Enacted in 2011, the Texas Citizens Participation Act is described in Chapter 27 of the Texas Civil Practice and Remedies Code (H.B. 2973, 82nd R.S.). Designed to protect freedom of speech and other important First Amendment rights, the act has had a substantial impact on legal proceedings in Texas courts.
The TCPA was created “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” as well as “to protect the rights of a person to file meritorious lawsuits for demonstrable injury” CPRC § 27.002; Langley v. Insgroup, Inc., No. 14-19-00127-CV, 2020 WL 1679625, at *2 (Tex. App.—Houston [14th Dist.] Apr. 7, 2020, no pet.). Since its creation, however, the application of the TCPA has grown in some troubling ways.
The Anti-SLAPP Statute
The TCPA is designed to end lawsuits that jeopardize free speech, sometimes called SLAPP suits, an acronym for Strategic Lawsuits Against Public Participation. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (citing House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011)). When used as originally intended, the TCPA streamlines court proceedings by allowing a defendant to limit or even stop frivolous claims altogether. In addition, a successful defendant might also be able to recover fees and costs and even sanctions against a plaintiff. See Kawcak v. Antero Res. Corp., 528 S.W.3d 566, 569 (Tex. App.—Fort Worth 2019, pet. denied).
Many people initially assumed that the statute was mainly to protect journalists’ rights of free speech in the face of defamation suits. However, it has since been interpreted very differently, focusing more on protecting the right to speak, petition, and associate while threatening the right to file a meritorious lawsuit. The use of the TCPA in a wide range of cases, not as originally expected when the statute was created, has resulted in warnings from the Texas Supreme Court about applying the TCPA too broadly. See, e.g., Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155, at *12 (Tex. App.—Austin Apr. 7, 2015, no pet.).
As a result of the expansive use of the TCPA, several attempts were made to clarify its purpose and narrow its focus, ultimately leading to the creation of several amendments enacted in 2019. Now effective for cases filed on or after September 1, 2019, these amendments focus on the following: which legal actions are subject to or exempt from dismissal under the TCPA; what constitutes a protected right; court proceedings for motion, response, hearing, ruling, and findings; burden of proof; and financial compensation under the statute. H.B. 2730 §§ 11-12.
The Texas Supreme Court has ruled that the focus of the TCPA is not confined to protecting the First Amendment, saying that “the statute’s scope is dictated by its text, not by our understanding of the constitution.” Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018). This ruling by the Texas Supreme Court and other similar rulings consistently call for a return to its original, more narrow application.
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, played an undeniable role in the narrower interpretation of the TCPA as well. While the Texas Supreme Court’s opinion did not overtly overrule its former acceptance of the broad application of TCPA, it did shift substantially, stating that “not every communication related somehow to one of the broad categories set out in section 27.001(7) always regards a matter of public concern. A private contract dispute affecting only the fortunes of the private parties involved is simply not a ‘matter of public concern’ under any tenable understanding of those words.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 137. Following the Court’s lead, many intermediate courts have adopted narrower interpretations of the TCPA, citing the case of Creative Oil as precedent.
The use of the TCPA continues to shift. A lawyer knowledgeable about the complexities and nuances of the Texas Citizens Participation Act and the 2019 amendments should be consulted when defending or prosecuting an Anti-SLAPP proceeding.
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