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TCPA At Risk

TCPA at Risk From HB 2730/SB 2162

Since its unanimous passage in 2011, the TCPA has disposed of innumerable meritless lawsuits filed in retaliation for Texans exercising their First Amendment rights to speak freely, to petition, and to associate. The TCPA is often referred to as the Anti-SLAPP statute (Strategic Lawsuits Against Public Participation).

The TCPA 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.

The TCPA has served as a national model for several other states and organizations which have passed similar legislation that’s been signed into law since 2011.

HB 2730/SB 2162: A Dangerous Overcorrection

HB 2730/SB 2162 was filed by Chairman Jeff Leach on February 28, 2019 without including citizens, public interest groups, the online community or the media in the discussion of its contents.

If passed, HB 2730/SB 2162 would have the following adverse effect on the protections of Texas citizens’ free speech rights:
  • HB 2730/SB 2162 could gut the heart and soul of the TCPA: protecting citizens when they speak out and are sued for defamation or invasion of privacy. Because plaintiffs are sure to argue that neither of those is considered “constitutionally protected” with the new definition being offered, it could leave the vast majority of citizens with no First Amendment protections under the Act.

  • HB 2730/SB 2162 removes existing definitions for the exercise of right of free speech and the exercise of the right of petition leaving an entire body of law interpreting the Act eviscerated and creating substantial confusion and satellite litigation moving forward as to what the new definitions mean.

  • HB 2730/SB 2162 removes definitions in the Act, such as what is meant by governmental proceedings, officials proceedings, public servant and matters of public concern which were taken from existing statutory or case law that preceded the passage of the TCPA – again leaving individuals who speak about matters of public concern and in a governmental or official proceeding with less certainty as to whether their exercise of First Amendment rights are protected under the law.

  • HB 2730/SB 2162 provides an opening for litigants to do an end-run around the statute by excluding coverage for efforts to unmask online commenters and others through meritless pre-suit discovery.

  • HB 2730/SB 2162 ignores the fact that the TCPA provides substantive rights and characterizes it as only a “set of procedures” in an attempt to further narrow the TCPA’s coverage. This bill ensures that when Texas citizens are sued in federal court by out of state plaintiffs that they cannot get the benefit of Texas law.

  • Although HB 2730/SB 2162 provides a deadline for the movant to provide notice of a hearing, it provides no similar deadline for a non-movant to respond to the TCPA motion – allowing the party who filed the meritless lawsuit to begin with the opportunity to game the system.

  • HB 2730/SB 2162 provides an exemption for nondisparagement clauses, many of which are signed unknowingly by consumers when they access a business’s website. Congress passed the Consumer Review Freedom Act in 2016 to protect against this; however, HB 2730/SB 2162 would allow for the business to sue the unknowing consumer for expressing their opinion about the business and leave the consumer with no protection under the TCPA.

  • HB 2730/SB 2162 provides a mechanism to allow the party who files the meritless claim to simply nonsuit the action 3 days before a hearing, after the party who has been sued has spent enormous resources preparing and filing a TCPA motion and preparing for the hearing. This provision then further punishes the individual who has been on the receiving end of a meritless lawsuit and will severely impact their ability to even get legal representation to defend against the lawsuit.

  • By incentivizing the party who has filed the meritless claim to wait until 3 days before the hearing to nonsuit and having no repercussions for doing so, HB 2730/SB 2162 will serve as a significant deterrent to people exercising their free speech rights and will chill speech going forward.

Protecting the Democratic Process

The Texas Supreme Court has described the TCPA as having a "unique role in protecting the democratic process that allows our state to function." We need to preserve the integrity of this law and make any revisions to it in a thoughtful manner. HB 2730/SB 2162 is not that approach but rather simply guts the law.

The heart and soul of this statute must be preserved. The Texas Legislature shouldn’t allow this effective and equitable law to be eviscerated and the citizens of Texas to be deprived of its free speech protections.

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