At a recent Texas House hearing to consider changes to the Texas Citizens Participation Act, a select group of witnesses offered up some common misperceptions about the law. The speakers claimed that TCPA cases account for fully 40 percent of the docket in the Dallas court of appeals and that tort reform groups never supported the law, when, in fact, both of those assertions are demonstrably false.
The speakers also riled up lawmakers with tales of TCPA abuse, recounting one specific offender who has filed frivolous TCPA motions, without so much as mentioning that some claims were filed outside the reach of the TCPA in federal court and that the plaintiff failed to pursue the sanctions mechanisms already available under current state court rules.
Witnesses who could have countered these claims — free speech advocates, conservative talk show hosts, domestic violence victims, right-to-life champions, consumer reviewers and others who support the law — were not invited to testify and were told to submit written testimony that was not posted on the public portal.
The House’s selective discussion reflects the one-sided conversation that’s currently being had over the TCPA. While the law is by far the most significant safeguard of free speech rights for Texas citizens — with protections that must be jealously guarded — that fact often gets lost (or blocked) from the public discourse as powerful interests call for “reforms” that would gut the TCPA.
The truth is that the TCPA allows Texans to speak freely on matters of public concern without having to fear reprisal from powerful interests. The TCPA allows for an expedited motion to dismiss baseless lawsuits in order to spare Texas citizens from intrusive and expensive legal proceedings. To ensure that protection, the TCPA includes an automatic stay of discovery and the right to pursue an interlocutory appeal of a trial court’s decision. The law has protected Texans of all political persuasions — from pro-life activists to left-leaning media outlets.
Critics of the TCPA are now working to scale back its protections — in SB 336 sponsored by Texas Sen. Bryan Hughes and its companion HB 2459 sponsored by State Rep. Jeff Leach — by eliminating the discovery stay and stay of trial court proceedings during an interlocutory appeal in cases where a trial court has determined that the motion to dismiss is untimely, frivolous or covered by an exception to the law. These “reforms” would remove critical checks and balances that prevent speakers from being punished while courts determine whether a case has merit. The law’s critics, without evidentiary support, suggest these changes would merely weed out lawsuits to which the TCPA clearly does not apply. But there are many cases in which trial courts have gotten their initial rulings wrong on timeliness, frivolousness and the exceptions — sometimes more than once — which would have subjected defendants to costly proceedings only to later be vindicated on appeal.
Timeliness is often not clearcut.
For instance, when the Houston Chronicle and KHOU reported on a shooting near the Status Lounge nightclub in 2016, the nightclub sued the news outlets for defamation. The media defendants filed a TCPA motion to dismiss, and the trial court initially held the motion was untimely because the motion was not filed during a statutory abatement period for defamation claims — an impossibility under the law. An interlocutory appeal was taken, and the underlying case was stayed until the appellate court reversed and sent the matter back down for further review.
On remand, however, the trial court again denied the TCPA motion, refusing to apply the fair report privilege, and the media defendants filed a second appeal. Finally, after two trips to the court of appeals and nearly five years after the initial filing, the case was dismissed once and for all. The good news is that scarce judicial resources were not wasted during this process and the SLAPP victims were not saddled with unwarranted discovery and trial proceedings while the courts determined if the case had merit.
If the current “reforms” had been in place, the trial court would have tried the underlying case to a jury while the TCPA ruling was considered on appeal, leaving the courts to unwind these parallel proceedings. This does not even consider the high likelihood of satellite litigation over privileges and discovery fights. All of this would further clog the court system and saddle the SLAPP victim with costly and invasive discovery — in some cases, putting them out of business or silencing their speech by forcing them to give up the fight against a meritless case. This is not tort reform; this is lawsuit abuse.
Exemptions are still being interpreted.
Trial courts also misapply the statutory exemptions to the TCPA. In Castleman v. Internet Money Limited, the Texas Supreme Court reversed rulings by the trial court and the Amarillo Court of Appeals that held the TCPA’s commercial-speech exemption barred the defendant’s motion to dismiss. The Supreme Court issued its opinion nearly two years after the trial court’s ruling; if the TCPA’s mandatory stay had not been in effect, the courts would have been forced to reckon with two years of parallel proceedings when the Supreme Court remanded.
As the Supreme Court noted in its opinion, the TCPA’s commercial speech exemption “is no model of clarity.” Six years later, Texas courts are still defining the contours of that exemption and others in the law, with appellate courts frequently reversing trial court rulings on these issues, as the Third Court of Appeals did in Hanna v. Williams.
Frivolousness and intent to delay are overruled 88 percent of the time.
In 2018, a Houston trial court found that a TCPA motion filed in Sanchez Oil & Gas Corp. v. Terra Energy Partners LLC was solely intended to delay. On appeal in Reynolds v. Sanchez Oil & Gas Corp., the First Court of Appeals affirmed on the grounds that plaintiff’s amended petition had not stated new claims. After the Texas Supreme Court clarified what constitutes a new legal action for purposes of the TCPA, the First COA revised its decision and reversed the trial court. After rehearing, the First COA issued its final opinion granting the TCPA as to two of the plaintiff’s claims — more than five years after the trial court’s initial ruling.
These are not isolated examples. An analysis by the Institute for Free Speech found that in nearly 88 percent of cases in which a frivolousness finding was appealed, it was overturned by the appellate court. IFS found similar patterns in rulings on the statutory exemptions (reversed 63.4 percent of the time on appeal) and timeliness (overturned 53 percent of the time). The high rates of reversal belie the claims of critics who suggest the TCPA’s protections can simply be eliminated for these categories of cases without undermining its purpose. Instead, the statistics show how important it is to retain the TCPA’s protections, since trial courts often get it wrong when ruling on these cases.
TCPA accounts for just .5 percent of the appellate docket; the Healthcare Liability Act occupies more appellate bandwidth.
The reality is that the TCPA, which was enacted in 2011, is not unlike many laws that create a new regime in the courts. As courts define the proper contours of the law, its protections may be abused by creative pleaders. (In fact, one of the most vocal critics of the TCPA has used the law in ways it was never intended, bringing TCPA motions against the filing of a TCPA motion — an issue which was addressed in the 2019 amendments to the law.)
In that way, the TCPA is similar to the Texas Healthcare Liability Act, which was passed in 1995 and has been hailed as the flagship of tort reform efforts in Texas. Even with a two-decade head start, the Texas Healthcare Liability Act continues to occupy significantly more of the docket in Texas courts than the TCPA. According to a study by the Reporters Committee for Freedom of the Press, between 2011 (when the TCPA went into effect) and 2023, TCPA cases comprised only .5 percent of the total opinions from the Texas courts of appeals and the Texas Supreme Court, while cases involving the Healthcare Liability Act have accounted for .83 percent of the docket in those courts during the same period.
Texas citizens don’t have a powerful lobby; but changing the goalposts compounds the problem.
The Texas Healthcare Liability Act benefits powerful interest groups, so no one is lobbying to undercut its protections. With the TCPA, it seems every time some powerful interest group doesn’t get its way, they cry foul and run to the Legislature for relief. Unfortunately, everyday Texas citizens lack an influential lobby to counteract these “reform” efforts, and lawmakers are far too quick to use tales of supposed TCPA abuse to suppress their constituents’ free speech rights. These unnecessary amendments only compound the problem for the courts, which are then forced to interpret new versions of the law, leaving the goalposts in a constant state of motion.
The reality is that the TCPA is working as it was intended. Trial courts are not flooded with meritless motions to dismiss, and the TCPA does not clog the appellate courts’ docket. And as courts continue to interpret and apply the law, the opportunities for abuse will further diminish. The current efforts to “reform” the law will only undercut its protections, diminishing the ability of Texans to speak freely without fear of retaliation and harming democracy in the process.