A measure that some are calling “a threat to free speech” is moving through the Texas Legislature, despite opposition from free speech advocates.

Senate Bill 896 has cleared the House Judiciary and Civil Jurisprudence Committee and could be scheduled for a floor vote as soon as next week. It would change a key aspect of the Texas Citizens Participation Act, a provision in state law that protects an individual’s right to express his opinion about public officials or matters of public concern.

The TCPA is a defense against SLAPP lawsuits, or “strategic lawsuits against public participation,” by allowing an individual sued for defamation or accused of interfering with someone else’s rights to file a motion to dismiss the lawsuit on the grounds that it is intended to intimidate or silence the individual. When an anti-SLAPP motion to dismiss is filed, all legal proceedings (such as discovery) must stop until the court has ruled on the motion and any appeals of the ruling have been resolved.

Since the TCPA’s enactment in 2011, lawmakers have sought to prevent its abuse by exempting certain cases from its application, such as those involving trade secrets, evictions, and legal proceedings pertaining to family issues like divorce, child custody, and protective orders.

As passed by the Senate, SB 896 would remove the automatic stay if the court denies the anti-SLAPP motion to dismiss and determines it is frivolous or intended to delay trial proceedings, it wasn’t filed on time, or one of the exemptions applies to the case. The House committee revised it by adding a provision that allows the stay to remain in effect for 60 days, after which time it would expire.

“Texans rely on the TCPA to know that they will not be buried in litigation in response to their speech,” explained constitutional rights attorney Tony McDonald:

SB 896, as it stands today, would severely hamper those protections by providing an avenue for a trial court to limit its protections to just 60 days. If this bill passes, it will leave many Texans victimized by abusive lawsuits and forced to fight on multiple fronts, in the trial courts and courts of appeals. Put simply, SB 896 will chill Texans’ speech.

During its committee hearing, SB 896 was also opposed by the Texas Association of Broadcasters, the Texas Press Association, the Institute for Justice, and a number of other individuals, advocacy groups, and trade organizations.

Arif Panju of the Institute for Justice argued that a SLAPP suit is “the bending of the power of the court against an individual to silence them, to drain them of their resources, and make them shut up.” He explained that “those that can afford big firms that like to litigate a lot in courts often will try to water down anti-SLAPP statutes.”

Indeed, Texans for Lawsuit Reform, the Texas Association of Business, and tax firm Ryan, LLC testified in favor of the legislation.

Lee Parsley of Texans for Lawsuit Reform said the proposal is “a very reasonable way to balance the constitutional rights that are competing here,” those being the right to free speech and the right to a trial by jury.

Andrew Vecera of Ryan, LLC said the bill would correct an “inequitable application of the law.”

A website created to promote SB 896 lists TLR and the Texas Association of Business as supporters of the bill. Interestingly, the physical address for “Yes on SB 896” is that of the Capitol visitors parking garage.

SB 896 passed the Senate unanimously on March 21 and was approved by a 6-3 vote of the House Judiciary and Civil Jurisprudence Committee on May 3, being opposed by three of the four Democrats on the committee.

If the legislation passes the House in its current form, the changes would need to be approved by the Senate before it can go to the governor’s desk.

The current legislative session ends May 29.

Darrell Frost

Since graduating from Hillsdale College, Darrell has held key roles in winning political campaigns, managed a state legislator's Capitol office, and taught at a classical charter school. He enjoys participating in outdoor activities, playing the harmonica, and learning about the latest scientific developments.

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