The National Right to Life Committee and the American Civil Liberties Union do not see eye-to-eye on much, but they agree that legislation being pushed by certain Texas Republicans will significantly weaken free speech rights in this state.
Senate Bill 896, which has passed the Texas Senate, severely erodes strong free speech and free press rights under the 2011 Texas Citizens Participation Act, which is a law authorizing judges to quickly dismiss frivolous libel and defamation lawsuits against individuals, families and news organizations.
The TCPA, Texas’ anti-SLAPP law, is widely heralded even by most conservative Republicans as the Texas law that does the most to protect the First Amendment rights of Texas citizens. Legal experts say it is a law that protects David against Goliath and encourages free speech.
The proposed legislation, which is supported by a handful of business leaders and the Texans for Lawsuit Reform, would force individuals sued for speaking out to pay hundreds of thousands — or even millions — of dollars to defend themselves against frivolous lawsuits.
SB 896 would effectively require people sued for defamation to fight the litigation simultaneously in trial and appellate courts, which would be outrageously expensive.
Currently under TCPA, citizens and news organizations such as The Texas Lawbook are able to file motions to dismiss charges under the anti-SLAPP law if the evidence shows that the statements you made were accurate. When judges rule against defendants in those cases, the current law allows Texas citizens and news organizations to appeal to a higher court, including the very conservative, all-Republican Texas Supreme Court, which more times than not rules in favor of defendants in these cases.
One of the strengths of the TCPA is that it stays the litigation while the case is being appealed.
SB 896 ends that. It requires citizens and news organizations continue to battle in the trial court, producing and seeking discovery, conducting depositions and even preparing for trial. At the same time, Texas citizens will have to pay appellate lawyers to litigate in the state appellate courts.
“SB 896 is about making free speech and speaking out more expensive. It is about chilling free speech and people’s voices,” says Haynes and Boone partner Laura Prather.
Prather, who is viewed as the nation’s most foremost expert on anti-SLAPP laws, says appellate decisions can take years to decide. Meanwhile, the Texas citizen or news organization is spending hundreds of thousands of dollars to litigate the case in the trial court.
As prominent First Amendment lawyer Tom Leatherbury wrote in a recent article in The Dallas Morning News, trial courts often allow defamation and libel disputes to proceed to trial even though the appellate courts overwhelmingly reverse such decisions.
In full disclosure, this legislation would severely impact The Texas Lawbook. Media libel insurance carriers have informed us that if SB 896 passes, our premiums will increase significantly. The Lawbook has never been sued. Our writers and editors are thoughtful, conservative journalists who sometimes have to publish articles that include negative details.
Whatever the stated purpose of SB 896 may be, its enactment would certainly have one outcome for journalists: to make it more expensive for us to do our work.
The bottom line: SB 896 turns the anti-SLAPP law in Texas upside down. It gives Goliath, the wealthy, the advantage and puts all the legal and financial burdens on the citizen defendant who simply wants to add her or his voice to an issue.