Don’t misunderstand interest in improving the law regulating SLAPP lawsuits

By: Hugh Rice Kelly and David Haug, Texans for Lawsuit Reform Foundation

A recent editorial in this newspaper asked, “Why would a law with the positive-sounding name Texas Citizens Participation Act (TCPA) be in danger?” and suggested Texans for Lawsuit Reform (TLR) wants to gut the law to favor big business.

The editorial wasn’t fair to the TLR Foundation and its motives. The intent of this 2011 law was to protect the free speech rights of citizens, an important goal most Texans support. However, TLR Foundation has studied the actual operation of this law and found, despite its “positive sounding name,” the statute is being used by people for reasons having nothing to do with free speech or citizen participation in government.

When the TCPA was created in 2011, the Legislature wrote that its purpose was “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” The intent was to prevent powerful interests from pursuing lawsuits against people who were exercising speech and association to impact public policy, in other words, lawsuits intended to suppress the constitutional rights of citizens. The TCPA provides a way to end those lawsuits early and shift the legal costs to the persons bringing the lawsuits to suppress the freedoms of speech and association.

A common example would be an unscrupulous land developer suing citizens who oppose zoning or deed restriction changes, or who oppose a new government project in their neighborhood. Or a drug company wanting to sue citizens who want to protest (say) prescription drug pricing policy, for the purpose of intimidating them with legal expenses. TCPA can make abusers pay for those suits.

However, the TCPA law is unexpectedly being used to put an early end to all kinds of lawsuits that have nothing to do with safeguarding basic constitutional rights or protecting the rights of citizens to participate in government. For example, one Texas lawyer wrote hundreds of letters to Texas businesses, threatening to file harassment lawsuits for alleged violations of the Americans with Disabilities Act. The lawyer essentially attempted to blackmail these businesses, telling them he would forgo filing the lawsuits if they would pay him a few thousand dollars. The State Bar of Texas sought to discipline the lawyer for the obvious abuse of his license to practice law. The lawyer responded by arguing that the TCPA required dismissal of the State Bar’s disciplinary action because he was merely exercising his constitutional rights. The trial court agreed, dismissing the State Bar’s enforcement action.

The TCPA has also been used to dismiss a legitimate lawsuit filed by a Texas business that was suing a former employee to prevent the theft of its trade secrets. And it is being used to dismiss court orders in family law cases that protect children from inappropriate actions by uncaring parents.

These type of actions take the TCPA well beyond its stated purpose of protecting the broadcast and print media and citizens using speech or association in the public square.

The TLR Foundation paper can be found at www.tlrfoundation.com. The TLR Foundation paper makes no specific recommendations to amend the TCPA. Instead, it initiates a reasoned discussion about whether the statute should be amended by the Legislature to better focus its provisions on the abuses that led the Legislature to enact it in the first place.

The Legislature regularly reviews, debates and amends laws that are passed to ensure they are serving their correct purpose. It is up to the Legislature to decide if the law is doing what it is supposed to do, and if not, how to move forward in the best interest of Texans.