FIRE Testimony in Support of the Texas Citizens Participation Act, October 2, 2024

October 2, 2024

Texas House of Representatives
Committee on Judiciary & Civil Jurisprudence EXT E2.120
Austin, TX 78768

Re: October 2, 2024, Hearing on the Texas Citizens Participation Act

Dear Chairman Leach and Members of the Committee,

My name is JT Morris. I live in New Braunfels, Texas, and I’m a senior attorney at the Foundation for Individual Rights and Expression (FIRE). FIRE is a non-partisan, non-profit dedicated to defending the free speech rights of all Americans. We’re also a member of the Protect Free Speech Coalition, a broad coalition of nonprofits, news outlets, and other organizations that are united by our support for the Texas Citizens Participation Act (TCPA). The TCPA protects Texans’ access to justice by deterring frivolous lawsuits, known as SLAPPs, that aim to silence our citizens. On behalf of FIRE and the Protect Free Speech Coalition, I write to stress the importance of the TCPA for protecting the free speech rights of Texans and to urge against any effort to weaken it.

Let me be clear: The TCPA’s benefits to public participation are real, not hypothetical. In my experience defending the free expression of Texans, I have seen the TCPA empower many people to defend their protected expression against SLAPPs and threatened SLAPPs — including anonymous school board critics, whistleblowers at assisted living facilities, concerned consumers, community watchdogs, critics of domestic abuse, participants in historical debates, and investigative journalists. Without the TCPA’s protections, most of these speakers would have self-censored, as they lacked the resources to hire an attorney for prolonged litigation. Crucial to this was the TCPA’s stay on an interlocutory appeal, which enabled several of these speakers to get an appellate reversal, without going broke during the proceedings, after a trial court erred in denying their TCPA motion to dismiss.

Our nation’s Founders knew well the danger of government control over who is allowed to speak and who is not. That’s why they crafted the First Amendment to shield speakers from government retribution. Yet while the First Amendment continues to guard against direct government censorship, the rich and powerful can still weaponize the government to silence their critics.

They do this by filing strategic lawsuits against public participation — SLAPPs, for short.^[1] Even though these lawsuits are legally meritless, they force someone exercising their expressive freedoms on public issues into a near-impossible choice. The defendant can spend thousands of dollars hiring an attorney to fight the baseless lawsuit, or they can shut up and settle the case. For most Texans, hiring an attorney risks financial ruin, making self- censorship the rational choice, even though their expression is constitutionally protected. By deterring vital expression about the government, the rich and powerful, and other important public issues, SLAPPs don’t just threaten the rights of the defendant. SLAPPs also intrude on the public’s right to hear the defendant’s point of view. They challenge our commitment to freedom of expression and an informed citizenry. And they erode the sacred American values that everyone has the right to speak their mind and petition their government, and we resolve our differences by a civil exchange of ideas, not by coercion or force.

In recognition of this problem, many states have passed laws to protect the right to free speech by taking the teeth out of SLAPPs. Texas did so in 2011 when it enacted the TCPA. The TCPA allows Texans named in lawsuits to secure quick dismissals from state courts if the claim against them is based on their exercise of First Amendment rights, while still allowing plaintiffs who can demonstrate they have meritorious claims to proceed. The Act lets a speaker facing a bogus suit to file an early motion to dismiss and essentially ask the judge to check: Are the claims legitimate, or is the plaintiff just trying to shut their critic up? If it’s the latter, the court can grant a speedy dismissal instead of putting the defendant through months or years of costly court procedure.

If the judge rejects a defendant’s anti-SLAPP motion, the TCPA allows for an immediate appeal, and the proceedings at the trial court are paused while the appeal is heard. These features are key to ensuring that victims of SLAPPs can avoid ruinous legal fees by fighting on two fronts – the appeals and trial courts – when a trial court erroneously rejects their motion to dismiss.

Another key feature of TCPA is fee-shifting: people who bring SLAPPs have to pay the defendant’s legal fees if a case is dismissed under TCPA.

In sum, the TCPA changes the calculus for defendants sued for constitutionally protected expression: instead of settling, they can afford to defend their rights. And the TCPA deters plaintiffs from filing SLAPPs in the first place because they can’t force the defendant through years of costly litigation, and if they try, they risk being forced to pay the defendant’s legal bills.

Meanwhile, the public also benefits from the TCPA protecting our American right to speak out and from a court system that isn’t wasting the public’s time and the taxpayers’ money adjudicating frivolous cases. At the same time, the meritorious cases are able to proceed through the judicial system. The TCPA strikes a careful balance that deters SLAPPs while protecting access to justice through the courts. We strongly urge you to resist any effort to upset this balance by weakening the TCPA’s current protections.

If you have any questions about this testimony or how the TCPA works in practice, please feel free to reach out to me at 215-717-3473, Ext. 233, or jt.morris@thefire.org.

Respectfully submitted,

JT Morris
Supervising Senior Attorney
Foundation for Individual Rights and Expression

Footnotes

[1] These lawsuits often come in the form of defamation or other speech-related torts like invasion of personal privacy or tortious interference with business relationships, but all SLAPPs have the defining characteristic of being meritless.