By Will Creeley
When it comes to criticizing the powerful or politically connected, the First Amendment protects the little guy. No matter who you are or how much money you have in the bank, you have the right to speak your mind. Because the Founders knew all too well the danger of granting the government the power to decide who can and cannot speak, the First Amendment was designed to shield speakers from government retribution.
But these days, the government isn’t the only Goliath, and direct censorship isn’t the only way to silence dissent. Over time, the rich and powerful learned a new way to shut up their detractors: forcing them to fight off flimsy lawsuits. By burying critics in a blizzard of costly litigation, would-be censors were able to increase the financial stakes of speaking out — even when the claims filed weren’t worth the paper they were printed on.
These strategic lawsuits against public participation — SLAPPs, for short — threaten our national commitment to freedom of expression and an informed citizenry. What good are First Amendment rights if exercising them means having to shell out for a lawyer to defend against a meritless lawsuit?
So in 2011, former Governor Rick Perry signed “anti-SLAPP” legislation, the Texas Citizen Participation Act, into law. It allows Texans named in lawsuits to secure quick dismissals from state courts if the claim against them is based on their exercise of First Amendment rights, while still allowing plaintiffs who can demonstrate they have meritorious claims to proceed.
Put simply, the TCPA allows a speaker threatened by a bogus suit to ask the court for a quick reality check: Are the claims against me legitimate, or is the plaintiff just trying to shut me up? If it’s the latter, the court can save defendants a lot of time and money with a speedy dismissal, preserving their ability to speak their minds without fear of going broke.
Texas should be proud to be a national leader in protecting the rights of its residents to stand up and speak out. Other states nationwide have looked to the TCPA in passing their own anti-SLAPP laws. But a proposed amendment to the TCPA now making its way through the state legislature, SB 896, would seriously undermine the law’s vital protections.
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. Because protecting free speech is so important, if a court rejects a defendant’s anti-SLAPP motion, the TCPA allows for an immediate appeal — and while it’s being heard, the proceedings are stayed. That pause in the action spares defendants from having to fight off a potentially meritless lawsuit in two courts at the same time.
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.
Deciding whether an anti-SLAPP motion is “frivolous” or exempted by statute is no cakewalk for judges. It involves close questions in an evolving area of the law. And even what one might assume to be the most straightforward grounds for denial — timeliness — has proven tricky. In every Texas Supreme Court ruling on timeliness, the lower court’s determination was reversed.
Add it up, and there’s a real chance a trial court’s anti-SLAPP denial won’t stand up after review.
Requiring a speaker to argue these questions on appeal while simultaneously proceeding with discovery in trial court means they’re wasting time and racking up billable hours on two fronts, fighting what might well prove to be a nonsense lawsuit. Even if the speaker wins on appeal, they’ve still lost time and treasure they shouldn’t have, just for exercising their First Amendment rights. That’s exactly the result the TCPA was meant to prevent.
This isn’t an obscure legal threat. If passed, SB 896’s amendment to the TCPA would have real-world consequences for everyday Texans across the political spectrum who dare to criticize the powerful or wealthy. And no matter what news outlet you rely on, journalists are prime targets for lawsuits filed by powerful interests wishing they’d write about something else. In today’s balkanized political climate, small, independent outfits on the right and the left are particularly vulnerable.
The First Amendment protects everyone’s right to participate in public debates, not just those with money or power. The TCPA bulletproofs the exercise of that right against bad-faith litigation from would-be censors. Because it would gut the TCPA — a powerful protection for all Texans — lawmakers should resoundingly reject SB 896.
Will Creeley is the legal director of the Foundation for Individual Rights and Expression. It’s about SB 896 and the problems it will pose for all Texas citizens if passed. The bill is set for a hearing Wednesday.