An important free speech statute that protects journalists in Texas is in danger



Alan Kotok

Back in 2005, a local newspaper in Texas was sued by a housing developer for its investigation, claiming that the paper’s reporting was a defamation attempt. And in 2008, a home health care business sued FOX 4 after it exposed alleged widespread fraud carried out by the company.

These suits are representative of the meritless legal action that news organizations in the state of Texas were vulnerable to until the passage of the Citizen Participation Act in 2011. Now, that statute is in serious danger.

The Texas legislature is considering narrowing the state’s law that allows courts to quickly dismiss baseless libel lawsuits that attempt to harass and intimidate those that report on or criticize powerful individuals and corporations — including journalists and news organizations.

The 2011 Citizens Participation Act (TCPA) offered protections against these silencing legal attacks, called ”strategic lawsuits against public participation”, or SLAPP. Texas’s anti-SLAPP law was backed from the beginning by a large coalition of media organizations, some of which had been previously sued.

Freedom of the Press Foundation has written previously about SLAPP lawsuits, and the dangerous implications they could pose to protest, free speech, and press freedom.

First Amendment attorney Laura Prather was involved with the passage of the 2011 statute, and she continues to fight against SLAPP in Texas.

“People were seeing that there was a rush of litigation against individuals and public interest groups when they spoke out, and there was interest at that time in preserving people’s free speech rights,” Prather said of the political climate in the Texas legislature at the time the statute was passed.

Now, she says, vocal opponents are pushing for the law to be narrowed in a way that strikes at the heart of the law, which would undermine the important protections it has codified. The legislative effort by lobbying group Texans for Lawsuit Reform to weaken TCPA — HB 2730/SB 2162 — is outwardly an attempt to cut down on the instances in which the law is used to dismiss “legitimate” libel lawsuits, but Prather notes that the vast majority of the time, the statute is used as intended.

“The citizens have overwhelmingly benefitted from this law,” she said. “You can’t even measure the amount of times it has deterred SLAPP lawsuits.” Any refinement of the statute, according to Prather, should be done with a scalpel rather than a sledgehammer.

“The bills would also remove clearly articulated categories of protected speech relating to matters of public concern from the Texas anti-SLAPP law,” wrote Rick Blum, Policy Director at Reporters Committee for Freedom of the Press. “The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern. This would eliminate clear protection under TCPA for meritless defamation lawsuits.”

A narrowed, less robust anti-SLAPP statute in Texas threatens such protections elsewhere, according to Prather. Many anti-SLAPP provisions across the country are based on Texas’s, which is particularly robust.

“Speech will be chilled, because [news organizations] won’t necessarily have the resources to fight against meritless lawsuits if they won’t be able to cover fees. They may self-censor out of caution because they can’t afford a lawyer, and even when they can, media organizations and journalists will be left in the court system for far longer.”

A group of Texas news organizations and transparency groups are joining together to oppose the bill and maintain the state’s strong free speech-protecting statute.

“The heart and soul of this statute must be preserved,” reads the coalition website. “The Texas Legislature shouldn’t allow this effective and equitable law to be eviscerated and the citizens of Texas to be deprived of its free speech protections.”

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