The Texas Citizens Participation Act, also known as the Anti-SLAPP statute, was enacted in 2011 to protect citizens from meritless lawsuits intended to intimidate and thwart free speech rights.

Since its unanimous passage in 2011, the TCPA has disposed of innumerable meritless lawsuits filed in retaliation for Texans exercising their First Amendment right to free speech. It has been used to protect countless individuals, organizations and public officials, including: domestic violence victims; online commenters; people who report wrongdoing to police, the media , or the government; candidates for public office; investigative reporting; law enforcement; and more, when meritless lawsuits have been filed against them for exercising their First Amendment rights.

A few specific examples of the TCPA’s protection of First Amendment rights working involve domestic violence victims sued in Dallas and Houston; an abused child’s family sued in Cleburne; a veteran who was scammed by an air conditioning company and reported it to the media in San Antonio; countless consumers and public interest groups throughout the state who express their opinion; journalists; and even corporations sued for reporting wrongdoing.

While some tweaks to the Texas Citizens Participation Act (TCPA) can be made to improve it, the law overall is working well by disposing of meritless SLAPP lawsuits. (SLAPP stands for Strategic Lawsuit Against Public Participation.) The statue is contained in the Texas Civil Practice and Remedies Code, Chapter 27.

This law protects individuals and organizations alike and is especially noteworthy for helping the underdog in a “David and Goliath” situation when a well-funded person or entity seeks to bully someone who does not have the financial ability to defend a lawsuit or when a litigant files a meritless claim in hopes of extracting a quick settlement since the cost of litigation is so high.

In many instances, the process is the punishment. A meritless lawsuit filing, in and of itself because of the potential financial threat, may coerce a defendant into retracting their speech or not speaking out again on matters of public concern.

The TCPA allows a litigant to file a motion to dismiss within 60 days to test the merits of the case. This motion stops discovery – unless good cause is shown – and can thus contain legal costs if the motion is ultimately upheld.

This is quintessential tort reform that has worked. In one recent CLE paper, it was noted that 61% of motions to dismiss are granted at the trial court level (and a similar amount on appeal); thus, eliminating unnecessary strain on our judicial system by weeding out meritless cases at an early stage. Lawsuit limitation groups, including Texans for Lawsuit Reform and the Texas Civil Justice League, approved of the original passage of the law and have filed briefs in support of anti-SLAPP motions in Texas courts.

If the litigant can establish his case has merit, the lawsuit continues; the TCPA does not do away with legitimate claims. Contrary to recent assertions, TCPA cases are not jamming Texas appellate dockets. Some opponents cite the statistic of 270 appellate TCPA cases arising in Texas and 15 Texas Supreme Court decisions on TCPA since 2011. Yet, this is only .32 percent – less than a third of 1 percent – of the appellate docket and 1.5 percent of the Texas Supreme Court docket.

Concerns raised about the reach of the TCPA have yet to be decided by the Texas Supreme Court, making a legislative fix premature. Court cases are pending that will decide TCPA’s role in trade secret cases; non-compete claims; and disciplinary proceedings.

Slight updates to the law, including clarifying the enforcement action exemption, carving out family law cases, and providing more guidance on the pleading and hearing stage, may well be useful. We should tweak the law carefully with a narrow approach so as not to undo the benefits of the act and be wary of measures that could disenfranchise the constitutional rights of Texans under the guise of legislative reform.

​The Texas Citizens Participation Act has been used to protect countless individuals, organizations, and public officials when they have been served with a meritless lawsuit after exercising their First Amendment rights.