Citizens Beware: You Could Be SLAPPed

Texas litigants considering filing a legal action for defamation need to consider whether the Texas Citizens Participation Act covers their claims. Signed in 2011, the Act provides powerful tools by which defamation defendants may not only escape liability but also can turn the tables on their accusers by obtaining an award of attorney’s fees incurred to defend the claim.

The Act applies to a legal action that is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association . . . .” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West 2015). And these rights are defined in exceptionally broad terms. Indeed, the definitions are so broad that anyone considering filing a lawsuit for defamation needs to consult an attorney to determine whether the Act will apply­—and potentially expose the claimant to having to pay the other side’s attorney’s fees.

The Act defines “exercise of the right of association” as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Id. § 27.001(2) (West 2015). This definition could easily apply to a host of communications in the workplace, just as an example. Suppose a co-worker defames you to a supervisor. The company might argue that this is a communication between individuals pursuing a common interest, thus making the Act applicable.

The Act defines “exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3) (West 2015). “Matter of public concern” is defined to include “an issue related to: (A) health or safety; [or] (B) environmental, economic, or community well-being . . . .” Id. § 27.001(7)(A), (B). Again, this could cover a broad range of communications involving a wide variety of topics.

Finally, the Act defines “exercise of the right of petition” to include any communication “in or pertaining to” a judicial proceeding or specified governmental proceedings, as well as specified communications involving issues under consideration by governmental entities. Id. § 27.001(4).

The Act permits a party defending a legal action to file an early and expedited motion to dismiss. The movant must show that the suit is based on, relates to, or is in response to the exercise of the right to free speech, petition, or association. Id. § 27.005(b). Once this is established, the plaintiff must present clear and specific evidence of a prima facie case for each essential element of the claim.  Id. § 27.005(c). Even if the plaintiff meets this burden, the court still must dismiss the lawsuit if the movant establishes, again by a preponderance of the evidence, each essential element of a valid defense. Id.  § 27.005(d).

Proceedings under the Act are expedited. The motion to dismiss must be filed within 60 days of service of the legal action on which it is based. Id. § 27.003(a). With certain limited exceptions, the filing of a motion under the Act suspends discovery. Id. § 27.003(c). The court must set an expedited hearing on the motion, and must rule within 30 days of that expedited hearing. Id. §§ 27.004, 27.005. If the trial court fails to rule within this expedited period, the motion is deemed overruled by operation of law and the movant may appeal. Id. § 27.008.

Finally—and this is the really important party—if the trial court grants the motion, it must award the moving party reasonable attorney’s fees. Id. § 27.009(a)(1); Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016).

Texas litigants need to be aware of and familiar with the provisions of the Act in cases involving defamation and similar claims. The Act provides a powerful tool by which defamation defendants may escape liability—and obtain attorney’s fees from their accusers. As a result, parties considering claims for defamation should consult an attorney about the possible applicability of the Act.