Is it in the public interest for individuals, organizations and businesses to participate in our governmental process? To speak out about and investigate matters of public concern? To provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process? Retaliatory lawsuits filed against one who exercises his or her free speech rights not only threaten the defendant with financial liability, litigation costs, destruction of a business, loss of a home, and other personal losses, but also seriously impact our government, interstate commerce, and individual rights by significantly chilling public participation in public debate, governmental issues and voluntary calls to action.
These lawsuits, called strategic lawsuits against public participation (SLAPP), are becoming more and more common with the increased access to comments, reviews, calls to action and other statements made online by individuals exercising their right to free speech. As a result, many states, including most recently Texas, have sought out the opportunity to pass laws that would prevent SLAPP lawsuits from going forward.
The irony of encroaching on a democratic exchange of ideas at a time when the ease to publish is at an all-time high, is what motivated us to try to get an anti-SLAPP statute passed in one of the most conservative states in the nation – Texas. California has long been the model for anti-SLAPP statutes – having a broad law that has been on the books since 1993. Many jurisdictions, including Illinois, Indiana, Louisiana, Washington and the District of Columbia, have followed California's lead and have recently adopted anti-SLAPP laws cover statements made outside the governmental setting. Still, there are many states that have narrow anti-SLAPP laws and many more that have no protection at all against SLAPP suits. In addition, there is currently no protection at the federal level against being retaliated against for exercising one's free speech rights. We believe, though, that every state in the Union can and should have an anti-SLAPP law. As demonstrated below, Texas can serve as a role model for other jurisdictions.
After more than two years of working to bring together a vast coalition of supporters for the legislation, on June 17, 2011, the Texas Citizen Participation Act (also known as the Texas Anti-SLAPP statute) was signed into law by Gov. Rick Perry and went into effect immediately. The law is being heralded as one of the strongest anti-SLAPP statutes in the nation and parts of it are being considered for replication in the federal bill and other state proposals. The key provisions in the law codified at Texas Civil Practice & Remedies Code, Chapter 27 are:
- The statute allows a judge to dismiss frivolous lawsuits filed against one who speaks out about a "matter of public concern" within the first 60 days. "Matter of public concern" is defined expansively in the statute.
- The anti-SLAPP motion is supported by affidavits explaining to the court that the lawsuit is based on, relates to, or is in response to one's exercise of his or her right to free speech, right to petition or right of association.
- The burden of proof is initially on the party who files the anti-SLAPP motion to establish (by a preponderance of the evidence) that the lawsuit was filed in response to the exercise of his or her First Amendment rights. Then the burden shifts to the plaintiff to establish (by clear and specific evidence) a prima facie case for each essential element of the claim.
- The statute creates a stay of discovery in a lawsuit while an anti-SLAPP motion is pending and/or appealed. The court has discretion to order discovery pertaining to the motion if it feels it is necessary.
- That statute provides for mandatory fee shifting when a party wins an anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs. There is a discretionary fee award if the court finds that the anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings.
- The statute provides an immediate right to an expedited appeal if the anti-SLAPP motion is denied.
- The statute applies to lawsuits or "legal actions" (which includes claims and counterclaims that implicate First Amendment rights) filed on or after June 17, 2011.
- The exemptions contained in the statute are for enforcement actions brought by the state or law enforcement, for commercial speech and for wrongful death and bodily injury lawsuits.
This law has already been used to dismiss frivolous lawsuits in Texas and to award fees to the party who was the subject of the SLAPP suit. The goal is to chill meritless lawsuits, not discussion on matters of public concern.
On the federal front, the Public Participation Project is tirelessly working to get a federal anti-SLAPP law on the books so that an individual's rights are protected the same whether they are sued in federal or state court. Sen. Jon Kyl (R-Ariz.) has been leading the effort to draft a bipartisan bill in the Senate. In the House, the bill will be heard by the House Judiciary Committee, chaired by Rep. Lamar Smith (R-Texas). The current draft of the federal bill includes many of the attractive provisions of the state statutes, including a stay of discovery while the anti-SLAPP motion is pending, the right to an immediate interlocutory appeal, and the mandatory shifting of attorney's fees and costs when one prevails on an anti-SLAPP motion. Interestingly, it prohibits amendment of the claim subject to the anti-SLAPP motion after a motion has been filed–likely in an effort to prevent one from trying to plead around the motion. Finally, and perhaps most significantly, it also provides for the right to remove any state SLAPP suit to federal court so that individuals who are not fortunate enough to have a state anti-SLAPP statute can still get the same protection of their First Amendment rights wherever they are sued.
The coalition of supporters for anti-SLAPP legislation at both the state and the federal level have included open government groups, media organizations, trade associations, citizens rights groups (such as ACLU, Public Citizen), consumer organizations (such as Consumers Union), watchdog and government accountability organizations (such as Texas Watch), public interest law firms (such as the Institute for Public Justice), business watchdog organizations (such as the Better Business Bureaus) and electronic communication providers (such as Yelp!) that have been on the defensive end of many SLAPP suits simply for posting people's opinions or their evaluations of businesses. This strong bipartisan coalition has piqued the interest of lawmakers from both sides of the aisle and their members have provided countless examples of SLAPP victims among the constituents of those voting on anti-SLAPP legislation.
We are hopeful that what we were able to accomplish in Texas will help other states in expanding their laws and will assist in getting a federal anti-SLAPP statute passed so that a party cannot forum-shop in an effort to trample one's First Amendment rights. Anti-SLAPP legislation has a broad-based appeal because it protects the little guy, promotes judicial economy, provides for tort reform and advances the First Amendment rights of all citizens.