Texas has one of the nation’s leading state laws to protect reporters and others from being sued for trying to obtain or share public information.
Anti-SLAPP statutes, where SLAPP stands for strategic lawsuits against public participation, are designed to deter “a lawsuit filed for the purpose of shutting someone up,” explains Kevin Goldberg, legal counsel for the Association of Alternative Newsmedia (making his third visit to the podcast). “We see these mainly filed by people who are rich, powerful and don’t mind how much money they need to spend on attorneys. They file them as defamation lawsuits, as copyright infringement lawsuits or against unfair trade practices. These lawsuits are filed not only to punish someone from speaking out against them, but maybe send a message to others to deter them.”
In 2010, Texas passed a state anti-SLAPP statute that’s so robust and has served its purposes so well, it’s held up as a standard and used as a model by states who haven’t yet adopted similar legislation.
But the law as currently written is under attack, despite broad support from legislators on both sides of the aisle as well as organizations that often don’t see eye-to-eye, including the ACLU and more libertarian organizations.
While other states have seen their anti-SLAPP laws challenged by trial lawyers associations, the one in Texas is being poked apart by the torte reform community, Goldberg says.
“Texans for Lawsuit Reform did a study and … found that the statute is being used by people for things that have nothing to do with free speech,” he says. “They think (the statute) is being construed too broadly and will touch any type of lawsuit. They feel the same about what would constitute a legal action. They think the evidence needed of a plaintiff to win a case doesn’t match what’s needed in other legal proceedings. This law uses clear and specific evidence (as a mandate for proving an anti-SLAPP premise), which they say is a little difficult and undefined to follow. They think the structure overly encourages the filings of motions to dismiss. They have problems with how the law is being implemented.”
The Texas law does have strong support from the Texas Press Association and the Texas Association of Broadcasters, led by the groups’ attorney, Laura Prather, a partner with the firm Haynes and Boone LLP.
“She’s been working with sponsors, many of the people on the legislative committees in Texas, to walk some of this back,” Goldberg says of the law’s challenges. “She’s had a little success but not enough yet.”
The biggest challenge, that could make the protective law ineffective, including limiting the law’s application only to matters of constitutionally protected speech – which would not apply to defamation or copyright protection or invasion of privacy – instead of matters of public concern. “It blows a big hole in the law,” he says.