A handful of laws are making their way through the Texas Legislature that could exacerbate the use of malicious lawfare to silence unwanted speech.
Texas passed the so-called Texas Citizens Participation Act in 2011. This was one of many laws in states around the country designed to curtail what’s called Strategic Lawsuits Against Public Participation, or SLAPP.
It was aimed at protecting individuals and organizations from frivolous lawsuits meant to discourage speech. Without the law, large, wealthy organizations, for instance, could simply launch lawsuit after lawsuit at a person whose speech they don’t like. Even if the plaintiff has virtually no chance to win in court, they can drag someone through the legal process, which is time-consuming and expensive.
The way the law works is that defendants may demand a court dismissal in cases that fall under the law’s provisions. If a trial court denies that motion the defendant may file an immediate appeal and the trial litigation is essentially put on hold until the appeals process is completed.
The 2011 law also allows defendants to collect attorney fees from the plaintiff if they successfully challenge the case.
Some in the Texas Legislature are now trying to weaken the law, which has faced challenges since 2019. Critics say the law’s overly broad application has led to it being used far beyond its original intent and some of its provisions clog the judicial process.
Three similar Texas House and Senate bills aim at removing some of its key provisions. For instance, the Senate bill removes the stay of trial court proceedings while defendants are waiting for an appeals court decision.
This would mean the defendant may often have to wage court battles simultaneously at both the appeals land trial court level.
Another change included in the legislation is that receiving attorney fees would go from mandatory to discretionary for defendants.
Forbes explained why this change is more corrosive than it may seem on the surface.
“This removes what has proven to be a powerful deterrent to abusive litigants who bring SLAPP (‘Strategic Lawsuits Against Public Participation’) suits in the first place,” Forbes explained. “In fact, it would create a bounty for SLAPP plaintiffs. The court would have unlimited discretion to award fees if the lawsuit is covered by the Texas Citizens Participation Act.”
The Texas Free Speech Coalition, a nonprofit, wrote about the danger of the law being curtailed.
The [Texas Citizens Participation Act] allows Texans to speak freely on matters of public concern without having to fear reprisal from powerful interests,” the organization said on its website. “The law has protected Texans of all political persuasion—from pro-life activists to left-leaning media outlets.”
It wrote that changes to the law would “remove critical checks and balances that prevent speakers from being punished while courts determine whether a case has merit.”
