Sunshine Week 2019 and Anti-Slapp Law in Texas


 
Texas Citizens Participation Act Under Attack

Sunshine Week 2019 and Anti-Slapp Law in Texas
 


12 March 2019 at 3:41:43 PM
salon

Attempts being made via HB 2730 (Leach) , SB 2162 (Paxton)  and HB3547 (Moody) to weaken the strong Texas Citizens Participation Act

RCFP

New legislation would imperil Texas anti-SLAPP law

 
By Posted onMarch 11, 2019

The 2019 session of the Texas legislature is currently considering legislation (House Bill 2730 and Senate Bill 2162) that could threaten the public’s right to speak freely on public issues. The legislation would make it easier to drag a media outlet, journalist or outspoken citizen into court to defend against harassing, meritless lawsuits.

The bills proposed in Texas would undermine the Texas Citizen Participation Act (TCPA), which the state legislature enacted in 2011 and quickly became a model for legislation in other states. The TCPA allows the courts to quickly dismiss meritless defamation and other lawsuits designed to chill speech. Such meritless claims – so-called Strategic Lawsuits Against Public Participation, or SLAPP suits — are routinely filed by people with deep pockets not to ultimately succeed in the courts but to run up legal costs in order to intimidate or chill speech.

Unflinching journalism is essential to expose wrongdoing and hold public officials to account. A free press and accurate news reporting depend upon journalists to identify, investigate and report out stories without concern that the subjects in the story could drain their newsroom out of existence through a meritless court case.

While press freedom advocates are looking for ways to strengthen anti-SLAPP laws in several states, in Texas an organized effort appears underway to undermine one of the models for anti-SLAPP laws across the nation.

HB 2730 and SB 2162 threaten the Texas anti-SLAPP law

As recently as 2018 the Texas Supreme Court noted that the Texas Citizen Participation Act holds an “unique role in protecting the democratic process that allows our state to function.” State ex rel. Best v. Harper, 562 S.W.3d 1, 19 (Tex. 2018).

The Reporters Committee’s concern is that HB 2730 and SB 2162 would, if enacted, significantly undermine key parts of TCPA and, therefore, speech protections in Texas.

For example, House Bill 2730 and SB 2162 would allow the entity accused of filing a meritless lawsuit to drop their case just days before a hearing. This effectively allows an entity to sue a media company for defamation, receive a hearing date, and then drop the lawsuit days before a hearing to avoid a bad ruling and the cost of the defendant’s legal fees.

The bills would also remove clearly articulated categories of protected speech relating to matters of public concern from the Texas anti-SLAPP law. The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern.

This would eliminate clear protection under TCPA for meritless defamation lawsuits. It would also eliminate explicit protection under TCPA for private conversations that contribute to public understanding of news events.

The bills would also make it easier to identify an anonymous speaker by exempting online commenters from TCPA protections and subjecting such commenters to being identified through the discovery process.

Several procedural changes would aid a plaintiff bringing a case against a media outlet. For example, the bills create deadlines for a defendant to invoke the anti-SLAPP statute, but allows a plaintiff unlimited time to reply. And perhaps most egregiously, the legislation allows a plaintiff to avoid paying a defendant’s legal fees by dropping their case at least three days before a hearing on the defendant’s anti-SLAPP motion.

About anti-SLAPP laws

Anti-SLAPP laws are powerful tools to protect free speech on public matters, so having a broadefficient and consequential anti-SLAPP law in place is vital to journalism and accurate, credible news reporting.

An Anti-SLAPP law acts as a gatekeeper, allowing a case to be quickly dismissed (before legal bills mount) if a judge finds no merit to the plaintiff’s arguments.

Anti-SLAPP laws are available to everyone. Anti-SLAPP laws, including the TCPA, protect the conduct (protected speech), not individuals and entities. While these laws are primarily intended to help those with fewer resources defend against deep-pocketed plaintiffs, there are no income or other qualifications to meet to invoke anti-SLAPP. Donald Trump and Exxon have successfully invoked the TCPA to defeat lawsuits.

Strong anti-SLAPP laws apply to speech on matters before a governmental body, topics of public interest, or even more broadly any speech (public or private) on public matters. The TCPA explicitly protects speech on public matters in a variety of contexts, including communications between two parties, which is important for journalism.

They allow a defendant to efficiently resolve a legal case before racking up legal fees defending against a meritless case.

And fee recovery provisions provide monetary consequences for bringing meritless defamation or similar cases. A plaintiff who brings a meritless case that courts dismiss under an anti-SLAPP law may be ordered to reimburse the defendant’s legal costs. 

Anti-SLAPP cases do not significantly burden the courts, as some have charged. TCPA cases represent a fraction of the overall caseload. From 2011 to 2018, of the 83,717 appeals court opinions issued from 2011 through 2018, 0.32 percent (270) related to the TCPA. During that same eight-year stretch, only 15 of the Texas Supreme Court’s opinions dealt with the TCPA.

(Similarly, California’s broad anti-SLAPP law also has a minimal impact on courts. California’s Anti-SLAPP law also faced criticism that it was too broad and adversely affected the judicial system, one analysis showed anti-SLAPP motions in trial courts accounted for only 0.04 percent of all motions filed between 2014 and 2018, and only 1.2 percent of all appeals over the same period.)

TCPA is a model for other states across the country, and significant changes to the TCPA harm efforts to strengthen First Amendment protections around the country.

 

. Lubbock Avalanche-Journal

Some eight years ago, the state legislature passed the Texas Citizens Participation Act, which was intended to provide early dismissal of meritless defamation suits filed by well-heeled plaintiffs looking to frighten and intimidate whistle-blowing critics in an approach that could be called, “If you can’t beat ’em, bankrupt ’em.”

This type of litigation, also known as Strategic Lawsuits against Public Participation (SLAPP) typically had no other intent than to club someone seen as a nuisance into submission through the long and grinding slog of litigation.

Along came Texas’ anti-SLAPP legislation in 2011 that took aim at trying to get these kinds of lawsuits dismissed quickly and shift the burden of costs for attorneys’ fees onto the plaintiff. It is no secret the state’s anti-SLAPP statute has served Texas media members well, since it is often the media’s job to raise awareness of issues in a manner that can be perceived as critical. Texas is one of 28 states with an anti-SLAPP law. Primarily, the statute simply protects Texans’ free-speech rights.

....

According to the Texas Press Association, Leach’s bill “would eliminate the TCPA’s existing definitions for the exercise of our right of free speech and the exercise of our right of petition.” This would virtually erase the past eight years of legal interpretations associated with the statute, creating confusion and most likely leading to litigation. It could result in what is called a “chilling” effect on free speech, meaning individuals who speak out on issues of public concern might no longer be protected under the law.

The bill also would keep Texans from receiving the benefit of Texas law when they are sued in federal court by out-of-state plaintiffs, according to the TPA, and it would also “leave consumers who unknowingly sign non-disparagement clauses without protection when they write a business review.” Finally, the bill would allow someone who files a meritless lawsuit to walk away three days before a hearing with no repercussions and no payment of attorney fees, says the TPA. This, of course, is after the defense has invested significant financial resources in filing a TCPA motion and getting ready for the hearing. This provision of the bill has another impact – increasing the difficulty for someone being sued to retain an attorney.

A Call to Action.

A CALL TO ACTION

A bill has been filed to drastically weaken Texas’ Anti-SLAPP law, which protects news media and their sources from meritless lawsuits and defends our First Amendment rights.

We need you to contact your legislators and urge them to oppose House Bill 2730 by Rep. Jeff Leach, R-Plano and SB 2162 by Senator Angela Paxton, R-McKinney. Here’s the background:

To stave off SLAPP suits — Strategic Lawsuits Against Public Participation —the Legislature passed the Texas Citizens Participation Act in 2011. It provides for early dismissal of meritless defamation suits filed by plaintiffs with deep pockets who try to silence critics by bankrupting them in the expensive pre-trial process. The law includes procedures to get these nuisance suits dismissed quickly, and for the plaintiff to pay the defense’s attorney fees once the case is dead. It has saved Texas media millions, and it has protected the rights of individual Texans to speak their minds on matters important to them.

If it passes as written, HB 2730/SB 2162 would have a chilling effect on individual Texans’ free speech rights. Here’s how:

     o   HB 2730/SB 2162 would eliminate the TCPA’s existing definitions for the exercise of our right of free speech and the exercise of our right of petition. That would erase an entire body of law interpreting the statute, and would spark confusion and litigation over what the new definitions mean. Individuals who speak out on matters of public concern would be uncertain whether they are protected under the law or not.

      o   HB 2730/SB 2162 would prevent Texas citizens from getting the benefit of Texas law when they are sued in federal court by out-of-state plaintiffs.

      o   HB 2730/SB 2162 would leave consumers who unknowingly sign nondisparagement clauses without protection when they write a business review.

    o   HB 2730/SB 2162 would allow a plaintiff who files a meritless suit to simply walk away from the process three days before a hearing with no repercussions and no payment of attorney fees — after the defense has spent enormous resources filing a TCPA motion and preparing for the hearing. This walk-away provision would make it difficult for someone who has been sued to get a lawyer to take their case.

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 and careful manner.

The bottom line is simple: The Texas Legislature shouldn’t allow our citizens participation law to be eviscerated and Texans to be deprived of its free speech protections.

PLEASE CALL YOUR STATE REPRESENTATIVE AND YOUR STATE SENATOR TODAY. YOU CAN FIND THEIR CONTACT INFORMATION AT WWW.CAPITOL.TEXAS.GOV <http://www.capitol.texas.gov/>. SHARE THE ABOVE TALKING POINTS. ASK THEM TO PROTECT AND PRESERVE THE TEXAS CITIZENS PARTICIPATION ACT…. NOT ONLY FOR THE SAKE OF THE MEDIA, BUT FOR THE SAKE OF TEXAS CITIZENS.

 

 


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