“Short of a gun to the head, a greater threat to the First Amendment can scarcely be imagined,” New York Supreme Court Judge J. Nicholas Colabella observed in describing SLAPP suits in 1992. Was Judge Colabella overstating the dangers of SLAPPs? We don’t believe so.
Over the years, SLAPP suits have been brought against individuals and groups for circulating petitions, testifying at public hearings, lobbying, peaceful demonstrations - even for writing letters to the editor, say law professors George Pring and Penelope Canan , whose 1996 book, SLAPPs: Getting Sued for Speaking Out, is considered a ground-breaking work on the subject.
Here are some examples of the harm done by SLAPP suits in Texas:
In Austin, a women who had filed a complaint against a doctor before the Texas State Board of Medical Examiners and later complained to a television station was sued for defamation by the doctor. Defendants were eventually granted a summary judgment, but not before the doctor was able to run up legal costs needlessly.
In Dallas, a developer of a low-income housing project and the principal of the developer sued a local newspaper for news gathering activities prior to publication of any article, claiming that the investigation was intended to defame them and interfere with their business relationships.
In Houston, former HISD administrator Robert Kimball made complaints to the school district against a private company that contracted with HISD to teach troubled children and the company sued Kimball for defamation.
Lawsuits such as these are a clear threat to processes that perform an overriding public good by protecting individuals from possible professional malpractice, tracking the expenditure of tax dollars and watchdogging the performance of those chosen to perform services for the benefit of the community.
SLAPP suits strike at the heart of our democracy - citizen participation. Whether that comes in the form of writing a newspaper article, voicing a criticism or signing a petition, this participation without fear of legal retaliation is a cornerstone of our system. These voices must continue to be heard without the threat of multimillion dollar damages acting as a giant, heavy-handed mute button available only to individuals and corporations with fat wallets.
Two anti-SLAPP bills have been filed for consideration in the current session of the Texas Legislature. They are HB 2973 and HB 2974 by state Rep. Todd Hunter, R-Corpus Christi, and SB 1565 by state Sen. Rodney Ellis, D-Houston.
Together these bills form the Texas Citizen Participation Act, which is modeled after similar acts passed in 27 states and the District of Columbia.
If approved, the Texas act would allow defendants to seek dismissal of SLAPP suits earlier in the legal process, thus avoiding excessive litigation costs and fees. It would also allow defendants who are sued as a result of exercising their right of free speech or their right to petition the government to file a motion to dismiss the suit.
At this point, the plaintiff would be required to provide clear evidence of a genuine case for each essential point of his claim. If the motion to dismiss is granted, the plaintiff may be required to pay the defendant’s legal fees.
These protections are basic tools to help protect citizens in their free exercise of fundamental, constitutionally derived rights of speech and petition.
Over time, exercise of these rights has been openly threatened and visibly curtailed by SLAPP suits intended to intimidate and bully.
In a crowded legislative agenda in Austin, likely to get more crowded as lawmakers’ attention shifts to matters such as redistricting, these bills must not be forgotten. Defending citizens against this kind of intimidation deserves a priority.
SLAPP suits are the bully’s chosen weapon against democracy. The bullies must not be allowed to prevail any longer in Texas.