Texas senator tries new path in bid to revise Texas free-speech law

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With time running out on the legislative session, a senator has found a new way to push through a change to a Texas free-speech law, raising concern among First Amendment advocates.

Sen. Bryan Hughes, R-Mineola, has been working much of the 2023 legislative session to update state law that is designed to protect people and companies from lawsuits aimed at intimidating or punishing them for exercising their First Amendment rights.

His proposed change — which critics say would weaken the part of the law designed to keep people sued for defamation from getting bogged down in yearslong litigation before giving an appeals court the chance to throw out the case — is supported by leading business groups. They argue the law is misused by defendants in lawsuits that have nothing to do with free speech. But a coalition of media outlets, First Amendment lawyers and grassroots political groups from across the political spectrum say the changes would leave news outlets and private citizens vulnerable to frivolous lawsuits.

Hughes first pursued the change in Senate Bill 896, which sailed through the upper chamber in March. A coalition of opponents rallied when the bill reached the House, writing letters to lawmakers and speaking in opposition at a House committee hearing. The House Judiciary and Civil Jurisprudence Committee advanced a version of the bill on May 3, but progress has been slow since then. The last day for the House to give initial approval to Senate bills is Tuesday, and the legislation has not yet been placed on the House’s agenda for a full vote.

On Wednesday, Hughes tried another route.

During a brief meeting of the Senate Jurisprudence Committee, which Hughes chairs, he tacked on language similar to SB 896 to an unrelated bill that had already passed the lower chamber, House Bill 3129. That bill originally made minor, nonsubstantive changes to state law concerning civil lawsuits, cleaning up some language that had been changed in the previous session.

Free-speech groups warn that if Hughes’ proposal becomes law, it will create problems for news outlets and regular people alike.

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. Without such a law, big companies or wealthy individuals could inflict major damage by suing people over speech they don’t like, advocates say.

Those suits are known as SLAPP — strategic lawsuits against public participation — cases. They are usually frivolous, but require defendants to spend thousands of dollars or more in court fees and legal bills. Or the threat of those suits can cause 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, avoiding an expensive legal bill. If the trial court judge denies the motion, the defendant may file an immediate appeal — and the case is paused while the appeals courts take it under consideration.

But the change Hughes hopes to make, which he added to HB 3129 this week, would lift the automatic appeal after 60 days in a few circumstances: if a district court judge finds that the attempt to get the case thrown out was frivolous, if it wasn’t filed in a timely manner or if it meets a list of more than a dozen exemptions laid out elsewhere in state law.

Supporters of changing the law, including the powerful business-backed groups Texans for Lawsuit Reform and the Texas Association of Business, say an update is necessary because defendants in lawsuits having nothing to do with free speech have at times made anti-SLAPP claims, leading to costly delays.

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. 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.

They warn of dire consequences for the free press if the changes are made. News outlets have often been hit with suits from people who don’t like their stories, knowing full well that they might not win but that the case will be a financial and legal nuisance.

Trial court judges often make mistakes, and libel cases are frequently overruled on appeal. Opponents say that not having an automatic pause 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 people who filed them know 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.

The addition of new language to HB 3129 means the Senate has another opportunity to pass the proposed changes, which would then lead to negotiations between the House and Senate over whether to keep the language in the final version if it’s sent to the governor.

The change to the House bill was made in a meeting that lasted less than five minutes after the full Senate wrapped up its work Wednesday. Such last-minute meetings are fairly common in the final days of the legislative session, but its hasty nature drew frustration from opponents of the proposal.

Laura Prather, a partner at the law firm Haynes and Boone and board member of the Freedom of Information Foundation of Texas, called the move “procedurally inappropriate” and “a sleight of hand that didn’t provide for any ability to testify” about the bill’s impact.

The bill passed through the committee on a 4-1 vote with no discussion of the changes being made. The dissenting vote was Sen. Nathan Johnson, D-Dallas, who said, “This bill needs some work before it goes to the floor, and we’ll take a hard look at it.”

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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