Polk County Publishing Company Publisher Kelli Barnes was one of several industry leaders who testified before the House Judiciary and Civil Jurisprudence Committee on April 23.
Journalists and free speech advocates are raising alarms about a bill moving through the Texas Legislature that they worry would make news organizations and regular Texans more susceptible to frivolous lawsuits designed to squash free speech.
At issue is a proposed adjustment to the 2011 Texas Citizens Participation Act, also known as the anti-SLAPP law, which is designed to prevent litigants from weaponizing the legal system to punish people for or dissuade them from exercising their First Amendment rights. The idea is that without such a law, big companies or wealthy individuals could inflict major damage by suing people over speech they don’t like. Those suits are known as SLAPP — strategic lawsuits against public participation — cases. Even if the suits are frivolous, their existence could cost the defendants thousands of dollars or more in court fees and legal bills. Or the threat of those suits could force people to censor themselves.
Under the 2011 law restricting SLAPP suits, a person or company that is sued in what they believe is a SLAPP case can file a motion to dismiss the suit. If the trial court judge denies the motion, the defendant may file an immediate appeal — and the case is stayed while the appeals courts take it under consideration.
But Senate Bill 896 would remove that automatic stay from state law, which opponents fear could allow some cases to proceed with expensive, time-consuming demands for evidence. The measure has already passed the Senate and was recently debated by the House Judiciary and Civil Jurisprudence Committee.
“I have a recent example of how the Texas Citizens Participation Act worked for our news organization, protecting us from what would have been a devastating blow financially, and to our reputation in the communities we serve,” Barnes said.
“We have survived changes in the way we deliver news to our communities, hurricanes and floods, theft, a pandemic and most recently, a frivolous lawsuit filed by a public official who did not like what we printed about him. In our case, his exact words in a social media post were, ‘I am getting a new corvette, and I will put their name on the license plate.’ It is just this kind of frivolous case that news organizations like ours cannot withstand. We do not have the time or the money to defend ourselves,” Barnes said.
“Thankfully, the TCPA law assisted in clearing our name and may also replace money we lost. Our insurance company paid for part of the defense, and another attorney, free of charge, represented us when the case made it all the way to the Texas Supreme Court. This is just one example of a much bigger protection this law affords to news organizations committed to real community journalism and free speech,” Barnes said.
The proposed bill is supported by business groups such as the Texas Association of Business and Texans for Lawsuit Reform. They argue that defendants have misused the automatic stay during appeal to delay legitimate cases, sometimes in proceedings that have nothing to do with the First Amendment.
SB 896 would lift the automatic stay on the case if the anti-SLAPP motion were found by the trial court judge to be frivolous or solely filed as a delay tactic. If the anti-SLAPP motion were denied and found not to have been filed in a timely manner, an automatic stay would still go into effect, but would expire in 45 days if an appeals court didn’t step in. The idea, proponents say, would be to prevent what is meant to be a legal shield from being turned into a sword used aggressively to needlessly delay legitimate cases.
Opponents of the bill say it would burden an already overwhelmed court system.
“The bill would create a two-tier system in which parties, in certain instances, would be forced to litigate their cases simultaneously at the trial and appellate courts, which will cause significant perils for both litigants and courts,” Wallace B. Jefferson, who served as chief justice of the Texas Supreme Court from 2004-13, said in prepared testimony.
Media groups have lined up against the proposal, with leaders of the Texas Press Association and the Texas Association of Broadcasters, as well as First Amendment attorneys, speaking out against it at the April 23 committee meeting.
Media advocates also warned about the impact on small news outlets that don’t have the resources to defend themselves.
Donnis Baggett, executive vice president of the Texas Press Association, told the committee that many of the hundreds of newspapers his organization represents are small-town, family-run newspapers that “just can’t survive a long, drawn-out lawsuit.”
Those papers provide vital information about a community, from high school sports to civic coverage to accountability work about the actions of their local governments, and many would see their survival at risk from SLAPP suits, he said.
“If you bleed a small newspaper dry, that community is without a newspaper,” he said.
