Hands off Texas anti-SLAPP law

When Carol Hemphill noticed signs that her adult brother was being neglected by the assisted living facility in Texas where he lived, she turned to the internet to warn others. Hemphill posted honest, negative online reviews of the facility. In response, she was slapped with a potentially financially ruinous lawsuit.

Thankfully, a law that protects Texans from frivolous lawsuits attacking freedom of speech, the Texas Citizens Participation Act, came to the rescue. Under the TCPA, the lawsuit was dismissed and Hemphill was even awarded her attorneys fees.

But new proposals by Texas lawmakers risk gutting the strong protections the TCPA provides to defendants like Hemphill — as well as journalists — who face meritless lawsuits based on speech, known as SLAPPs. One proposal would repeal the part of the law that pauses discovery and trial during appeals of a TCPA motion so defendants don’t need to keep spending money on lawyers. The other would get rid of the mandatory award of attorneys fees to a SLAPP victim who wins a TCPA motion.

To understand how these bills could impact Texans who exercise their freedom of speech, we spoke to Hemphill and JT Morris, who represented Hemphill while in private practice and is now at the Foundation for Individual Rights and Expression.

Carol, what was your first reaction when you were sued for defamation over the online review you posted of your brother’s assisted care facility? What were you most worried about?

Hemphill: I was completely blindsided and shocked when I was served with the lawsuit. In the ensuing weeks, my emotions ran the gamut from infuriation over the callousness of the owner’s action to an overwhelming fear of what it could mean to my family. In good faith, I posted an honest and even mild review, given what I could have said. I believed I had an obligation to advocate for my brother and the seniors I loved and worked with. My intention was to protect the most vulnerable from what I believed was a very bad situation. I had absolutely no idea that one could be sued for such a thing!

As this wasn’t something I could just ignore, my initial concern was to find an attorney. Where do I begin? What kind of attorney? I was fortunate to know someone who told me about the new TCPA and then pointed me in the direction of the most amazing First Amendment attorney. My next concern was how will I pay for this? The possibility that under the TCPA I could recover my attorney fees and court costs was somewhat reassuring and allowed me to move forward.

JT, how did you come to represent Carol, and why did you want to take her case?

Morris: There’s not much that gets me more fired up than someone trying to bully another person into silence. And after hearing Carol tell her story, I was pretty fired up! No one should get sued for speaking out to the community about wrongdoing at a place that many were entrusting to care for their loved ones. Knowing we could lean on the TCPA made it even easier to fight for Carol’s freedom of speech, because we knew Carol would recover her legal fees.

How did the process of defending yourself from this lawsuit impact you and your family, Carol?

Hemphill: I have tremendous faith and a community of friends and family that have seen me through every adversity, but this nearly broke me.

The perpetual uncertainties, lies, and bullying were so debilitating that I actually had to seek medication. Working, taking care of a family, and navigating the care of a loved one in assisted living are stressful on their own, but the lawsuit added another layer of anxiety that made life and relationships difficult.

Financial concerns were tremendous. We were fortunate to have retirement funds to draw from, but the hope that these funds would one day be returned allowed us to continue.

I would not wish this experience on anyone, and the number one goal of the TCPA should be as a deterrent to those who seek to silence legitimate speech. We survived this and have a renewed faith in the judicial system, but the time, expense, and stress involved in fighting a lawsuit were monumental. At the time, a dear friend of mine made me a T-shirt that read, “Those who tried to bury me didn’t realize I was a seed.”

In addition to defending Carol, you’ve also defended other SLAPP victims, JT. Does her case fit a typical profile of a SLAPP? What other kinds of SLAPPs are common?

Morris: Carol’s case was a textbook SLAPP: A deep-pocketed business that serves the community sues a concerned citizen over honest, good-faith criticism. Like all SLAPPs, it faced no shot in court, but that wasn’t the point — the point was to intimidate Carol (and others) into silence under the pain of how much fighting back would cost.

From local politicians suing their critics to the president suing the press and pollsters for unflattering coverage, that goal of intimidation through litigation is the common thread for SLAPPs. And it’s why strong anti-SLAPP laws, like the TCPA, are so important for protecting Americans’ expressive freedoms.

Carol, why was it important for you to be able to recoup your attorneys fees and costs after you won your anti-SLAPP motion?

Hemphill: Early in the process, the owner (of the assisted living facility) made me an offer. If I gave him $5,000 for unnamed damages and took down the review, he would drop the lawsuit. It was clear that the lawsuit was simply a means to an end — to get me to withdraw the review.

The decision to reject the offer was made easier with the assurance of being awarded attorney fees. I knew that the review was honest and necessary, and I don’t respond well to bullying, so the TCPA allowed me to proceed. Were it not for the TCPA, I believe that I and others would probably have relented at this point, and the public would not have access to important decision-making information.

The owner of the facility appealed this all the way to the Texas Supreme Court (losing at each step), impacting nearly two years of our life at a cost of over $55,000. Those funds came from our retirement account, and as we are older, it would have drastically affected our finances were we not to have them reimbursed.

The public needs to be assured that they are free to speak out about potentially harmful situations without fear of serious financial repercussions. For those seeking to silence consumers, the mandatory satisfaction of attorney fees and court costs surely have been an effective deterrent.

JT, a new proposed bill would change the TCPA to make the award of attorneys fees to a winning defendant discretionary instead of mandatory. What could be the impacts of that bill if it passes?

Morris: It would render the TCPA toothless. Ensuring that those who win dismissal under the TCPA can recover their attorneys fees achieves two very important things. First, it makes potential SLAPP filers think twice before suing. And second, it makes certain that those sued for exercising their First Amendment rights don’t face the impossible choice between self-censorship and blowing their life savings on legal fees.

The Constitution — not one’s finances — guarantees the freedom to speak out about issues affecting their community and government. Making TCPA fee-shifting discretionary would undermine that freedom for many Texans.

Another new bill would remove the automatic stay of proceedings during certain appeals of the denial of a TCPA motion. JT, how would that change affect SLAPP victims and the legal system?

Morris: Right now, a SLAPP victim can appeal a denial of their TCPA motion to dismiss without having to also fight in the trial court. That’s a good thing: Appeals courts regularly overturn those denials, and it would defeat the TCPA’s purpose if a SLAPP victim has to defend their freedom of speech in two courts at the same time. But this new bill would force SLAPP victims to do just that in several situations. For most Texans, the cost and stress of fighting in two courts at once would be overwhelming, leading to self-censorship — which is exactly what SLAPP filers want.

Finally, Carol, as someone who used the TCPA successfully to defend your right to free speech, what do you want the public to understand the most about the law and the experience of being SLAPPed?

Hemphill: The experience of being SLAPPed is a nightmare that no one should have to experience. It is an extreme tactic used by business owners and others to attempt to silence consumers. Since this ordeal, I have never left another review — ever! This is a shame. Every day we rely on the honest evaluations that free speech allows. Whether it is the review of a product on Amazon, or a more critical determination as to where to move a disabled loved one, reviews and firsthand information are important tools that the public use in their decision-making.

It is imperative that the consumer protections the TCPA affords remain in place if the public is to get an honest representation of a product or business. The TCPA sends a very clear message to bullies who would use the judicial system to exact revenge and silence consumers.