The Texas Citizens Participation Act is at risk from SB 896. The Texas Citizens Participation Acts has a “unique role in protecting the democratic process that allows our state to function.” – Texas Supreme Court. Learn more to see how you can help.
I previously wrote about the proposed changes to the Texas Anti-SLAPP law in my article, Don’t Make A Mess Out Of The Texas Citizens Participation Act (March 27, 2023). That legislation (SB896/HB2781) has now made its way out the judiciary committees of both the Texas Senate and House and will soon come up for a full floor vote. Those committees didn’t seem to be particularly interested in determining the root causes of the current problems with the TCPA or listening to alternatives to address those issues. Instead of using a scalpel to carefully excise the problems with the TCPA, these committees have resolved on a carpet-bombing approach that seems to have as its only certain result that there will be a lot of collateral damage.
The purpose of Anti-SLAPP laws is to shield litigants from being exposed to the costs and expenses of lawsuit claims that infringe upon their constitutional rights to free expression. The Anti-SLAPP laws, and including the TCPA as currently drafted, do this by imposing a stay on litigation that involves these protected constitutional rights. Because state trial courts are not familiar with constitutional issues (such cases are usually handled by the federal courts), the state trial courts frequently get these issues completely 100% wrong, and thus Anti-SLAPP laws provide for the stay on litigation to continue through the appeal as well. Otherwise, if there was no stay during the appeal, if the trial court indeed made an error and overruled the TCPA motion, the litigant would have to spend a lot of money fighting a claim that would ultimately be reversed.
Read the rest of this article from Jay Adkisson at Forbes here:
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.
TCPA has protected environmental groups, labor unions, and other non-profit advocacy organizations facing retaliatory lawsuits aimed at intimidating and keeping them from speaking out about important issues.
TCPA has repeatedly protected individuals facing lawsuits aimed at intimidating and retaliating against them after they speak out about important issues of significant public concern, either by reporting misconduct to the authorities or going to the media.