House committee advances tweak to free speech protection law, prompting fear from First Amendment advocates

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A state House committee on Wednesday voted to move forward with a proposed change to the way Texas protects news organizations and individual people from certain frivolous lawsuits, drawing fears from advocates that a critical free speech protection could soon be weakened.

Senate Bill 896 would revise the 2011 Texas Citizens Participation Act, known as the anti-SLAPP law, which is designed to protect people and companies from lawsuits aimed at intimidating or punishing them for exercising their First Amendment rights. The idea behind the 2011 law was that even a baseless lawsuit targeting speech a plaintiff doesn’t like — known as a strategic lawsuit against public participation, or a SLAPP — could inflict major damage because it can take years and thousands of dollars or more in legal expenses to get them thrown out.

Currently, the target of a SLAPP lawsuit can file a motion to dismiss the suit and if the trial court judge denies the motion, the defendant may file an immediate appeal — and the case is stayed while an appeals court takes it under consideration.

The version of SB 896 advanced Wednesday in the House Judiciary and Civil Jurisprudence Committee would remove that automatic stay from state law if a judge finds that the motion to dismiss is frivolous or was filed with the sole purpose of delaying a case. In those circumstances, a stay would expire after 45 days. A version of the measure sailed through the Senate in March before the House committee approved a newer version in a 6-3 vote on Wednesday.

Some powerful business groups in Texas have pushed for the bill, arguing that the anti-SLAPP law can be improperly applied to lawsuits that have nothing to do with free speech. Shahmeer Halepota, a Houston civil lawyer, told the House committee last month about a case in which he represented a developer who was locked in a lawsuit with a contractor during an apartment construction project. The contractor filed an anti-SLAPP motion and successfully froze the case a month before trial. An appeals court later found the motion frivolous, he said, but the delays cost his developer client millions of dollars.

“This is a perfect example where a shield has become an abusive sword,” the bill’s sponsor, Rep. Jeff Leach, R-Plano, said during the hearing.

But free speech advocates, media companies and advocacy groups across the political spectrum have warned of dire potential consequences if the bill is passed as currently written. Judges frequently make mistakes, they said, and many SLAPP cases are thrown out by appeals courts. Without the automatic stay, those cases can become extremely expensive before they’re dismissed.

At last month’s hearing, an attorney for the Center for Investigative Reporting described fighting a federal defamation case for more than five years. The case was ultimately dismissed, but only after the investigative news outlet racked up more than $5 million in legal fees and was put at risk of bankruptcy. A representative from the Better Business Bureau, meanwhile, described being sued by a business that was upset about a review on its website. An appeals court eventually dismissed the case, but only after a four-year legal fight.

“This is a huge, huge issue for us,” said Carrie Hurt, president and CEO of the Better Business Bureau Serving the Heart of Texas. “We are offering factual reports for the good of the citizens of Texas.”

If a stay were to expire after 45 days as the current bill proposes, people or companies sued would likely have to defend themselves in two different venues — in an appeals court where they seek to dismiss the case and at the trial-court level where they would have to proceed with document review and possibly a trial.

Opponents say this would cost defendants time and money, essentially helping plaintiffs achieve their goal even if they eventually lose. And it would overburden courts, increase litigation insurance for media companies and possibly have a chilling effect on speech, they say.

Numerous state and national news organizations, including The Texas Tribune, the New York Times, Fox Television Stations and the state’s major newspapers, have spoken out against SB 896. So have advocacy groups from across the political spectrum, ranging from the American Civil Liberties Union of Texas to the Tea Party group True Texas Project.

The House committee did not discuss the measure Wednesday before its vote, but Leach said during last month’s hearing that he “will not support any bill that weakens the First Amendment protections of free speech.” But Leach, who also chairs the committee, also acknowledged “some very real problems and concerns” with the law as it is written.

The bill is now likely headed for the House floor. If it’s approved there, it would need to be reconciled with the Senate version before heading to the governor’s desk.

Disclosure: New York Times has been a financial supporter 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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