Reporters Committee asks Texas Supreme Court to allow anti-SLAPP appeal

Press Release | February 13, 2013

The Reporters Committee for Freedom of the Press, joined by 19 news media and two public advocacy organizations, has filed a friend-of-the-court brief with the Texas Supreme Court asking the judges to clarify the scope of a defendant’s right to appeal orders under the state’s anti-SLAPP law. The right to appeal when an anti-SLAPP motion is denied, which was rejected in the case at hand by the appellate court, is consistent with the legislature’s intent when it passed the law, the brief argued.

As in 28 states, the District of Columbia and Guam, anti-SLAPP (“strategic lawsuits against public participation”) legislation in Texas is designed to protect the First Amendment rights of speakers who may be frivolously sued to inhibit their speech. The Reporters Committee brief noted that “such rights can only be protected by allowing immediate review if an anti-SLAPP motion is denied.”

In Jennings v. Wallbuilder Presentations Inc., two political candidates produced a board of education campaign video about school curriculum guidelines that referred to David Barton, the president of Wallbuilder, as someone “known for speaking at white-supremacist rallies.”

Barton sued for defamation and business disparagement. The women filed a motion to dismiss under the Texas Citizens’ Participation Act, the state’s anti-SLAPP law, which required Barton to provide clear evidence of each claim to avoid having the case dismissed.

The trial court in January 2012 denied the motion to dismiss, and the women filed an interlocutory, or interim, appeal. In August, the Second Court of Appeals ruled that it did not have jurisdiction over the interim appeal.

“The appeals court ruling is completely out of synch with the Texas legislature’s intent and with the interpretations of anti-SLAPP statutes around the country," said Reporters Committee Executive Director Bruce D. Brown. “Because its decision effectively kills a defendant’s right to appeal a special motion to dismiss that was denied by the trial court, we hope the state Supreme Court will review and reverse the appellate decision."

“The Court of Appeals,” argued the brief, “turns the appeals provision language [of the TCPA] on its head by creating an artificial distinction between the constructive denial of an anti-SLAPP motion and an actual order denying relief…. The interpretation by the Court of Appeals effectively transforms the appeals provision from a right of appeal to a right of one-time judicial review — a motion under the TCPA is either reviewed by the trial court or by the appellate court, but never by both.

“The Legislature’s own bill analysis makes no mention of the unique procedural scheme envisioned by the Court of Appeals where appellate review is allowed only when a trial court had not signed an order,” the Reporters Committee brief added.

Joining the Reporters Committee on the brief are: ABC Inc.; A&E Television Networks LLC; A.H. Belo Corp.; Advance Publications Inc.; Belo Corp.; The Associated Press; CBS Broadcasting Inc.; Dow Jones & Co. Inc.; E.W. Scripps Co.; Fox Television Stations Inc.; Gannett Co. Inc.; Hearst Corp.; KVIA-TV, Austin; The McClatchy Co.; Media Law Resource Center; NBCUniversal Media LLC; The New York Times Co.; Public Citizen Inc.; Public Participation Project; The Texas Association of Broadcasters; and The Texas Press Association.

About the Reporters Committee:

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Brief: Jennings v. Wallbuilder Presentations Inc.