Laws protecting Americans against costly, meritless, and speech-suppressing lawsuits are expanding and improving nationwide, now covering 34 states plus the District of Columbia. As detailed in the 2023 Institute for Free Speech (IFS) Anti-SLAPP Report Card,[1] for the first time, over half of the U.S. population now resides in a jurisdiction with a good anti-SLAPP law.[2] Texans have enjoyed the expressive freedom protections of a robust anti-SLAPP law since 2011, when the Texas Citizens Participation Act (TCPA) was enacted.[3]
However, there are proposals to weaken some of the essential protections the statute affords. One would repeal the provision of the TCPA that stays discovery and trial in a SLAPP case until such time that an appeals court has ruled, if asked to do so, on an anti-SLAPP motion. Supporters of these proposals argue that an anti-SLAPP motion “‘has become an abusive sword’”[4] that is itself frivolous, mainly deployed to delay litigation; is filed in an untimely manner; and/or is unrelated to free speech.
The data do not support these assertions. In fact, the data show that when a ruling of a trial court on an anti-SLAPP motion is appealed, most of the time the ruling below is wrong. This is based on a review of all appellate rulings (during periods of time indicated below) on anti-SLAPP motions due to claims they are frivolous, untimely, or involve speech that is exempt from the TCPA’s coverage.
The TCPA and interlocutory appeals
Anti-SLAPP laws protect against “SLAPP” suits, which stands for “strategic litigation against public participation.” Unscrupulous plaintiffs engage in lawfare, abusing the legal system by using SLAPPs to prevent speakers from exercising their First Amendment rights, suppressing, punishing, or chilling speech that the plaintiff doesn’t like.
To address this, Texas lawmakers passed the TCPA in 2011. Last year, the TCPA earned an A- grade and an overall 93% score in the IFS 2023 Anti-SLAPP Report Card,[5] ranking the state 15th best in the nation. Only 35% of the states (and the District of Columbia) were awarded any kind of A grade in the Report Card. The TCPA is a notable standout with a 98% subscore for excellent anti-SLAPP court procedures.
These procedures include an interlocutory appeal of an order on an anti-SLAPP motion. If an anti-SLAPP motion is denied, an “interlocutory” appeal is permitted. Generally, this is a request to a higher court to decide a particular issue immediately. In most litigation, interlocutory appeals are difficult to obtain before the case is concluded at a trial court, so this right of appeal is an important feature of an effective anti-SLAPP law. An interlocutory appeal on an anti-SLAPP motion suspends other aspects of the litigation until a higher court can rule on the anti-SLAPP motion.
Often the intended purpose of a SLAPP suit is to burden a speaker to such an extent and duration that their voice is effectively silenced. An interlocutory appeal, if successful, can shorten the time and reduce the cost of complying with the burdensome expense of a prolonged, untargeted and meritless discovery process. In short, these appeals preserve a defendant’s ability to exercise their First Amendment-protected free speech and free press rights. As Thomas S. Leatherbury, an attorney, and the Director of the First Amendment Clinic at Southern Methodist University, observes: “The need for appellate review is strong”; the TCPA loses much of its strength if “parties and courts” are subjected “to expensive discovery, inevitable discovery disputes and multiple motions on time frames” before an appellate court has decided “whether lawsuits are meritorious enough to proceed.”[6]
It is this interlocutory appeal process that opponents of the TCPA want to gut to ensure that SLAPP suits can continue to suppress the free speech activities of their targets, thereby delaying or obstructing further public participation by discouraging others from speaking out of fear of legal repercussions.
SB896
Under SB896 from the 88th Legislative session, discovery and trial in a SLAPP case would no longer be stayed, pending appeal, if a trial court denied an anti-SLAPP motion because it found the motion to be (a) frivolous or filed simply to delay proceedings; (b) untimely; or (c) involved expression exempted from the TCPA’s coverage. In other words, SB896 would remove the TCPA’s automatic stay, allowing trial court proceedings to continue while a TCPA ruling is being appealed.
Wallace Jefferson, former Chief Justice of the Texas Supreme Court, has explained that SB896 would “‘create a two-tier system in which parties’” “‘would be forced to litigate their cases simultaneously at the trial and appellate courts.’”[7] This shift would “‘cause significant perils for both litigants and courts,’” costing the parties—and taxpayers—countless dollars in fruitless litigation.[8]
This is because, as the following data show, trial courts can—and do—get both TCPA statutory questions, and First Amendment questions underlying the operative claims, wrong.
The Data and Analysis
The following data represent all appeals of TCPA cases involving assertions of frivolousness, untimeliness, and exemptions. Keep in mind that most trial court rulings on anti-SLAPP motions are not appealed and are not part of this analysis.
Frivolousness
- Among appeals from the trial court level, the assertion that an anti-SLAPP motion was frivolous was made in 109 cases (between 2012 and December 31, 2023). In 76 of those cases, the trial court found that the motion was not frivolous, and the appeals court affirmed.
The trial court found frivolousness in only 33 (30.3%) cases that were later appealed.
- Of those 33 trial court findings of frivolousness:
19 (57.6%) were reversed on appeal.
10 (30.3%) more were reversed on appeal and reversed the denial of the motion.
This means that when a ruling finding frivolousness was appealed, the trial courts got it wrong 87.9% of the time.
Was the anti-SLAPP motion submitted in a timely manner?
- Among appeals from the trial court, the trial court had decided that the anti-SLAPP motion was not submitted in a timely manner in 65 cases (between 2012 and December 31, 2023).
- 25 of those timeliness decisions were reversed on appeal.
- 22 of those timeliness decisions were affirmed on appeal.
- The timeliness issue was not referenced in the remaining 18 cases (this situation typically arises when a court decides that it does not need to address that issue).
On appeal where the timeliness issue was decided, the trial courts got the timeliness ruling wrong in 53% of cases (25 out of 47 cases).
Exemptions
- Among appeals from the trial court on exemptions, there were 82 trial court decisions that the speech involved in the case was exempt from coverage by the TCPA (between 2012 and April 2023). Only 30 of those decisions were affirmed on appeal.
On appeal where the exemption issue was decided, the trial courts got the exemption ruling wrong in 63.4% of cases (52 out of 82 cases).
These unfortunate statistics are the consequence of a legal landscape that is still adapting to recent amendments to the law, including the addition of a myriad of exemptions in 2019, the contours of which are still being interpreted by the appellate courts. And timeliness decisions are not cut and dry, in part, due to the lax Texas civil procedure rules that invite amendments of claims up until the eve of trial. Timeliness decisions are often reversed on appeal.
In short, TCPA jurisprudence fundamentally relies on appellate litigation to resolve basic questions of merit and justiciability. The TCPA’s current operation safeguards against a SLAPP victim having to bear substantial litigation costs if the trial court got it wrong. It protects against expensive and needless dual-track litigation while the courts are still sorting out whether there is even merit to the claims.
Conclusion
Recent national trends show strong improvements in anti-SLAPP laws. There is increasing state legislative and judicial awareness of the importance of anti-SLAPP laws to free expression. Thirty-four states and the District of Columbia now have a functioning anti-SLAPP statute.
But Texas has made some moves in the opposite direction. In 2019, the Texas Legislature modified the TCPA, limiting its coverage by including eight new exemptions from the law. Now legislation like SB896 would, if adopted, substantially limit the law’s effectiveness, chilling the right to speak out on matters of public concern. A thriving democracy requires active participation in public affairs; further efforts to weaken the TCPA should be rejected.
[1] Institute for Free Speech, “2023 Anti-SLAPP Report Card,” available at https://www.ifs.org/anti-slapp-report/
[2] A “good” anti-SLAPP law is defined, in the IFS Anti-SLAPP Report Card, as meaning a law that receives an overall grade of “B” or better.
[3] Tex. Civ. Prac. & Rem. Code § 27.001 through § 27.011 – text available at https://statutes.capitol.texas.gov/Docs/CP/htm/CP.27.htm
[4] Rep. Jeff Leach, R-Plano, quoted in Matthew Watkins, “House Committee Advances Tweak to Free Speech Protection Law, Prompting Fear From First Amendment Advocates,” Texas Tribune, May 3, 2023, available at https://www.texastribune.org/2023/05/03/texas-anti-slapp-law-change/
[5] Institute for Free Speech, “2023 Anti-SLAPP Report Card.”
[6] Thomas S. Leatherbury, “Protect First Amendment Rights. Senate Bill 896 Should Die in the House,” Dallas Morning News, May 12, 2023, https://www.dallasnews.com/opinion/commentary/2023/05/12/protect-first-amendment-rights/
[7] Quoted in Matthew Watkins, “Journalists Fear Texas Legislature Could Weaken Law Designed to Protect Free Speech,” Texas Tribune, April 26, 2023, available at https://www.texastribune.org/2023/04/26/texas-anti-slapp/
