Texas joins 26 other states in passing legislation that supports a defendant's defense of freedom of speech in civil lawsuits. The "Citizens Participation Act" (HB 2973), provides protections for individuals targeted with strategic lawsuits against public participation (anti-SLAPP). The lawsuits, often filed against bloggers and journalists, are usually brought in retaliation for a news story in which the reporter believes they exercised their right to freedom of expression in conveying the information.
The new law will allow for the defendant in a freedom of expression case in Texas to file a motion to dismiss the case based on the anti-SLAPP law within 60 days of the lawsuit being filed. A hearing must be promptly set within 30 days of filing the motion to dismiss. The judge will make a ruling based on the pleadings and affidavits filed. In limited situations the judge has the discretion to allow discovery.
The law reads: A court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party ’s exercise of: (1)the right of free speech; (2)the right to petition; or (3)the right of association.
Even if the defendant meets the preponderance of the evidence standard, if the plaintiff can show be clear and convincing evidence, each and every element of the underlying cause of action, the case will not be dismissed. The clear and convincing evidence standard is a very high hurdle for the plaintiff.
What makes the anti-SLAPP law most effective is the threat of the prevailing party recovering costs and attorneys' fees. It will be interesting to watch what will be the first test cases to be filed in Texas.
I would also like to give a shout to my friend and colleague media attorney Laura Lee Prather for spear-heading this bill.