Two more national advocacy groups are urging the Texas Supreme Court to review a key case focused on protecting citizens’ rights to exercise political free speech that criticizes elected officials.
The Center for American Liberty and Citizens Defending Freedom-USA have joined a coalition of First Amendment advocates in filing amicus briefs arguing that the Court should weigh in on the case in order to preserve free speech protections for the public and press provided by the Texas Citizens Participation Act.
The case, Frazier v. Chabot, pits disgraced former State Rep. Frederick Frazier against his 2022 Republican primary rival Paul Chabot over a website Chabot created that was deemed “defamatory” to Frazier.
Chabot’s attorney, Tony McDonald, described Frazier’s complaint as a “quintessential SLAPP suit.”
Strategic Lawsuits Against Public Participation are filed to intimidate and silence citizens exercising their First Amendment rights to criticize politicians.
State lawmakers passed the Texas Citizens Participation Act in 2011 to protect against such suits.
Frazier’s attorney, Christopher Kratochvil, argued that Chabot’s statements about Frazier being “convicted” of crimes and “dishonorably discharged” from the Dallas Police Department were not protected by the TCPA, even though they were “once true,” because “things changed.”
In January, a coalition of eight state and national First Amendment advocacy groups filed an amicus brief urging the Texas Supreme Court to review lower court rulings that have allowed Frazier’s defamation case to proceed.
They argued that the rulings have “narrowed critical First Amendment protections for the public and the press on core political speech and undermined the Texas Citizens Participation Act.”
Since then, both The Center for American Liberty and Citizens Defending Freedom-USA have filed similar briefs.
“The First Amendment precludes using defamation law as a cudgel—least of all by public officials,” states the Center for American Liberty brief. “Yet the panel’s decision below weakens the foundation of constitutional gatekeeping that has long protected criticism of government actors.”
CAL argues that “even if the suit goes forward, it should be only on the specific allegations that survive scrutiny under the TCPA, and no others.”
The stakes are straightforward. Public debate in Texas, especially on local and state governance, often occurs on sharp terms. If a public official’s broad-ranging defamation claim can survive a TCPA challenge by proving a prima facie case as to only some of the allegedly defamatory statements, the predictable incentive is vague allegations and overpleading: load the petition with scattershot allegations, survive on a subset, and use the remaining to preserve discovery leverage, expense, and uncertainty. That is the very litigation dynamic the TCPA was designed to prevent…
The panel’s decision also risks distorting the actual-malice inquiry in a way that will reverberate well beyond this case. To the extent the decision treats the defendant’s continued speech after receiving a cease-and-desist letter as sufficient evidence of actual malice, it invites a playbook in which public officials convert pre-suit threats into conclusive proof of culpable intent. But actual malice is a subjective standard that requires proof of at least a reckless state of mind; it is not established by mere notice that the public official disagrees with the statements plus persistence. If the panel’s reasoning stands, public officials will be able to manufacture actual malice simply by demanding retraction and then suing when the speaker refuses to fold. That is not the law.
“This Court should grant the petition to restore the constitutionally required statement-by-statement framework in public-official defamation cases and reaffirm that the TCPA operates as a meaningful early check on suits that chill speech regarding public officials on matters of public concern,” the CAL brief states.
Citizens Defending Freedom’s brief argues that “vigorous criticism of public officials” is “indispensable to informed self-government and the electoral process” and that the Texas Constitution was written to “protect vigorous public debate—especially criticism of government officials—from being chilled by civil liability.”
CDF also cites the Texas Citizens Participation Act, “enacted in 2011 (HB 2973) and amended in 2019 (HB 2730) to fulfill the Texas constitutional promises,” noting that “bill analyses and legislative hearings stressed the need for early dismissal of frivolous lawsuits that chill protected speech, including criticism of public officials.”
The Court of Appeals’ decision allowing Frederick Frazier’s suit to proceed against Paul Chabot turns defamation law into a weapon that public officials can wield to silence political critics. This contravenes both the legislative intent behind the TCPA and the robust state constitutional protections in the State of Texas. When courts permit litigation to proceed on unproven allegations while treating post- publication demands for retraction as evidence of malice, they transform the judicial system into an instrument of censorship. This Court should grant review to reaffirm the TCPA’s role in protecting core political speech and to prevent the chilling effect that results when public officials can use litigation as a cudgel against citizens engaged in debate or [who] criticize their character or fitness for office.
“We are excited so many groups are joining our petition calling on the Court to act,” McDonald told Texas Scorecard.
“The very fabric of our republic hinges on the right of citizens to freely criticize their elected officials,” said McDonald. “A growing coalition of organizations across the state and nation recognize that the lower courts have undermined the protections for Texans’ free speech rights and that it’s imperative for the Texas Supreme Court to act to preserve the rule of law.”
The next filing in the case is due from Frazier by March 9.
McDonald said he expects the court to make a decision within the next 60 to 90 days.
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