Texas Senate passes Citizen Participation Act to eliminate SLAPP suits

Marilyn Tennissen May 24, 2011, 5:00am


AUSTIN - The Texas Senate unanimously passed the Citizen Participation Act, anti-SLAPP legislation aimed at curbing lawsuits intended to silence critics.

SLAPPs, or strategic lawsuits against public participation, are lawsuits brought in retaliation for someone exercising his or her freedom of speech. The plaintiff's goal is not necessarily to win the lawsuit, but to intimidate and silence critics.

The Texas bill protects speech on any matter of public concern in any setting and allows a defendant sued in retaliation for public speech to file an expedited motion to dismiss the cause of action.

"The Texas Citizen Participation Act would allow defendants who are sued as a result exercising their right to free speech or their right to petition the government to file a motion to dismiss the suit, at which point the plaintiff would be required to show by clear and specific evidence that he or she had a genuine case for each essential element of the claim," according to a bill analysis developed by the state's Senate Research Center.

SLAPP suits are often filed by those who use the legal system to bully or harass citizens who petition the government, write an article, create a website or comment on the quality of a business.

Although protected under the First Amendment, the current process available for citizens to defend themselves is expensive and moves slowly.

SLAPP suits typically are tossed by motions for summary judgment which aren't considered until well into the discovery process, meaning victims of the suit have usually racked up big legal expenses by that time. The bill will create a motion to dismiss option to have the SLAPP suit tossed out more quickly.

The Senate Research Center's analysis says the statute "is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury."

The House version of HB 2973 was filed by Rep. Todd Hunter, R-Corpus Christi. Sen. Rodney Ellis, D-Houston, and Sen. Kevin Eltife, R-Tyler, filed the Senate version, SB 1565.

In addition to bipartisan support in the Legislature, the measure is backed by Texas Daily Newspaper Association, Texas Press Association, Freedom of Information Foundation of Texas, Texas Association of Broadcasters, Texas Watch, Consumer's Union, the Institute for Public Justice, Public Citizen and the American Civil Liberties Union.

On her blog SlappedInTexas.com, Alicia Wagner Calzada, cites the Beaumont case of In Re John Does 1 and 2, a SLAPP suit aimed at revealing the identities of anonymous bloggers "Operation Kleinwatch" and "Sam the Eagle Weblog" who blog about another blogger, Philip Klein.

Klein's company (but not Klein himself) obtained a discovery order which subpoenaed from Google the identities of the anonymous bloggers. The John Does moved to squash the subpoena and the court denied the motion, ordering the identities to be revealed.

Recently the Texas Supreme Court granted mandamus relief to the anonymous bloggers, ruling the the trial court had abused its discretion.

"If the Texas Citizen Participation Act had been in place, this case could probably have been handled through a motion to dismiss and might not have had to seek the extraordinary relief of a writ of mandamus ruling from the Texas Supreme Court," Calzada wrote.

The bill cleared its final legislative hurdle when the House concurred with a Senate amendment. Having passed both chambers of the legislature unanimously, the bill will be effective immediately upon being signed by the governor.

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