Paul Watler's Perspective

Print, broadcast and digital content providers in Texas have new means to fend off litigation aimed at chilling free speech through laws recently enacted by the Legislature. The measures provide important procedural safeguards to complement the state constitutional guarantee that “every person shall be at liberty to speak, write or publish his opinions on any subject.”

The legislation includes an anti-SLAPP statute and a broader lawsuit reform bill that will allow defendants—including media outlets—to seek early dismissal and interlocutory appellate review of damage suits against them on a variety of legal theories including libel and invasion of privacy.

Texas becomes the 28th state, in addition to the District of Columbia, to adopt an anti-SLAPP measure. True to the state’s unofficial motto, “Don’t Mess with Texas”, the version now on the books in the Lone Star State appears to be one of the strongest free-speech measures in the nation. Meanwhile, a separate bill that originated as a controversial “loser-pays” lawsuit reform act, widely opposed by both the plaintiff’s bar and many in the business lobby, morphed into a surprising compromise that won approval of all sides. The revised “loser-pays” bill enacts procedures for the prompt resolution of actions in a broad range of cases not limited to free-speech challenges.

The Texas Citizens Participation Act

House Bill 2973 aims to curb “strategic lawsuits against public participation” (known by the acronym “SLAPP”). The bill allows a defendant to file within 30 days a motion to dismiss if a lawsuit were based on that party’s exercise of the right of free speech, right to petition, or right of association. Free speech is defined broadly to encompass any “communication made in connection with a matter of public concern,” which aptly describes the content provided by media outlets devoted to news reporting and commentary on current events and public affairs.

The filing of a motion to dismiss suspends all discovery, thus saving media outlets the often hefty cost of that aspect of defense. The court must grant the motion to dismiss within 30 days unless the plaintiff produces “clear and specific evidence” of each element of the claim.

A successful motion to dismiss entitles the defendant to attorney fees and court costs “as justice and equity may require.” The court shall also award sanctions against the plaintiff to deter similar actions. If the court found the motion to dismiss was frivolous or solely intended to delay, the court could award court costs and reasonable attorney’s fees to the plaintiff.

The denial of the motion, or the trial court’s untimely failure to rule on it, allows the movant an interlocutory appeal which would be expedited.

“Loser-Pays” Legislation

Many legislative and legal observers were wary when House Bill 274 was filed, fearing the “junk-lawsuit” proposal tilted too far in favor of defendants and corporate interests. But as the legislative session neared an end in late May, the bill was amended to win consensus support. It has now been hailed as enacting significant changes to Texas state court practice. Although the provisions of H.B. 274 are not limited to free speech or media cases, the changes offer procedural advancements that may prove useful to print, broadcast and on-line content providers who become embroiled in litigation.

Texas state court practice has long stood apart from the federal system and many other states because it lacked an analogue to the federal rule 12(b)(6) motion to dismiss for failure to state a claim. H.B. 274 directs the Texas Supreme Court to adopt rules of civil procedure “to provide for the dismissal of causes of action that have no basis in law or in fact on motion and without evidence.” The bill further requires that such motions be determined within 45 days of filing.

Adding a 12(b)(6) motion to Texas state court practice should benefit media organizations, often targets of meritless pro se suits and actions by persons disgruntled with media coverage. However, a downside would be the “loser-pays” aspect of the bill. If a defendant files a motion to dismiss but is not successful, it will be exposed to a mandatory award of fees it may not otherwise face.

Nearly 20 years ago, Texas enacted a notable libel reform that provided for the interlocutory review of the denial of summary judgment motions in media cases. The measure proved remarkably effective at minimizing the exposure of newspapers and broadcasters in the state to “runaway” jury verdicts in defamation cases. But if the plaintiff pleaded invasion of privacy, intentional infliction of emotional distress, tortious interference or other claims, interlocutory review was not available unless there was agreement by all parties. A feature of H.B. 274 now bridges that gap.

Currently, Texas trial courts may approve interlocutory appeals of orders that involve “controlling question[s] of law as to which there is a substantial ground for difference of opinion.” TEX. GOV’T CODE § 51.014(d). However, the procedure is rarely invoked because the law prohibits a trial court from certifying such an appeal unless the parties consent. Id. at § 51.014(d)(1). H.B. 274 removes that impediment, allowing a trial court to permit an interlocutory appeal on a motion by any party, or on its own initiative. This should allow for interlocutory review of suits against the media that was not previously available, such as in invasion of privacy, trespass, wiretapping or other news-gathering related actions. Appellate courts would have the discretion to accept or reject such an appeal.

H.B. 274 was signed into law by Governor Rick Perry on May 30, 2011. H.B. 2973 received final passage and, as of May 31st, awaits the signature of the governor.

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.