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A Primer on SLAPPs and the Texas Anti-SLAPP Law

Texas's anti-SLAPP law, The Texas Citizens Participation Act, is a critical tool for protecting the expressive rights of Texans. As part of our speech defense practice, we have helped several clients use it successfully to escape speech-chilling lawsuits and recover attorney's fees.

This guide gives a basic overview of SLAPP suits and the TCPA. It is for informative and educational purposes only and is not legal advice. If you have more questions, we welcome you to contact us.

What is a SLAPP?

"SLAPP" stands for "Strategic Lawsuit Against Public Participation." In essence, it is a lawsuit that lacks merit, aiming instead to retaliate against or harass a critic or another speaker. SLAPPs pose a real danger to free public debate, the flow of important information, and good self-government. Above all, they use the expense and stress of a lawsuit to try to force a speaker into self-censorship.

What are some examples of a SLAPP?

While SLAPPs can come in different forms, here a few common examples:

  1. An elected official sues a citizen because the citizen criticized or parodied the official.
  2. A business sues a customer for leaving an honest but negative review online.
  3. A public figure sues a news outlet over an unflattering but accurate story.
  4. A business sues a citizen for alerting the government to unethical or hazardous practices.
  5. A person sues another over a good-faith police report.

What is an anti-SLAPP law?

Anti-SLAPP laws turn the tables by putting the consequences of a SLAPP on the person who filed it. These anti-SLAPP laws vary from state-to-state. While some states have strong anti-SLAPP laws, others have very weak ones. And some states still have no anti-SLAPP law.

Strong anti-SLAPP laws share a few common features. For one thing, they cover any lawsuit based on a defendant's expressive activities over a matter of public concern. They also specify a procedure that lets the defendant file a motion to dismiss that lawsuit early in the litigation. This includes pausing discovery (and the expenses that come with it) while the motion is pending.

And if a defendant shows the plaintiff's lawsuit is a SLAPP, a strong anti-SLAPP law requires a court to award the defendant his attorney's fees and costs defending against the lawsuit. Finally, a good anti-SLAPP law lets the defendant immediately appeal if his motion to dismiss is denied.

Does Texas have a strong anti-SLAPP law?

Yes! Texas's anti-SLAPP law, the Texas Citizens Participation Act (or TCPA), has all the hallmarks of a strong anti-SLAPP law. It applies to lawsuits based on a defendant's exercise of the right to free speech or right to associate on matters of public concern, as well as the right to petition.

It also has a clear procedure for filing a prompt motion to dismiss and pauses discovery absent a showing of good cause. It requires a court to award a successful defendant his reasonable attorney's fees. And it even allows a court to award sanctions for particularly flagrant SLAPPs. It also includes the right to an immediate appeal if a motion to dismiss is denied.

Does the TCPA cover only defamation lawsuits?

No. While the TCPA often is used to dismiss defamation-based SLAPPs, it covers most any lawsuit based on a defendant's expressive rights (with a few narrow exceptions). For instance, the TCPA often applies to business disparagement and tortious interference with contract claims. And as another example, the TCPA will apply to an invasion of privacy claim in many circumstances.

How long do I have to file a TCPA motion to dismiss after I'm sued?

In most cases, you have 60 days from the time you were served with the lawsuit to file a motion to dismiss. Sometimes the parties might agree to the extend the deadline, or the court might extend the deadline for good reason.

What happens after I file a TCPA motion to dismiss?

The court will have a hearing on the motion. Generally, the hearing will be no more than 60 days after you filed the motion.

But sometimes it can extend up to 90-120 days if the court is busy or if it allows limited discovery on issues raised in your motion.

How do I win a TCPA motion to dismiss?

For starters, you must show in your motion to dismiss that the lawsuit or some claims in the lawsuit are based on your expressive rights.

If you do that, the person who sued you must put on enough evidence to show their lawsuit or claims are not baseless. In effect, they have to show their lawsuit has enough merit to proceed to the next stage, which usually is discovery. If he doesn't show that evidence, you win.

But even if he does, you can still win by providing enough evidence to establish a defense. For example, if you are sued for defamation, you can win a motion to dismiss by showing the evidence proves that what you said is substantially true.

If I'm sued for something I published or said, should I automatically file a TCPA motion to dismiss?

No, not always. The decision to file an anti-SLAPP motion should be a thoughtful one. Sometimes a lawsuit might look like a SLAPP, but the evidence might be enough to beat a motion to dismiss. And other times the TCPA might not apply because what you said was not over a matter of public concern or was not petitioning the government.

In these situations, another strategy might be a better use of your resources.

 

If you have more questions, please contact us. We always enjoy talking TCPA.