Lawmakers Worry Meritless Lawsuits Threaten Free Speech

SLAPP:  "strategic lawsuit against public participation."
SLAPP: "strategic lawsuit against public participation."

When Dallas developer H. Walker Royall found out about an impending book digging into one of his projects, he went on a lawsuit bender.

He sued the author, Carla Main, and her publisher, Encounter Books. He sued Richard Epstein — the prominent libertarian academic — for a blurb he wrote praising the book. He sued Mark Lardas, who reviewed the book, and the Galveston County Daily News for publishing the review. His suit against Main and her publisher — the lower court dropped Epstein as a defendant on jurisdictional grounds, and Lardas and his newspaper settled with Royall out of court — has since become a poster child for so-called SLAPPs: strategic lawsuits against public participation.

SLAPP plaintiffs use the court system to bury opponents in a crush of legal fees and paperwork of Bleak House proportions. They are not about winning damages. They usually don’t expect to be successful, and their targets often don’t have the money to defend the case. For the wealthy like Royall, and corporations equipped with teams of lawyers and swollen legal budgets, the cost-benefit analysis is easy: Foot the expense of a lawsuit through whatever means available — usually a defamation or libel claim — and enjoy the benefit of intimidating current and future critics into silence.

Main wrote her book in the wake of Kelo v. City of New London, a controversial 2005 Supreme Court decision that approved a city’s use of eminent domain to seize land from one private property holder to sell it to another in the name of economic development. It describes an attempt by the Gulf Coast town of Freeport to condemn the property of a couple’s shrimp business so that Royall could build a marina. Royall, whose attorney did not respond to The Texas Tribune's request for comment, argues in papers filed with the court that Main defamed him. (Incidentally, the same libertarian public interest law firm that argued against New London at the Supreme Court, the Institute for Justice, is representing Main).

A lower court denied Main’s request for summary judgment, which asks the judge to rule on the evidence before a case goes to trial. Main and her attorney have appealed that decision, and the 5th Court of Appeals in Dallas will hear oral arguments in the case on Sept. 28. 

Because SLAPP lawsuits can be brought under all different kinds of claims and depend on the motive of the plaintiff, it’s difficult to quantify their prevalence in Texas. But the phenomenon has generated enough concern among lawmakers at the state and federal levels that they are moving to pass legislation to thwart what some view as the next great threat to First Amendment rights in the 21st century.

In Texas, a quirk of state legal procedure makes their victims especially vulnerable, according to Austin attorney Laura Prather, the president of the board of directors of the Freedom of Information Foundation of Texas. State law does not include a “motion to dismiss” — which in other states, and at the federal level, allows a judge to toss out a claim before parties undergo the expensive process of discovery. Instead, if a defendant wants a judge in Texas to rule on a case before trial, he must ask for a summary judgment, which happens after all the evidence in the case has come out through discovery. That’s plenty of time for a SLAPP plaintiff to drown a defendant in requests for documents, depositions and pretrial hearings.

Prather says she's in talks with lawmakers, including state Sen. Rodney Ellis, D-Houston, about forming a coalition to pass an anti-SLAPP statute next session. In an e-mail, Ellis said he planned to introduce a bill that would protect Texans from being “sued into silence,” citing the “chilling effect” the lawsuits had on the practice of free speech.

In Congress, U.S. Rep. Charlie Gonzales, D-San Antonio, recently signed on to federal legislation introduced by U.S. Rep. Steve Cohen, D-Tenn., that would allow defendants to move to a lawsuit from state to federal court (defamation and libel claims are usually brought under state law), where a judge could evaluate whether the claim threatens the defendant’s First Amendment rights. Gonzales says his experience as a district court judge taught him about the dangers of SLAPP suits — he believes the courtroom should be a “level playing field,” not a place that benefits the “very powerful who have numerous lawyers.”

According to the Public Participation Project, a group that advocates for First Amendment rights, 27 states have anti-SLAPP laws. Gonzales says legislatures can be effective in preventing meritless suits, though he believes a federal law will provide uniformity across the judicial system. That’s particularly important in an age where companies are turning to lawsuits to quell online criticism. Without a federal law, some anti-SLAPP advocates believe internet claims dealing with multiple jurisdictions could allow plaintiffs to "forum-shop" — that is, choose the court venue they think most favors their purposes.

In Texas, lawmakers have tried to pass some version of an anti-SLAPP statute since the late 1990s. Prather says the failure of the bills stems not so much from active opposition but from low priority. A bill this coming session, she believes, could attract the support of tort-reform groups, which exercise vigorous influence in the Legislature.

Hugh Rice Kelly, the general counsel of Texans for Lawsuit Reform, said his group favors such a law and that it is on the group's agenda for next session. But he cautions that across the country, "there are very few SLAPP statutes that are in fact meaningful." Texans for Lawsuit Reform opposed an anti-SLAPP bill from state Rep. Richard Peña Raymond, D-Laredo, in 2007 — because it viewed it as "over-broad" on several counts, including its language defining a "harassing" lawsuit. The closest Texas has come to anti-SLAPP statute was in 2001, when another bill from Peña Raymond passed the House and Senate, only to have Gov. Rick Perry veto it. The governor called it “a radical departure from traditional concepts of our adversarial justice system and the role of the courts." He said he opposed it because it would have created a new cause of action — a basis to sue — by holding lawyers liable if a court ruled they had brought a meritless suit on behalf of their clients. 

Houston attorney Chip Babcock, who represented Oprah Winfrey in the now-famous Texas Beef Growers lawsuit (the group sued the talk show host for saying mad-cow disease “has just stopped me cold from eating another burger” on her program in 1996), thinks Texas could benefit from an anti-SLAPP statute.

“Just one case against someone who's a citizen journalist with a blog would be enough to get them to quit talking about things,” says Babcock, who adds that a judge would have tossed the case out against Winfrey if such a statute existed. “It's no answer for that person to say, well at the end of the day, I’m going to win my case, because at the end of the day they're going to have to hire a lawyer to navigate them through the shoals of pretrial discovery and summary judgment practice, and it's very expensive.”

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