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Powerful Lobby Groups Take Aim at the Texas Anti-SLAPP Statute

By Laura Prather

As Tennessee passes SB 1097 (its anti-SLAPP statute), the other state that begins with T (Texas) seeks to overhaul its anti-SLAPP law.

Even before the session started, the writing was on the wall – it was going to be a fight to preserve the Texas Citizens Participation Act ("TCPA"). Virtually every article in legal journals and newsletters was about the "abusive uses" of the TCPA; for example, lawyers filing anti-SLAPP motions in response to anti-SLAPP motions or motions for sanctions. Or, the focus was on the TCPA's broad reach, raising questions about its use in trade secret and covenant not to compete cases or in attorney disciplinary proceedings. Seldom was the discussion about whether a litigant brought forth any evidence to support its claim (prong 2). Instead, all eyes were on the types of cases the law reached and the mechanisms to which it could be applied. Those unfamiliar with broad anti-SLAPP statutes viewed the law as something that should only apply in defamation cases, ignoring the fact that creative lawyers can plead around defamation and that retaliatory actions come in all forms. In addition to the critical coverage the TCPA received, grumblings surfaced from lawyers, judges and prior supporters of the law, including the very powerful Texans for Lawsuit Reform ("TLR").

By the time session began on January 8, 2019, TLR had united forces with the Texas Trial Lawyers Association, the Texas Civil Justice League, the Family Law Bar, the Texas Association of Defense Council, and the Texas Medical Association – organizations with a veritable Who's Who of lobbyists at the Capitol. By the beginning of February, TLR had published on its foundation website its analysis of the TCPA entitled: "Texas's Anti-SLAPP Statute: An effective statute but is it too broad?" They also distributed a hard copy to every lawmaker's office in the Capitol. Although the analysis indicated it would suggest reform measures, the only solution offered was to refer back to a bill from the prior session that would have effectively gutted the law. Curiously, though, when the analysis was referenced in a newspaper editorial, TLR indicated the organization was only on the "sidelines" of the issue.

While this was transpiring, the Capitol was adjusting to a new Speaker of the House and anticipating who would be in the leadership that he named. When the committee chairs were announced, the TLR candidate for Chair of Judiciary & Civil Jurisprudence (Jeff Leach, R-Plano) was named. This is the committee that would hear any bill impacting the TCPA. The original House sponsor of the TCPA (Todd Hunter, R-Corpus Christi) was not given a chairmanship this session, and the original Senate sponsor had left the Senate. By the time the bill filing deadline arrived (March 8th) there were 3 bills in the House and 2 bills in the Senate hoping to "reform" the TCPA.

HB 2730 was filed by Judiciary Chairman Jeff Leach; HB 4575 was filed by Ways and Means Chairman Dustin Burrows (R-Lubbock); and HB 3547 was filed by Speaker Pro Tem Joe Moody (D-El Paso). The Moody bill was a proactive approach at reform that was supported by the media industry. Not surprisingly, though, the bill that was going to move was the Chairman of Judiciary's bill, HB 2730. HB 2730 was also the only bill to have a Senate companion (SB 2162) and was carried by Sen. Angela Paxton (the wife of Texas Attorney General Ken Paxton).

The key provisions of concern in HB 2730/SB 2162 were:

  • It would eliminate the TCPA's existing definitions for the exercise of the right of free speech and the exercise of the right of petition, which would erase an entire body of law interpreting the statute, and would spark confusion and litigation over what the new definitions (or lack thereof) mean.
  • It expressly stated that the law was procedural and would have prevented application in federal court.
  • It exempted breach of non-disparagement contracts from the law's coverage.
  • It would allow a plaintiff to nonsuit the case 3 days before a hearing with no repercussions and no payment of attorney's fees.

By all measures, the bill would have taken the teeth out of the TCPA.

Protect Free Speech Coalition Formed

In hope of having a voice in the process, we built the Protect Free Speech Coalition – a coalition consisting of more than 620 organizations that believed in the purpose behind the TCPA and wanted to preserve the integrity of the law. In addition to national and local broadcasters and newspapers throughout the state (and beyond), the Coalition included: the ACLU, the BBB, Common Cause, Earth Rights International, Electronic Frontier Foundation, the Freedom of Information Foundation of Texas, Grassroots America, Greenpeace International, Institute for Justice, League of Women Voters, National Coalition Against Censorship, National Press Photographers Association, PEN America, Protect the Protest, Public Citizen, Public Participation Project, R Street Institute, Texas Campaign for the Environment, Yelp Inc., and more.

The Coalition launched a website featuring its membership list, the potential impact of the legislation, and examples from throughout the State of how the law had worked exactly as intended. www.protectfreespeechcoalition.com. Some of the categories of demonstrated need listed on the website show how the TCPA helps: Digital Communities, Public Officials, Non-Profit Organizations, Domestic Violence and Sexual Harassment Victims, Consumers, Businesses, Law Enforcement, and Those Who Speak Out. In addition to the Coalition, the media became engaged in writing newspaper editorials and featuring broadcasts about how the law had helped average citizens. All of this lead to having a seat at the table for the negotiations on the bill.

The week after his bill was filed, Chairman Leach held a "stakeholders" meeting including the powerful lobby groups listed above (TLR, TTLA, TMA, etc.), AT&T, Institute for Justice and the Protect Free Speech Coalition. Although we were severely outnumbered, we brought a citizen to tell her story about how the TCPA had helped her. In a nutshell, she was taking care of her special needs brother and placed him in an assisted living community. Unfortunately, the facility did not properly care for him, and when she brought her concerns to the facility's attention, the problems were not resolved. Among other things, her brother went months without necessary medication. Ultimately, she filed a complaint with a regulatory agency and posted an online review of the facility. In response, the facility summarily evicted her brother (without proper notice) and sued her for filing the complaint and posting the review. After she hired a lawyer and spent several thousands of dollars filing the motion to dismiss, the facility offered to drop the lawsuit if she would remove the online review. She declined the offer, and, because of the TCPA, her attorney (J.T. Morris) was able to get the case dismissed and fees awarded to her. After she told this compelling story to the room full of stakeholders (many of whom had only heard from judges and lawyers complaining about the law), the bill sponsor was so moved, he announced the 3-day non-suit provision would be removed from the bill. He then appointed a smaller "working group" to try to come to an agreement on a committee substitute.

After that, several hours of working group meetings and discussions began. The entire time, broadcasters, newspapers, citizens, consumers, and liberty groups were outnumbered, but we benefited from the intellect and willingness of MLRC members to help in the process. What became readily apparent in the discussions was how different people's views of the TCPA were. Those working group meetings, as well as meetings with Judiciary committee members, enlightened us to the fact that many had only heard about the law's abuses and not about the good it has done. Still, by the time the committee hearing took place (April 1), the proposed committee substitute was a drastic improvement from the original bill. There were, however, still some important concerns: most significantly, the new definition for "matter of public concern" was so narrow, it would only protect a fraction of instances where those who speak out are on the receiving end of a meritless lawsuit.

At the April 1st hearing, the committee heard from all of the lobbyists who were supporting the bill and from judges and practitioners who had concerns about the existing law, but they also heard from more than 3 dozen citizens ... citizens who had benefited from the TCPA, as intended. The hearing lasted for 4 ½ hours, and witnesses ranging from domestic violence victims to online commenters, from liberty organizations to right to life organizations, as well as review sites such as Yelp and Rip Off Report, all spoke about the need to preserve the integrity of the law and to continue to provide a broad definition of matter of public concern so the TCPA's applicability would continue to be broad. Ultimately what came out of the committee incorporates the Snyder v. Phelps definition and includes a provision expressly for speech about public officials and public figures. The committee substitute also still includes components that give the law teeth (i.e. discovery stay, interlocutory appeal and mandatory fees). There are, however, a number of ways the bill will limit the TCPA, both from an applicability standpoint and from the standpoint of what pleadings give rise to a motion being filed.

The bill is currently set to be heard on the House Floor on Monday, April 29th. So, stay tuned...

Laura Prather is Co-Chair of Media & Entertainment Practice Group at Haynes and Boone, LLP.

 
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