The Texas Citizens Participation Act (CPA) has been described as one of the broadest protections in the nation preventing civil litigation from having a “chilling effect” on free speech. Now, First Amendment organizations are warning that pending legislation in the Texas Legislature will strip key protections in the CPA, resulting in serious unintended consequences to free speech and other First Amendment rights.
The CPA is Texas’ version of anti-Strategic Lawsuits Against Public Participation (SLAPP) laws that prevent litigation, such as a defamation lawsuit, from being used to silence someone from exercising their First Amendment-protected rights, including speech, assembly, the press, association, and petition.
According to the Reporters Committee for Freedom of the Press, defendants may file a motion under the CPA to dismiss a lawsuit against them if the lawsuit pertains to their engaging in constitutionally protected activity; while the court reviews the motion, the trial court proceedings are stopped.
This prevents costly legal processes from occurring until the motion to dismiss is ruled upon, even at the appellate level, preventing the defendant from having to fight litigation on two fronts simultaneously.
Senate Bill (SB) 896 by Sen. Bryan Hughes (R-Mineola) and its companion House Bill (HB) 2781 by Rep. Jeff Leach (R-Plano) would amend the CPA, which the lawmakers say is “now being abused to stop legitimate legal claims and to delay proceedings” in other court cases.
According to a statement of intent on SB 896, the legislation would allow a trial court proceeding to continue if a judge rules against a motion to dismiss the case under the CPA and determines the motion was not timely filed, was frivolous, or that the case doesn’t pertain to one of the protected activities — even if the motion to dismiss is under appeal.
Supporters of the bill say abuse of motions to dismiss under the CPA is being used in cases that do not pertain to protected activities, depriving those litigants of other constitutional rights, including a speedy trial process.
Opponents say, however, the bill as worded does not achieve those reforms without severely damaging the First Amendment protections the CPA is intended to provide.
“The unintended consequences of SB 896 are vast and grave in at least four different ways,” nationally recognized First Amendment attorney Laura Prather said.
Prather alleges the first problem with the bill gives judges the power to discriminate against or penalize a “voice they disagree with” by issuing a dismissal that would allow the trial to proceed while the motion is appealed. Secondly, she says the bill would result in clogging the judicial system by forcing trial courts to deal with proceedings that an appellate court could ultimately dismiss.
Prather’s third point strikes at the heart of the CPA, which is to prevent costly litigation used to chill First Amendment rights, forcing defendants to fight in up to three legal fronts at a time. She stated that the bill “is exactly contrary to the purpose of the Texas Citizens Participation Act.”
Lastly, she said increased litigation costs will result in an increase in media liability insurance premiums, which could result in insurance companies pulling out of that market in the state entirely.
Other organizations have expressed opposition to the bill as well, including the Texas Press Association, the Texas Association of Broadcasters, and the Texas Freedom of Information Foundation.
The News Media Alliance (NMA), which represents some 2,000 media organizations nationwide, published a letter to Leach last month expressing their concern about his bill, writing that it would “weaken the vital free speech protections” encompassed in the CPA.
“The news and magazine media industries in Texas rely on the protections of the CPA to ensure that they can provide communities in Texas with valuable, timely, and quality journalism,” the NMA wrote.
On the other hand, Texans for Lawsuit Reform (TLR) has taken a more supportive stance on the legislation, saying this issue is one where competing constitutional rights are at play.
TLR spokesperson Lucy Nashed said that “in some cases, the plaintiff’s lawsuit has nothing to do with the First Amendment, but the current statute allows the defendant in that case to interfere with the plaintiff’s Seventh Amendment and Texas Constitutional right to a trial by jury and access to a court. In other words, there are competing constitutional rights at play.”
“As written, a defendant can file a motion to dismiss under the SLAPP statute on the eve of trial, or file a motion to dismiss a case that is plainly outside the scope of that law, and then appeal the trial court’s correct decision overruling that motion,” Nashed said, adding the appeal can delay the case unfairly for months or years and “interferes with the other person’s right to have a dispute decided by an impartial jury in a reasonable amount of time.”
SB 896 passed the Texas Senate with unanimous support in March and is now set for a public hearing Wednesday in the House Judiciary and Civil Jurisprudence Committee.
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