The Texas Anti-SLAPP Law May Be Neutered For All The Wrong Reasons

The Texas Legislature and the Ongoing Battle Over the Texas Citizens Participation Act (TCPA)

The Texas Legislature has once again opened its session, and with it, the debate over the future of the Texas Citizens Participation Act (TCPA), the state’s Anti-SLAPP law, has reignited. Several bills, including SB 336, HB 2459, and HB 2988, have been introduced or refiled with the aim of stripping away key provisions of the TCPA that make it an effective tool for defending against abusive litigation. These bills seek to dismantle protections that are critical for individuals and organizations facing Strategic Lawsuits Against Public Participation (SLAPP suits), which are often used to silence free speech. Despite the importance of the TCPA, the proposed changes fail to address the real issue plaguing Texas courts: the lack of an effective mechanism to dismiss meritless lawsuits early in the legal process. This oversight leaves both the courts and litigants vulnerable to abuse, creating a systemic problem that the TCPA is being misused to solve.

The Proposed Changes to the TCPA and TheirImpact

One of the most concerning aspects of the proposed bills is their attempt to weaken the TCPA by removing two of its most critical features: the automatic stay of litigation during the appeal of a denied Anti-SLAPP motion and the mandatory award of attorney’s fees to defendants who successfully defend against a SLAPP suit. For instance, if the stay is eliminated, defendants who are wrongly denied protection under the TCPA would be forced to continue fighting abusive litigation even while appealing the decision. This would not only increase the financial burden on defendants but also undermine the TCPA’s purpose of providing swift relief from meritless lawsuits. Similarly, making the award of attorney’s fees discretionary rather than mandatory would remove a key deterrent against filing SLAPP suits in the first place. This change could embolden plaintiffs to file frivolous lawsuits, knowing that the financial consequences of losing are no longer guaranteed.

The Misguided Justification for Weakening the TCPA

Proponents of the proposed changes often argue that the TCPA is being abused and that Anti-SLAPP motions are clogging up the Texas Courts of Appeals. However, this claim is not supported by the data. A detailed study by the Reporters Committee for Freedom of the Press found that Anti-SLAPP motions account for only about 0.5% of all appeals in Texas between 2011 and 2023. This indicates that the supposed “abuse” of the TCPA is not the widespread problem that legislators claim it to be. Furthermore, research from the Institute for Free Speech has shown that lower court judges frequently make errors when ruling on Anti-SLAPP motions, highlighting the need for stronger, not weaker, protections. By relying on flawed or outright false information, legislatures are proposing solutions to a problem that does not exist, while ignoring the real issue: the lack of an effective mechanism to dismiss meritless lawsuits early in the process.

The Root Cause: Texas’ Lack of a Rule 12(b)(6) Analog

To understand why the TCPA is often misused, it is necessary to look back at a decision made by the Texas Supreme Court in 1941. At that time, Texas adopted new civil procedure rules, aligning its procedures more closely with the Federal Rules of Civil Procedure (FRCP). However, Texas chose not to adopt an equivalent to Federal Rule 12(b)(6), which allows defendants to file a motion to dismiss lawsuits that lack legal or factual merit. In federal courts and most other states, this rule provides a swift and effective way to weed out frivolous lawsuits before they progress to costly and time-consuming litigation. Without a similar rule in Texas, defendants are left with few options to challenge the merits of a lawsuit early on. As a result, many turn to the TCPA as a workaround, even in cases where the lawsuit does not involve free speech issues. This misuse of the TCPA is a symptom of a larger problem: Texas’ outdated civil procedure rules.

A Call for Real Reform

If the Texas Legislature is genuinely interested in fixing the perceived problems with the TCPA, it should focus on addressing the root cause of these issues. The most effective solution would be to adopt a state-level analog to Federal Rule 12(b)(6), which would provide defendants with a clear and efficient mechanism to dismiss meritless lawsuits. Texas Rule 91(a), which currently allows for the dismissal of “baseless causes of action,” is a step in the right direction but lacks the teeth needed to be effective. Unlike its federal counterpart, it does not permit courts to evaluate whether a lawsuit has a minimal factual or legal basis to proceed, and the award of attorney’s fees is discretionary rather than mandatory. Ensuring that Texas adopts a robust Rule 12(b)(6) analog would not only reduce the misuse of the TCPA but also align Texas’ civil procedure rules with those of the federal courts and most other states.

The Consequences of Inaction and the Path Forward

Given the flaws in the proposed bills and the lack of meaningful reform to address the underlying issues, it is clear that the current legislative efforts to weaken the TCPA are misguided. Rather than gutting a law that plays a critical role in protecting free speech, the Texas Legislature should focus on creating a fair and efficient legal system that balances the rights of all litigants. Until Texas adopts a Rule 12(b)(6) analog or strengthens its existing dismissal rules, the TCPA will continue to be misused as a tool for defendants seeking relief from meritless lawsuits. The debate over the TCPA is far from over, and the outcome of this legislative session will have significant implications for free speech, access to justice, and the integrity of Texas courts. As the session unfolds, all eyes will be on whether the legislature chooses to address the real problems facing the state’s judicial system or continues down a path that undermines the rights of Texas citizens. Stay tuned.