AUSTIN – The Texas Supreme Court recently expanded the state’s form of the anti-strategic lawsuit against public participant (SLAPP) law ruling that a defendant can pursue a motion for dismissal even if they deny the claims of the First Amendment activity in the lawsuit.

The high court's decision in Hersh v. Tatum in March gave defendants greater protection under the Texas Citizens Participation Act, the state's version of anti-SLAPP laws. 

States implement anti-SLAPP statutes to help prevent “strategic lawsuits against public participation,” or “SLAPPs,” which are lawsuits used to retaliate or silence those operating under their First Amendment rights.

Under an anti-SLAPP statute, a defendant can file for motion to dismiss a lawsuit if they can show that the allegations are related or in response to the exercise of free speech.

“I think what we're seeing is that there will be more opportunities for defendants who otherwise would not have had those opportunities to move to dismiss under the statute,” Laura Offenbacher Aradi, attorney for Crowell & Moring told The Record.  

In Hersh v. Tatum, parents John and Mary Ann Tatum sued Julie Hersh, who is known for her work in suicide prevention, for intentional infliction of emotional distress over claims she collaborated with a local newspaper who they say defamed their late son after he committed suicide. The Tatums' son’s obituary did not state suicide as the cause of death, and a few weeks later the newspaper featured a column calling for more honesty in obituaries of those who committed suicide, the court opinion states. Even though the column did not include the son’s name, it gave details the circumstances that could be linked to the Tatum family, according to the court opinion.

The court opinion states that Hersh first denied Tatums’ claims that she communicated with the newspaper to encourage them to write about naming suicide as the cause of death in obituaries. She then argued that even if she did collaborate with the newspaper, the lawsuit would be meritless and should be dismissed because it would have been in response to her exercise of her right to free speech.  

Previously in Texas law, a defendant could not proceed with a motion to dismiss under the anti-SLAPP statute while also denying the allegations of the First Amendment activity that the anti-SLAPP protects.

“Hersh changed that by saying actually a lawsuit can be based on someone's First Amendment rights as long as the allegations against the defendant are based on some exercise of speech, petition or association,” Aradi said.

The new ruling by the high court expands the defendant’s options under the new interpretation of the state’s anti-SLAPP.

“It means the defendant is then still allowed to file the motion to dismiss,” Aradi said. “The significance of that is that a defendant does not have to choose either denying that he engaged in the activities that he's being sued for or seeking dismissal under this statute.”

Aradi noted that anti-SLAPP laws vary widely from state-to-state.

“They can be very narrow and apply only to petitioning or permits or environmental issues or they can be broad like Texas ... where the statute covers all kinds of free-speech or first amendment activity,” Aradi said.

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