Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes are nothing new. In fact, well over half of the states in the country have an Anti-SLAPP statute of some kind. But in Texas, which has only had an Anti-SLAPP statute on the books since 2011, we have just recently started feeling the full impact of the law. Having reviewed the first round of appellate decisions, and having recently overcome the injustice of an Anti-SLAPP motion to dismiss personally, we believe the verdict is in: the statute is so poorly drafted that it fails to accomplish its stated purpose and has created a nightmare for plaintiffs who have been legitimately defamed.
SLAPP suits are meritless lawsuits initiated to silence opponents who express unfavorable and disparaging opinions. In a supposed response to SLAPP suits, the Texas Legislature passed an Anti-SLAPP statute titled the Texas Citizen Participation Act (TCPA), which is codified in Chapter 27 of the Texas Civil Practice and Remedies Code. According to the statute, the purpose of the TCPA 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.
Unfortunately, the TCPA fails to meet its lofty purpose. One might assume that cases under the act would be John Doe vs. Mega-Corp, with Mega-Corp pressuring John Doe into silence with the threat of voluminous and expensive litigation. However, a quick analysis of the case law finds that the majority of the cases utilizing the TCPA are Company vs. Company.
This is unsurprising due to the extremely broad nature of the TCPA. So much for helping David in his fight against Goliath.