Texas anti-SLAPP bills risk chilling consumer speech

This is the third in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the first Q&A with Carol Hemphill here and the second Q&A with Charles Ornstein here.

The nonprofit consumer advocacy organization Public Citizen understands that strong laws against frivolous lawsuits targeting free speech, known as strategic lawsuits against public participation, are when it comes to supporting people’s right to alert others about problematic business practices.

That’s why the Public Citizen Litigation Group has represented several Texas consumers sued over their speech. The state’s anti-SLAPP law, the Texas Citizens Participation Act, has been critical to those defenses.

For instance, the group successfully used the TCPA to defend Robert and Michelle Duchouquette, who were sued by the Dallas pet-sitting company Prestigious Pets for $1 million after posting a negative review of the company’s services on Yelp. Prestigious Pets had tried to silence the Duchouquettes using a nondisparagement clause inserted into the fine-print of the pet-sitting contract.

In another case, the group used the TCPA to ward off a legal claim against Michelle Lanum, a woman who was sued for criticizing a medical study she participated in on social media. The plaintiff dropped the case after Lanum’s lawyers informed her it would defend Lanum using the TCPA — which provides for the mandatory award of attorneys fees to SLAPP victims who win their case in court.

Now, however, the Texas legislature is changing the TCPA to make it more expensive for SLAPP victims to defend themselves and more difficult to recover their attorneys fees. We spoke to Public Citizen Litigation Group attorney Paul Levy about why the TCPA matters to consumers and what impact these changes could have on free speech. The interview has been lightly edited for length and clarity.

You’ve defended several people sued in SLAPPs in Texas using the Texas Citizens Participation Act. Can you explain how the law helps protect freedom of speech?

It does a few things. First of all, it provides an easy way out from non-meritorious claims, by putting the burden on somebody who has brought a claim to show that they have not only allegations but evidence to support their allegations, and giving the defendant an opportunity to show that it has valid defenses to claims that would make them untenable.

It also not only saves the courts from having to spend their time on frivolous matters, but much of the damage that frivolous or weak claims impose on free speech is the intimidating effect of making people spend their time and their good money on litigation, distracting them from what else is going on in their lives.

This is particularly problematic for people whose speech doesn't bring them any money, but who have just spoken out on a matter of public concern or public interest. If they have to spend a lot of money to defend what they've said, they've already lost in many ways. And the prospect of having to make these defenses shuts people up and deprives the public of the benefit of their speech.

And the final thing that these anti-SLAPP laws do is provide some financial recompense to the people who've had to defend their speech, and it encourages lawyers to take up these cases — just as, for example, the consumer laws provide a guaranteed source of an attorney fee award if lawyers are willing to bring consumer protection cases or wage and hour cases or discrimination cases.

In the same way, the anti-SLAPP laws in Texas and California — and the other jurisdictions that have good anti-SLAPP laws — have encouraged the creation of a bar that's ready to defend free speech. And that's a really important function.

Could you talk about the common types of SLAPP victims in your experience? Who is the type of person who gets SLAPPed and why?

It's somebody, for example, who's posted a comment on a review site about an experience they've had with a local merchant. The Prestigious Pets case is a perfect example of that. These are people who had a bad experience with a pet-sitting firm and got sued for a substantial amount of money for having dared to express negative comments — and really fairly mild negative comments — about this pet-sitting organization. They defeated the case and they were able to get their lawyers paid because they were able to use the anti-SLAPP law.

Another example is when people speak out about political figures. Political figures often have good access to lawyers, and they can bring these cases without much of a sweat because lawyers may owe them a lot and want to bring the cases, but when constituents speak out about public figures, they need assurance that they'll be able to defend themselves when they're sued.

I want to talk about some of the changes that are being proposed to the TCPA right now. The law currently provides for a pause on trial court proceedings when a motion to dismiss a lawsuit under the TCPA is denied and goes up on appeal. But there's a new bill that would remove that automatic stay of proceedings during certain appeals. What do you think the impact of that change would be?

That change would make the TCPA much less effective in achieving its purposes.

Much of the burden of weak or frivolous litigation over speech on a matter of public concern is the mere expense and time that a defendant has to spend dealing with a case. If the real facts in the case are such that the case would not likely succeed anyway, what the stay does is save the defendant from that expense, at least in the circumstances where they've got a valid argument that the case ought to be dismissed under the anti-SLAPP law.

There are disincentives for filing frivolous motions to dismiss under anti-SLAPP laws, in that there can be an award of attorney fees for filing one. TCPA has such a rule and most anti-SLAPP laws do.

Another new bill would change the TCPA to make the award of attorneys fees to a SLAPP victim who wins discretionary. There have been two common criticisms of that proposal: One is that the mandatory fees discourage SLAPPs from being filed in the first place and discretionary fees wouldn't. The second is that the mandatory fees makes it easier for SLAPP victims to find a lawyer to defend them. Do you agree with either criticism?

Yeah, I think both. A lawyer in private practice has to figure out, “How am I going to make money from defending this case?” Much litigation on behalf of middle class people and working people is financed because the lawyer knows that if in the lawyer's evaluation of the case, it can produce a pot of money as damages, the lawyer can get a contingent fee out of the damages.

But for defendants, that possibility is not available. What you're trying to do as a defendant is avoid an award of damages and not obtain an award of damages. And so what the mandatory attorney fee provision does is create an incentive for lawyers to take cases for people who otherwise couldn't afford to defend themselves.

Deterrence doesn't work if the plaintiff is Elon Musk, doesn’t work if the plaintiff is George Soros. It's a nonpartisan thing. People for whom money is really no object aren't deterred by anti-SLAPP laws.

But most anti-SLAPP plaintiffs are small or middle-size businesses or folks who are wealthy enough to afford a lawyer charging by the hour or able to get lawyers because their influence makes them attractive clients, but for whom an award of $20,000 or $30,000 in attorney fees against them would be a major hit. So if there's an anti-SLAPP law that's effective and has a mandatory award of attorney fees, they have to take that into consideration in deciding whether to bring the case.

And I have no doubt, for example, that in the case involving Michelle Lanum, the threat that we sent to the plaintiff's lawyer that we would file an anti-SLAPP motion if he didn't quickly dismiss the case had a significant impact on his decision to dismiss the case and therefore save Lanum from having to defend herself in litigation over her criticism of a device that, to me, looked to be a prime example of medical quackery.

I've seen that work time and time again. It basically forces the plaintiff's lawyer into the position of having to explain to his client what the costs of a loss would be. That it's not only that you'll be out whatever fees you paid me but you might have to pay fees to the other side in addition.

What does it mean for freedom of speech if the Texas legislature makes it easier for regular people to be sued for exercising their freedom of speech, for example by posting a negative review of a business or speaking out against wrongdoing or falsehoods?

I believe in the marketplace of ideas. I think generally speaking, lots of nonsense gets spouted these days and it's often hard to sort the nonsense from the stuff that's worth seeing. But it's my view that more speech is better and that the best way to counter speech that you don't like is to speak out against it and explain your point of view instead of suing to stop it.

The public generally benefits from getting more facts on which they can make judgments about what businesses they ought to patronize, what goods they ought to purchase, what political figures they ought to support or what parties they ought to support, what sports they ought to play, and other topics of public concern.

The public benefits from getting more information and litigation that suppresses speech in an unwarranted fashion therefore hurts the public and it also hurts business. When one business sues to prevent valid criticism of its business activities, of its services, it actually gets an unfair benefit in its competition with other businesses that are operating on the up and up and selling useful goods and providing good services.

So in all these ways, litigation against speech is harmful to the public.