A Look at Texas's New Anti-SLAPP Law

Back in mid-June, Texas's new anti-SLAPP law finally took effect. (Since the bill passed both houses of the Texas legislature unanimously, it took effect immediately when Gov. Rick Perry signed it.) The CMLP's legal guide is updated to reflect the new statute. It's a good bill, and the whole "unanimous passage" part is a good sign for the larger anti-SLAPP project, so it's worth taking a moment to see how the Texas statute stacks up.

The new law (the "Citizens Participation Act") casts a wide net: it covers any exercise (in any medium) of free speech, petition, or association rights. That sounds nice in the abstract, but the trick is in the definitions.

The "right of association" doesn't get any clarification beyond reference to "individuals who join together to collectively express, promote, pursue, or defend common interests," but that could provide some interesting arguments for defendants getting sued for posts on message boards and the like. It doesn't limit protections to "matters of public concern," like other sections: here, all we have are "common interests," which could be a very broad provision indeed. And the text of the "right of association" section could even cover straight-up person-to-person communication – private emails, etc. The bill only requires those "individuals" to "communicat[e]" about "common interests." If courts are willing, they could take that provision a very long way indeed.

The "right to petition" section is about what you'd expect, albiet perhaps more detailed than strictly necessary. The "free speech" protection is limited to "matters of public concern," like other anti-SLAPP statutes we've seen; "public concern" gets a broad enough definition to cover issues of "health and safety" (I'm looking at you, vaccine debate), public figures (hello there, Mr. Snyder), or stuff in the "marketplace" (like, say, Yelp! reviews).

The statute also has a few bits that tip the scales slightly in favor of the little guy. Like I said, communications about goods and services in the marketplace are protected, but only from the customer end: businesses can't use the anti-SLAPP statute to kill lawsuits against them over their advertising. And if a defendant frivolously tries to use the statute, they "may" (not "must" or "shall") be on the hook for some of the plaintiff's legal fees, but there's no punitive damage award running from defendants to plaintiffs. (That's in contrast to, say, Washington's law, which levies identical damage awards against SLAPP-happy plaintiffs or against defendants who frivolously use the anti-SLAPP statute.)

Speaking of those damage awards (look, ma! transitions!), Texas's damage scheme is interesting when contrasted with a statute like Washington's. When Washington recently updated their anti-SLAPP statute, they based it heavily on California's, but added damages above and beyond just recovering court costs and attorneys' fees. Washington's new statute provides for an automatic $10,000 award, on top of the costs and fees. That's a nice bit of deterrence, and has the benefit of consistency; against the massive plaintiffs that can use SLAPP suits to great effect, though, ten grand is a drop in the bucket.

Texas takes a different approach: On top of the fees and costs, the court "shall" award the defendant damages "sufficient to deter the party who brought the legal action from bringing similar actions." It's not optional – the judge has to give some sort of punitive damage award; the discretion lies in the size of the damages. It'll be interesting to see how judges wield that provision; the flexibility could be useful in really bringing the hammer down on any big corporate plaintiffs while allowing some leniency for little-guy plaintiffs who sue Michael Moore (for example).

On the other hand, though, we have to trust judges to actually impose those big fines. And how would a judge figure out how big is big enough? Try to quantify the monetary value of shutting down a critic, then add $1? We'll have to wait and see how judges handle that foggy mandate.

All in all, though, the Texas anti-SLAPP bill looks like a real beast.

John Sharkey is a CMLP intern fresh off his first year at Harvard Law School. Since his last post, level-headed Twins fans have begun to dream of the Miguel Sano era. 

(Image courtey Flickr user jmtimages, under a Creative Commons license.)  


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