whowant to exercise their free speech rights. Texas Gov. Greg Abbott shouldveto the bill.