Texas governor signs anti-SLAPP bill into law

Aaron Mackey | Libel | Feature | June 20, 2011

Texans sued for exercising their First Amendment rights now have a quick way to dismiss such lawsuits after the state’s governor signed an anti-SLAPP bill into law on Friday.

The law, known as the Citizens Participation Act, affords broad protections to parties who are targeted by SLAPPs, or strategic lawsuits against public participation. The lawsuits are usually brought in retaliation for someone exercising his or her freedom of speech. The goal is not necessarily to win the suit, but to intimidate and silence critics.

The new statute is designed to protect the free speech rights of Texans while culling together some of the best concepts from other state anti-SLAPP laws, said Laura Prather, an Austin, Texas, media lawyer who led the coalition behind the legislation.

“This is a phenomenal piece of legislation,” she said.

With Gov. Rick Perry’s signature, Texas becomes the 27th state, along with the District of Columbia, to adopt anti-SLAPP legislation. The U.S. Congress and North Carolina are also considering similar legislation.

The Texas law has several features that should help individuals who claim their free speech rights are being chilled by litigation to dismiss the claims quickly, including establishing a lower legal hurdle for those claiming their speech is protected by the Constitution.

According to the statute, a party sued for what it believes is the valid exercise of his or her First Amendment rights can bring the motion to dismiss within 60 days of being served with the lawsuit.

The party who asks the court to dismiss the claims must show that, more likely than not, its activities constituted expression protected by the Constitution.

If the party can prove his or her speech is protected, the other side has to establish with even greater certainty that it is going to succeed with its lawsuit.

If the party bringing the suit cannot clearly show that it is likely to win, the suit is dismissed.

Under the new law, the court will decide whether to dismiss the claims based on initial paperwork the parties file with the court, a move designed to cut down on the time and expense associated with defending a SLAPP suit. But the statute leaves open the possibility for a court to order limited discovery as it relates to the motion itself.

A losing party must also pay the court costs, attorney’s fees and other expenses of the prevailing party under the law. The judge can also sanction the party who brought the suit to deter him or her from bringing similar suits in the future.

Additionally, the statute broadly defines what it means to speak out on a “matter of public concern,” including topics such as health and safety issues, and goods, products and services.

The law also includes an expedited appeals process for when the trial court denies a motion to dismiss or does not rule on it within 30 days of it being filed with the court.