Anti-SLAPP Legislation Bolstered by Courts in Texas

© 2017 The Texas Lawbook.

By Allen Pusey, Staff Writer

(Mar. 3) – In two vastly different and utterly unrelated court decisions last week, the state of Texas declared itself to be among the staunchest guardians of public speech in the nation.

On Friday, the Supreme Court of Texas reaffirmed its view of the expansive reach of the Texas Citizen Participation Act—legislation designed to curtail lawsuits that muzzle public speech called SLAPP lawsuits. And, on the same day, in a Harris County court, a judge ordered the owner of the Houston Aquarium to pay $624,000 in penalties and legal fees for filing a SLAPP suit against an animal rights organization.

The Supreme Court ruling was a per curium decision involving ExxonMobil Pipeline Company, or EMP. The court ruled that even internal communications regarding personnel matters are subject to speech protections, so long as they are, even remotely, connected to matters of public concern.

The underlying lawsuit was a defamation action filed by a former EMP employee who was fired for turning in paperwork indicating he had monitored fluid levels in a chemical storage tank, when it was subsequently learned he had not. The employee claimed that his supervisors had harmed his reputation by presenting the matter in paperwork as a safety issue at his plant.

EMP argued that the communications, though internal to the company, did revolve around a matter of public safety—a potential chemical spill—thus qualifying the defamation action for dismissal as a SLAPP suit under the TCPA. The Supreme Court panel agreed, saying the plain language of the law, as passed by the legislature, required a broad interpretation of public concerns. In denying EMP’s motion to dismiss on that basis, the Dallas Court of Appeals had erred.

“Instead, the court of appeals improperly narrowed the scope of the TCPA by ignoring the Act’s plain language and inserting the requirement that communications involve more than a ‘tangential relationship’ to matters of public concern,” the high court wrote in ExxonMobil Pipeline Co. v. Coleman.

The TCPA gained further weight in the Harris County case, which involved a dispute between Landry’s, Inc.—a privately owned hospitality and entertainment conglomerate—and the Animal Legal Defense Fund, or ALDF, over the treatment of four rare white tigers that have been caged as a customer attraction at the Houston Aquarium since 2003.

In September, the California-based ALDF sent a 60-day letter of intent to sue Landry’s in federal court under the Endangered Species Act to gain a new environment and what the group felt should be proper treatment for the animals. Landry’s reacted with a 30-page lawsuit of its own in a Texas state court, charging ALDF and two animal rights activists with a panoply of charges from business disparagement and civil conspiracy to theft.

Represented by the Houston-based firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, or AZA, the ALDF and one of the local defendants sought dismissal under the TCPA. Not only was the motion for dismissal granted, but Harris County District Judge Steven Kirkland ordered the Landry’s to pay $450,000 in penalties and $174,000 in legal fees, making the award one of the largest ever under TCPA.

“I think these two cases together suggest that TCPA is becoming a tremendous tool for lawyers in Texas,” said Adam Milansincic, of AZA, who was involved in the Landry’s case. “That the Texas Supreme Court would regard hand-written notations in an employer’s internal files as public comment on a public concern is a really important statement by the court for the effectiveness of the TCPA.”

“The Landry’s lawsuit was just the kind of action anticipated by TCPA,” said Milansincic. “It was a multibillion-dollar business trying to quiet legitimate public criticism about the four tigers.”

SLAPP is an acronym for Strategic Lawsuit Against Public Participation, a lawsuit filed to bully or subvert public speech about what would normally be acceptable public issues.

The TCPA was passed unanimously by the state legislature in 2011. Seen as a broader effort at tort reform in Texas, the law allows for the dismissal of lawsuits deemed suspect under the statute and for courts to suspend discovery until a determination is made that the lawsuit is brought in good faith.

At least 43 states have some kind of anti-SLAPP legislation, most often designed to protect citizens speaking in public forums or in the media about what they perceive to be important public issues.

But some anti-SLAPP laws are broader than others, and Texas now falls in line with several states that offer the broadest interpretation of what constitutes the kind of speech it aims to protect from frivolous claims.

Marc Fuller, a partner at Vinson & Elkins in Dallas, feels the Texas Supreme Court has managed to walk a fine line by refusing to narrow the actual language used by the Texas legislature, but still protecting a constitutional right of legal action.

“I think it’s the best of both worlds: reading plain language as plain language but in ways that remain constitutional,” Fuller said. “I think this decision and earlier actions bring Texas in line with the jurisprudence in states like California, which have had this kind of legislation a lot longer.”

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