GUEST COMMENTARY
Fourteen years ago, the legislature passed vital protections for freedom of speech in the Texas Citizens Participation Act. This week, they’re looking to gut it.
The TCPA addresses the common problem of “strategic lawsuits against public participation,” or SLAPPs, frivolous lawsuits brought by the wealthy or powerful against private citizens to stop them from exercising their free speech rights.
For example, say your loved one is in an assisted living facility, and you think the facility is neglecting their care. You file a complaint with state regulators and then post honest, negative reviews of the facility online so that other people can make an informed choice about sending their family members there.
Then the facility sues you, claiming that you defamed them.
Even though the case is frivolous and your criticism is protected by the First Amendment, you have a tough choice: stop talking about the facility or hire an attorney to defend you.
You don’t want to be silenced, but you don’t want to go through a lengthy, expensive and exhausting legal battle.
This was the choice facing Carol Hemphill when she was sued for criticizing the facility housing her brother, who needed daily care after a traumatic brain injury.
Thankfully, the TCPA helps people like Carol. It allows SLAPP victims to get cases dismissed quickly, without racking up huge legal bills. It also helps the victims get lawyers to stand up to the bullies trying to silence them.
First, the TCPA lets a victim immediately move to dismiss the case if they can show the claim is meritless and targets their speech freedoms.
Then, if the court denies the motion to dismiss, there’s another layer of protection. The law automatically pauses any further court proceedings while the victim appeals the ruling, so that the case doesn’t turn into a sprawling legal battle before the court of appeals gets the chance to toss it out.
When a victim successfully gets the case dismissed, the TCPA also requires the other side to pay their legal bills. This helps to deter people from filing SLAPPs in the first place.
These protections ensure that everyone, not just those with money, can afford to fight for their rights. They helped Carol get her case dismissed and her legal bills paid. They helped Ken Martin, an independent local journalist, who was sued by a politician for reporting factual information about him. And they helped Dante Flores-Demarchi, who was sued by a wealthy school board member for publicly raising concerns about corruption.
In addition to protecting individual victims, the TCPA protects a culture of open political discourse. In 2023, John Seago, the president of Texas Right to Life, testified against amending the TCPA because of its importance to individuals and organizations that work on important political issues. He testified that he, his organization, and other Texans had been hit with 19 different lawsuits simply for speaking about abortion after passage of the Texas Heartbeat Act, which banned most abortions in the state. “We turned to the TCPA since we were being targeted simply for our activism,” he said last year.
Despite this enormous success, the legislature is currently considering bills to tear chunks out of the TCPA.
This week, a House committee is going to vote on HB 2988, from Rep. Mano DeAyala (R-Houston), which would end the requirement for people who file SLAPPs to pay the other side’s legal bills when the case is dismissed. This would make it harder for SLAPP victims to get lawyers to defend their free speech rights, and invite more suits aimed at silencing people — a fundamental encroachment of constitutional rights.
In the coming weeks, we expect other committees to take up SB 336/ HB 2459. The bills authored by Sen. Bryan Hughes, R-Mineola, and Rep. Jeff Leach, R-Plano) would remove the TCPA’s automatic pause while a victim appeals their motion to dismiss the SLAPP.
The only people who benefit from weakening these parts of the TCPA are those with deep pockets who want to abuse the courts to silence their opponents. For Texans like Carol, who just want to speak their mind without being hauled into court, they’re a slap in the face.
Carolyn Iodice is legislative and policy director at the Foundation for Individual Rights and Expression, a national free speech group.
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