Journalists fear Texas Legislature could weaken law designed to protect free speech

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Journalists and free speech advocates are raising alarms about a bill moving through the Texas Legislature that they worry would make news organizations and regular Texans more susceptible to frivolous lawsuits designed to squash free speech.

At issue is a proposed adjustment to the 2011 Texas Citizens Participation Act, also known as the anti-SLAPP law, which is designed to prevent litigants from weaponizing the legal system to punish people for or dissuade them from exercising their First Amendment rights. The idea is that without such a law, big companies or wealthy individuals could inflict major damage by suing people over speech they don’t like. Those suits are known as SLAPP — strategic lawsuits against public participation — cases. Even if the suits are frivolous, their existence could cost the defendants thousands of dollars or more in court fees and legal bills. Or the threat of those suits could force people to censor themselves.

Under the 2011 law restricting SLAPP suits, a person or company that is sued in what they believe is a SLAPP case can file a motion to dismiss the suit. If the trial court judge denies the motion, the defendant may file an immediate appeal — and the case is stayed while the appeals courts take it under consideration.

But Senate Bill 896 would remove that automatic stay from state law, which opponents fear could allow some cases to proceed with expensive, time-consuming demands for evidence. The measure has already passed the Senate and was debated by the House Judiciary and Civil Jurisprudence Committee on Wednesday.

The bill is supported by business groups such as the Texas Association of Business and Texans for Lawsuit Reform. They argue that defendants have misused the automatic stay during appeal to delay legitimate cases, sometimes in proceedings that have nothing to do with the First Amendment.

One civil litigator, Shahmeer Halepota, described a case between a developer and a contractor involving the construction of apartment towers in Houston in which the defendants filed an anti-SLAPP motion three years into the case and a month before it went to trial. That automatically put the case on hold, causing his developer client to miss out on business opportunities, he said. An appeals court later found the anti-SLAPP motion frivolous, he said.

“My clients have literally lost millions of dollars,” Halepota said Wednesday.

SB 896 would lift the automatic stay on the case if the anti-SLAPP motion were found by the trial court judge to be frivolous or solely filed as a delay tactic. If the anti-SLAPP motion were denied and found not to have been filed in a timely manner, an automatic stay would still go into effect, but would expire in 45 days if an appeals court didn’t step in. The idea, proponents say, would be to prevent what is meant to be a legal shield from being turned into a sword used aggressively to needlessly delay legitimate cases.

Opponents of the bill say it would burden an already overwhelmed court system.

“The bill would create a two-tier system in which parties, in certain instances, would be forced to litigate their cases simultaneously at the trial and appellate courts, which will cause significant perils for both litigants and courts,” Wallace B. Jefferson, who served as chief justice of the Texas Supreme Court from 2004-13, said in prepared testimony.

Media groups have lined up against the proposal, with leaders of the Texas Press Association and the Texas Association of Broadcasters, as well as First Amendment attorneys, speaking out against it at Wednesday’s committee meeting. Advocacy groups across the political spectrum — from the American Civil Liberties Union of Texas to the Tea Party group True Texas Project — and numerous news outlets — including The Associated Press, Axios, Fox Television Stations, The Dallas Morning News, The Houston Chronicle, The New York Times, The Washington Post and The Texas Tribune — have also registered their opposition.

The groups note that trial court judges often make mistakes and that libel cases are frequently overruled on appeal. They say that not having an automatic stay in cases could force media companies to litigate the same case simultaneously in two venues, trying to have a case tossed out on appeal while also going through arduous and expensive discovery at the trial court level.

Ultimately, they say, SLAPP cases are designed to be punitively expensive, even if the person who filed it knows they will lose. The proposed new law would increase the cost for news outlets to defend themselves from SLAPP cases in courts and would raise media liability insurance premiums, opponents say.

“A free press and accurate news reporting depend upon journalists to identify, investigate, and report out stories without concern that the subjects in the story could sap their newsroom of resources through a meritless court case,” the Reporters Committee for Freedom of the Press wrote in a letter to state Rep. Jeff Leach, R-Plano, chair of the judiciary committee and sponsor of the bill. The letter was also signed by 44 news outlets, including the Tribune.

In a letter, editors of the four Hearst Newspapers newspapers in Texas noted a 2016 case in which one of the papers, the Houston Chronicle, was sued by a local bar over a brief article describing a shooting that occurred nearby. The newspaper filed a motion to dismiss; a judge deemed the motion untimely. It took seven months for that ruling to be corrected and another five years before the Chronicle “was able to get a court to consider the merits of its motion to dismiss and find that the claims were baseless.”

Weakening the anti-SLAPP law, the letter said, would put defendants in an “intolerable situation” of having to simultaneously pursue costly litigation at both the trial and appellate levels, or of pursuing settlements that might not go anywhere if the court finds the defendant was lawfully exercising its constitutional right. The letter was signed by Maria Reeve, the Chronicle’s executive editor, and by top editors in San Antonio, Laredo and Beaumont.

Media advocates also warned about the impact on small news outlets that don’t have the resources to defend themselves. Donnis Baggett, executive vice president of the Texas Press Association, told the committee on Wednesday that many of the hundreds of newspapers his organization represents are small-town, family-run newspapers that “just can’t survive a long, drawn-out lawsuit.”

Those papers provide vital information about a community, from high school sports to civic coverage to accountability work about the actions of their local governments, and many would see their survival at risk from SLAPP suits, he said.

“If you bleed a small newspaper dry, that community is without a newspaper,” he said.

Leach said Wednesday that he “will not support any bill that weakens the First Amendment protections of free speech.” But he also acknowledged “some very real problems and concerns” with the law as it is written and expressed a desire to address them while preserving the anti-SLAPP rules.

After hearing emotional — and at times tense — testimony on the measure, he encouraged advocates on both sides to go to lunch and come up with a solution that worked for all of them. But the bill did not receive a vote Wednesday morning.

Disclosure: Texans for Lawsuit Reform, Texas Association of Business and New York Times have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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