This Texas law is being used to protect extortion and theft. It needs fixing

By: E. Lee Parsley

The United States of America cannot exist without free speech. It is one of the lynchpins of our society, a freedom that many of us take for granted and part of what makes us the greatest country in the world.

That’s why the Texas Legislature passed the Texas Citizens Participation Act (TCPA) in 2011, to prevent powerful interests from pursuing lawsuits against people who are exercising their right to free speech to impact public policy.

A lawsuit that is being pursued to silence someone who is speaking on a matter of public importance is called a Strategic Lawsuit Against Public Participation, or SLAPP.

In a prototypical SLAPP, a powerful entity is suing a person for alleged defamation arising from the person speaking out about an action the entity is taking. The primary purpose of the SLAPP is to silence the defendant, because defending a lawsuit is costly, time-consuming and emotionally draining.

The TCPA provides a way to quickly end one of these cases and shift the legal costs to the person who filed the lawsuit.

When the TCPA was created in 2011, the legislature described its purpose this way: “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.”

A recent study by the Texans for Lawsuit Reform Foundation (available at www.tlrfoundation.com) found that the TCPA is being used to dismiss lawsuits that have nothing to do with protecting free speech. In fact, it’s being used in defense of things most Texans would agree shouldn’t be defended.

The case of one unscrupulous Texas lawyer is an example of how the statute is being misused.

This lawyer wrote hundreds of letters to Texas businesses, threatening to file lawsuits against them for alleged violations of the Americans with Disabilities Act. The lawyer said he would forgo filing the lawsuits if the businesses would pay him a few thousand dollars, essentially attempting to blackmail them.

The State Bar of Texas sought to discipline the lawyer. The lawyer responded, arguing he was merely exercising his right to free speech and that the TCPA required dismissal of the State Bar’s disciplinary action. The trial court agreed, finding that the plain words of the TCPA required the dismissal of 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 designed to protect innocent children in family law cases.

To be clear, blackmail and theft of trade secrets are not constitutionally protected. Using the TCPA to protect anti-social actions is not what the Texas Legislature intended when it passed the law. These misuses of the TCPA are well outside of the protections that we expect from the Constitution.

The TLR Foundation paper initiates a discussion about whether, given the way the TCPA has been used, the statute should be amended by the legislature to re-focus it on protecting First Amendment rights, while making clear that it is not a tool to shield wrongdoers from the consequences of their unacceptable conduct.

We believe — and think most Texans agree — that when a law is not working as intended, our state leaders have an obligation to fix it.

We agree with the Star-Telegram and all Texans that protecting free speech is critical. But protection of free speech does not need to be accompanied by the shielding of extortionists, thieves and other bad actors from the consequences of their actions.

E. Lee Parsley is general counsel for Texans for Lawsuit Reform.