By THOMAS S. LEATHERBURY
Texas Press Association
No legislation does more to advance Texans’ First Amendment rights than the 2011 Texas Citizens Participation Act. The act quickly dismisses unmeritorious claims attacking speech, association and petition rights; stays discovery until appellate courts decide claims are sufficiently supported; and awards attorney’s fees and costs to successful movants. The act particularly addresses situations where resource-rich Goliath sues to silence David, armed with a slingshot and a pro bono attorney.
But the Texas Legislature continues hacking away at the act’s protections, narrowing Texans’ First Amendment rights. Because of isolated cases elevated by well-connected Goliaths, Senate Bill 896 targets the stay shielding constitutionally protected activity from costly discovery and trial until appellate courts weigh in.
SB 896, which passed the Senate, lifts the stay of discovery and trial when: The trial court finds the act motion: 1. was frivolous or filed solely for delay; 2. was untimely; or 3. involved speech or conduct excluded from the act by the ever-burgeoning list of exemptions.
Why should all unsuccessful Texas Citizens Participation Act movants benefit from a stay on appeal? Respectfully, trial courts get it wrong sometimes. Appellate courts often reverse trial court findings of frivolousness.
Trial courts run busy dockets, few have law clerks to help research, they may be less familiar with constitutional issues and, unfortunately, sometimes trial courts dislike movants’ speech as much as plaintiffs do.
SB 896 proponents argue the issues of timely filing and exempt speech or conduct are straightforward. Their lack of experience with and shallow research on the act shows. Appellate courts affirm denials of TCPA motions based on timeliness or exempt conduct in fewer than half of cases.
In the 2017 case of Hearst Newspapers LLC vs. Status Lounge Inc., the trial court misunderstood the Texas retraction statute’s time periods and denied the TCPA motion as untimely. The appellate courts reversed and held the motion was timely, after almost five years.
In another case involving a company called Kinder Morgan, the trial court held the motion challenging an amended pleading was untimely. The Texas Supreme Court corrected that erroneous holding years later.
In these and countless other cases, with no stay, the cases can go to trial [after incurring thousands of dollars in costs conducting written discovery, depositions, discovery motion practice and appellate mandamus proceedings] while the appeals of denials of motions to dismiss are pending – when the trial courts should have granted the TCPA motions to dismiss.
On exempt speech and conduct, the law gets murkier. The Texas Supreme Court hasn’t construed many of the exemptions, particularly those the legislature added in 2019. Some have not been interpreted by our intermediate courts of appeals. Underresourced trial courts make their best judgment on multiple questions of first impression, but history shows that trial court decisions are often wrong.
In a Better Business Bureau case, it took more than four years for the appellate courts to correct the trial court’s mistaken ruling that commercial speech was involved. Without the stay, the parties would engage in costly discovery proceedings in the trial and appellate courts and go to trial while the wrongful denial of the motion to dismiss is appealed.
Proponents of SB 896 have personalized the stay in isolated cases involving apparent gamesmanship, with little thought to the harm that lifting the stay does to Texans’ First Amendment rights and pocketbooks and to orderly judicial administration.
The need for appellate review is strong. The stay allows for full implementation of the Texas Citizens Participation Act’s promise by allowing appellate courts to decide whether lawsuits are meritorious enough to proceed before subjecting parties and courts to expensive discovery, inevitable discovery disputes and multiple motions on tight time frames. The legislature should reject SB 896.
Thomas S. Leatherbury is an attorney and the director of the First Amendment Clinic and an adjunct clinical professor of law at Southern Methodist University.