Opinion: Bill endangers the ability of Texans to speak freely

May 5, 2023   •  By David Keating   •    •  

This piece originally appeared in the Austin American-Statesman on April 26, 2023.


Texans should take pride in the fact that their state has one of the strongest free-speech protections against frivolous lawsuits in the country.  Unfortunately, a bill currently making its way through the Texas Legislature would remove some of these protections and damage the ability of Texans to speak freely.

This protection, known as an “anti-SLAPP” statute, prevents abuse of the legal system by providing defenses to those who get sued for exercising their First Amendment rights.  “SLAPP” means “strategic lawsuit against public participation.”

As that name suggests, SLAPP suits occur when a party weaponizes litigation to suppress speech that he or she dislikes, typically involving a claim of defamation. The costs and other challenges created by such suits can punish speakers simply for speaking.  Moreover, the specter of SLAPP suits can “chill” speech, which means discouraging individuals from speaking at all.

Under the Texas Citizen Participation Act (TCPA), Texans enjoy robust safeguards against SLAPP suits.  These anti-SLAPP provisions allow citizens to exercise rights of free speech and political participation without fear of reprisal from censors who can afford lawyers.

In its current form, HB 2781 (and its identical Senate companion, SB 896) would compromise the effectiveness of the TCPA by weakening an essential procedural protection for speakers: the right of an immediate appeal if a trial court denies an anti-SLAPP motion. The measure would remove the stay of a case under appeal if an anti-SLAPP motion to dismiss is frivolous, untimely or subject to an exemption.

Put more simply, the proposed change would mean that many more speaker defendants would have to proceed with an expensive litigation process.  A defendant now has a right to an immediate appeal of a denied anti-SLAPP motion before the trial itself would commence.

The burden of a trial court error in a case like this would fall disproportionately on a speaker/defendant, as the trial would begin even though the ruling is under appeal.  A trial in court is expensive and stressful.  Moreover, if the anti-SLAPP appeal ultimately succeeds, that unnecessary trial work would burden not only the speaker defendant, but the plaintiff, the courts, and the taxpayers who fund the court system.

ut trial courts do sometimes make mistakes.  That ability to appeal an anti-SLAPP motion denial can allow an appellate court to correct a potential error that the trial court made.  This, in turn, means that the defendant can avoid the costly trial that the TCPA is designed to prevent.

That’s why preserving the right to an immediate appeal of a denied anti-SLAPP motion is crucial.  States with the most effective anti-SLAPP laws protect speakers throughout that appeals process, and Texas is among those exemplary states.  As currently written, HB 2781 / SB 896 would weaken the TCPA and give an advantage to plaintiffs who file frivolous lawsuits seeking to punish or chill speech.

Strong anti-SLAPP laws like Texas’ encourage potential plaintiffs to think twice before hauling speakers into court with weak or frivolous cases.  These laws protect defendants who have merely exercised their First Amendment rights.

Anti-SLAPP statutes provide a relatively quick, cheap, and effective way to dispose of weak, anti-speech lawsuits. The proposed law would significantly dilute this protection in Texas.  That’s why numerous organizations across the ideological spectrum, from ACLU-Texas to National Right to Life, have rightly raised alarms about the dangerous effects of these bills.

To preserve robust protections against SLAPP suits, the Texas Legislature should reject the changes and keep the law intact.  In doing so, the Legislature will ensure that Texas continues to be a leader in its commitment to free speech for all citizens.

David Keating

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