Texas restores access to balance in free-speech cases

On Behalf of | Apr 5, 2020 | Commercial Litigation

The state of play for so-called “SLAPP” lawsuits and anti-SLAPP laws has shifted several times in recent years both here in Texas and across the country. It may be no surprise if colleagues at your company disagree about the laws and their effect on your company’s ability to manage its reputation.

A major attempt to clarify Texas laws went into effect in Texas last Sept. 1, but companies and the public continue to absorb and debate its meaning.

States act after suits, with or without merit, silence critics

No state’s laws were well prepared for an era when, before a potential audience of billions, nearly everybody can try to interfere with a business negotiation, disrupt a contract, or commit slander or libel. It can happen in a virtual instant. This golden era for defamation, tortious interference with contracts, invasion of privacy, defamation and more makes finding relief in the civil courts more valuable than ever before.

Unfortunately, abuses of civil lawsuits do happen in what critics call “strategic lawsuits against public participation” (SLAPP). They object that the cost and nuisance of fighting a SLAPP, win or lose, is effective in silencing free speech.

Looking to declare a truce between SLAPP and anti-SLAPP

In recent years Anti-SLAPP laws taking a variety of approaches have passed across the country.

The Texas Citizens Participation Act (TCPA) of 2011 aimed to protect free speech. It allows a person who a company SLAPPed with a defamation suit (to use a hypothetical example) to get within 60 days a ruling from the judge on dismissing the suit before it begins.

In addition, if the free-speaking person ultimately wins, the company must pay the person’s attorney fees, court costs, and other defense expenses. The court also has no choice in ordering the company to pay a fine large enough that the company would not try such a suit again.

In recent years, a wide, varied and sometimes surprising coalition of Texans insisted that the 2011 TCPA was so broad that it failed to provide effective protection to any Texan on any side.

Rough guide to new revisions of TCPA

The 2019 update clarifies TCPA’s protections for citizens’ statements and activities having to do with public officials, public figures, and anyone substantially in the public eye. The new TCPA focuses its protections on expression about the community’s interests and concerns on political and social matters.

It also denies government agencies, or officials acting on behalf of those agencies, from seeking TCPA protections.

However, the 2019 law cordons off certain areas where suits that some consider SLAPPs can go ahead. And they can do so with some discretion. These include disputes over trade secrets, non-compete or non-disparagement agreements, deceptive trade practices, doctor and attorney disciplinary actions, evictions, certain family matters and many others.