(Note: The following opinion piece appeared in the Corpus Christi Caller-Times on Feb. 15, 2019 and is reprinted with its permission).
Why would a law with the positive-sounding name Texas Citizens Participation Act be in danger? From whom? Should you be worried?
The short answer to the last question is yes. You should be worried unless you are insanely rich and don’t value the public good above your own.
What does this law do?
Before 2011, people, businesses and other organizations with deep pockets could make their critics go away by filing frivolous lawsuits. They were frivolous because their purpose was not so much to win in court as to bury their targets in expensive, time-consuming litigation they couldn’t afford. The result was that honest people and grassroots groups making legitimate complaints in the public’s best interest would cease their opposition and in some cases issue a public apology. Imagine being forced to apologize for putting your nose in the way of the fist that broke it.
This kind of lawsuit is called a Strategic Lawsuit Against Public Participation, or, fittingly, a SLAPP.
SLAPPs also are a way to squelch journalistic efforts to inform the public. Left unchecked, SLAPPs could threaten the continued existence of the news media organizations they target. That’s our selfish self-interest in this topic — if you want to think of your right to know as selfish.
The Texas Citizens Participation Act went into effect in 2011, dealing a serious blow to SLAPP suits. It was so overwhelmingly popular that it passed both houses of the Legislature by more than two-thirds. It was the bipartisan work of state Rep. Todd Hunter, R-Corpus Christi, and Sens. Rodney Ellis, D-Houston, and Kevin Eltife, R-Tyler.
The anti-SLAPP law allows the targets of SLAPP suits to seek a ruling within 60 days on whether all they were doing was exercising their right to speak, organize and petition freely. The bar they need to clear is low by design because the First Amendment is number one in importance.
Likewise, the bar that plaintiffs must clear in asserting that they have a legitimate complaint is high, to protect not only free speech but also our judicial system from junk lawsuits aimed mainly at bleeding defendants dry.
And then, if the plaintiffs don’t clear that deliberately high bar, they have to pay the defendants’ legal fees and court costs, taking a further sting out of SLAPPs.
The anti-SLAPP law is one of those rare birds in that the courts have made it stronger and more effective in protecting David from Goliath. Usually it’s the other way around. By the end of 2018, the Texas Supreme Court had issued 15 opinions and the state’s appeals courts had issued 270 related to the anti-SLAPP law.
Who’d want to end it? Why?
Irony of ironies, one of the most effective frivolous-lawsuit-killing reforms in history faces an existential threat from Texans for Lawsuit Reform, whose mission is to stop frivolous lawsuits.
Texans for Lawsuit Reform has sent every member of the Legislature a memo detailing its objections to a law it helped pass in 2011. It’s a long memo, 25 pages not counting the cover letter, with lots of legalese. It’s the kind of thing House or Senate members, even the ones who are lawyers, make their staffs read and summarize for them.
It all but guarantees that legislators will focus more on the messenger than the message. And why not? Texans for Lawsuit Reform is powerful and feared, like the NRA. The temptation for members of the Legislature will be to care more about what TLR wants than about what’s right.
Will your senator and representative succumb to this temptation? It’s in your best interest to ask them.
TLR wants the Legislature to narrow what’s protected by the Citizens Participation Act and remove the mandatory attorney fee and court cost reimbursements. TLR also wants to end the law’s moratorium on discovery during a defendant’s appeal.
The upshot is that the law no longer would have its teeth, claws, or guts.
As of this writing, no bill has been filed, but the table has been set. News organizations in Texas, including this one, stand ready to oppose it.
TLR’s opposition isn’t really all that ironic if you consider that historically its efforts have been more about protecting Goliath from David than the other way around. In fairness, Goliath isn’t always the villain. The term “slip and fall” wasn’t invented for no good reason.
But it’s in the public’s best interest for the protections afforded by the Citizens Participation Act to err on the side of the defendant in a SLAPP suit, even at the expense of a plaintiff whose suit has merit. It’s like protecting the innocent at the expense of letting some criminals go free.