Don't Mess With Texas' Anti-SLAPP Law

Protect the Protest member org, Electronic Frontier Foundation wrote this important blog post about the Texas anti-SLAPP law that’s under threat. See the original post here.

Update 5/18/23: News reports indicate that this bill's language has also been added to a separate bill, Texas House Bill 3129. Texas lawmakers should vote no. 

Over the past few decades, we’ve seen the rise of civil lawsuits that are meant to harass and silence defendants, rather than resolve legitimate disputes. These lawsuits have become known as Strategic Lawsuits Against Public Participation, or SLAPPs. 

Some states’ legislatures, including California and Texas, have taken action to protect everyday peoples’ First Amendment rights by passing anti-SLAPP laws. These laws limit invasive discovery while a judge first determines if a case qualifies as a SLAPP. If it is a SLAPP, it can be thrown out quickly and, depending on the law, the person or company who filed the SLAPP can be made to pay legal fees of the party they sued. Anti-SLAPP laws have proven to be crucial tools in vindicating the rights of everyday people to speak out on issues of public concern. 

Right now, key Texas lawmakers are pushing forward with an unnecessary bill that would make a mess of Texas’ anti-SLAPP law, the Texas Citizens’ Participation Act, or TCPA. The TCPA was already slightly weakened in 2019; EFF opposed those changes too. This time, it’s worse. 

Keep Free Speech Protections In Texas Courts: Oppose S.B. 896 

Texas’ anti-SLAPP law helps everyday people who speak out about matters of public concern. The law protects you if you complain about a local restaurant, contractor, or real estate development project, for instance, and then are sued for “defamation” or something even more vague, like having your activism deemed a “RICO conspiracy.” Currently, you can file an anti-SLAPP motion, the case is automatically stayed until a judge decides whether it’s a SLAPP suit or not. If it is, the case gets thrown out, and the SLAPP victim gets their legal fees paid by the other side. 

The Texas bill currently being debated, S.B. 896, would change all that. Instead of simply having the judge decide about the SLAPP issue, there would be a debate about whether the motion fits into one or more exemptions, or whether the anti-SLAPP motion was filed in a timely way. 

These changes will open up several loopholes and make it increasingly difficult to protect people’s speech. The issue of whether a Texas anti-SLAPP motion was “timely” is highly subjective, and could open a second track of (costly) litigation about the timing issue, while discovery moves forward against a SLAPP victim. As for the extra time and attention for the “exemptions,” it’s important to note that many of these exemptions were only just pushed into the law in 2019. Courts are still figuring out their contours, and in our opinion, the exemptions never should have been added in the first place. For instance, the 2019 modifications allowed enforcement of non-disparagement clauses and non-compete clauses to be exempted from SLAPP analysis, no matter how frivolous such an enforcement claim might be. 

A Broad Bipartisan Coalition Opposes This Anti-Speech Bill

Groups from across the political spectrum have joined a wide coalition opposed to S.B. 896, recognizing that Texas’ anti-SLAPP law protects free debate for speakers of all political stripes. It gives protection to those who want to speak out about local land use decisions, review businesses, or comment on judgements made by Texas courts. We are distributing a one-page document to Texas lawmakers explaining the most important reasons to vote NO on this flawed bill.  

In addition to civil liberties groups like EFF and ACLU, a huge array of media oppose the changes in S.B. 896, including Texas’ biggest newspapers and broadcasters, the New York Times, NBCUniversal, and the Motion Picture Association. Journalists’ and writers’ professional groups, like the Committee to Protect Journalists, the Reporters Committee for Freedom of the Press, PEN America, the Authors Guild, the International Documentary Association, and the Student Press Law Center, all oppose it as well. 

In a recent editorial published in several Texas newspapers, Will Creely, legal director for the Foundation for Individual Rights and Expression, explained: 

The TCPA arms innocent Texans with the means to fight back by filing an anti-SLAPP motion before spending a fortune on legal fees in pre-trial filings and discovery… But SB 896 would change that, denying defendants a stay when the court deems their anti-SLAPP motion untimely, frivolous, or subject to an exemption. That tweak might sound reasonable at first blush. But determining whether an anti-SLAPP is untimely, frivolous, or exempt involves tough questions of law — questions that trial courts regularly answer incorrectly.

As Laura Lee Prather, a longtime Texas First Amendment attorney, wrote recently in an op-ed published in the Houston Chronicle and San Antonio Express-News (PDF): 

That person exercising their free speech rights would be “slapped” into silence by the costly burden of the dual tracks of litigation. And the trial courts would be immersed in discovery disputes and jury trials, all while the appellate court decides if the case had merit.

Opponents of weakening the TCPA — such as the National Taxpayers Union and the American Civil Liberties Union — range the ideological spectrum. Yet, they all agree that this bill can be used to weaponize the court to discriminate against voices with which others disagree and to silence critical voices through unnecessary dual track litigation and ensuing costs.

We hope Texas lawmakers listen to this overwhelming opposition coming from their constituents, and not a few narrow interests seeking to dominate other Texans through the civil litigation system. You can reach out to members of the state legislature’s Calendars committee and ask them to not set a date until additional negotiations can be had. And you can reach out to all members telling them to vote No on this harmful bill. This one-page document from the Protect Free Speech Coalition explains the most important points of our opposition. 

Texans don’t want frivolous lawsuits to get in the way of a good debate. That’s why the Texas Citizens Participation Act was passed. The need for robust speech protections realized by the TCPA haven’t gone away. These recent attempts to damage TCPA would put citizens who can pay for big-money lawsuits in a position to silence others; that’s anathema to our free expression values. This bill requires a loud and clear NO vote.