When a plaintiff brings a SLAPP lawsuit against someone attempting to exercise their right of free speech, it is usually under the guise of a defamation claim.

The purpose of the Texas Citizens Participation Act is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. Civ. PRAC. & REM. CODE ANN. § 27.002

We handle defamation and freedom of speech lawsuits. We file suits against those who publish defaming and harmful words and images that ruin business relations and business reputation. We also handle the defense of or counterclaim of such lawsuits and SLAPP and AntiSLAPP litigation.

“SLAPP” short for strategic lawsuits against public participation.

SLAPPs have become an all-too-common tool for intimidating and silencing critics of businesses, often for environmental and local land development issues.

An “anti-SLAPP” law is meant to provide a remedy from SLAPP suits. Under most such statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that they will prevail in the suit — meaning they must make more than allegations of harm and actually show that they have evidence that can result in a verdict in their favor. If the defendant prevails on the motion, many of the statutes allow them to collect reasonable attorney’s fees from the plaintiff.

The TCPA, H.B. No. 2973, allows you to counter a SLAPP suit against you based on your statements in exercise of your right of free speech, petition, or association. The statute provides for a special motion to dismiss, and allows (with some exceptions) for a stay of discovery proceedings while your motion is being considered. If your motion to dismiss is successful, the court will award you attorneys’ fees, court costs, and possibly punitive damages against the party that filed the lawsuit.

The statute allows for dismissal of suits based on any type of communication, in any medium, that is: related to a “matter of public concern”; or pertaining to or in connection with any governmental proceeding or issue being considered by any governmental branch; or between individuals “who join together to collectively express, promote, pursue, or defend common interests.”

To challenge a lawsuit under the Citizens Participation Act, you must show that it is based on your act or acts of “communication” (defined as the “making or submitting” of any “statement or document in any form or medium”) in connection with your rights of association, petition, or free speech. The statute broadly defines these rights:

  • (a) “Right of association” refers to people collectively “express[ing], promot[ing], pursu[ing], or defend[ing] common interests.”
  • (b) “Right of free speech” refers to communications related to “a matter of public concern.”
  • (c) “Right to petition” refers to a wide range of activities relating to governmental proceedings or issues being considered by governmental bodies.

On the tiling of a motion to dismiss pursuant to section 27003(a), all discovery in the legal action is suspended until the court has ruled on the motion to dismiss, except as provided by section 27.006(b). Id. § 27.003(c). Section 27.006(b) states, “On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.” id. § 27.006(b).

To maintain a defamation cause of action one must prove that the defendant (1) published a false statement; (2) that was defamatory; (3) while acting with either
actual malice, if he is considered a public official or public figure, or negligence, if he is a private individual, regarding the truth of the statement.  Associated Press v. Boyd, No. 05-05-011 92-CV, 2005 WL 1140369, at *2 (Tex. App.—Dallas May 16, 2005, no pet.) (mem. op.) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)); see Bentley v. Bunton, 94 S.W.3d 561, 586—87 (Tex. 2002) (defining “defamatory” as “injurious to reputation”); see also TEX. Civ. PRAc. & REM. CODE ANN t 73 001— 006 (West 2011)

Our law firm handles the above defamation claims, SLAPP, AntiSLAPP and freedom speech claims. Call us today if you have one of these matters you would like to discuss with us.

If you prevail, in whole or in part, in your motion to dismiss under the Citizens Participation Act, the court “shall” award you “court costs, reasonable attorney’s fees, and other expenses. . . as justice and equity may require.” The court “shall” further award you damages from the plaintiff “sufficient to deter the party who brought the legal action from bringing similar actions.” In short, the court will tailor your total monetary award to suit both your costs and the specific attributes of the individual plaintiff.

Note that if the court finds that your motion to dismiss under the Act is “frivolous or solely intended to delay,” the judge “may” award court costs and attorney’s fees to the plaintiff; this is permissive, not required, and the plaintiff may not recover further punitive damages.

For representation call Texas Antislapp Lawyer Alex R. Hernandez Jr.