Texas Legislature Passes Free Speech Legislation Targeting Frivolous Defamation Lawsuits

John Kramer
John Kramer · May 20, 2011

Austin, Texas—On Wednesday, May 18, 2011, the Texas Legislature passed legislation designed to protect citizens and journalists from frivolous defamation lawsuits. The law, known as “Anti-SLAPP” legislation, is an attempt to curb “strategic lawsuits against public participation” (“SLAPP” suits) that are used by the wealthy and powerful to silence their critics. The mere threat of hundreds of thousands of dollars in legal fees—which can be incurred defending even the most groundless of defamation suits—is often enough to silence citizens who have been speaking out on an issue of public concern.

If signed by Governor Perry, H.B. 2973 will allow defamation defendants to file a motion to dismiss early in the lawsuit, which must be granted if evidence shows that the suit was filed in response to an exercise of free speech, the right of free association or the right to petition the government. The defendant would recover their costs and attorney’s fees if the suit is ultimately dismissed. The Institute for Justice supported an effort led by Austin-based First Amendment attorney Laura Prather to get Anti-SLAPP legislation passed this session. Texas is poised to become the twenty-eighth state to adopt some form of anti-SLAPP legislation.

Journalist Carla Main testified about the bill after she was sued for defamation by Dallas developer Walker Royall over her book, “Bulldozed: Kelo, Eminent Domain, and the American Lust for Land,” which chronicles eminent domain abuse in Freeport, Texas. Royall was the lead developer on the project.

“Walker Royall sued Carla Main for writing about eminent domain abuse in Freeport, Texas,” said Matt Miller, executive director of the Institute for Justice Texas Chapter, which represents Main in her legal defense in the case. “Main’s criticism of the city of Freeport—and the developer they chose to do business with—goes to the very heart of the First Amendment. The Citizen Participation Act protects the right of anyone who chooses to speak out about a public issue, and it blunts the ability of the rich and powerful to silence their critics with vexatious litigation.”

“Because of the nature of litigation in the United States, the power to sue can mean the power to destroy, which means those with money can silence those without it,” said Main. “This legislation will help to protect people who want to speak truth to power, which is an essential element of life in a constitutional democracy. Journalists and citizens should not be silenced for the sake of the vanity and ego of those they write about.”

Royall’s lawsuit against Main is currently awaiting a decision from the Dallas court of appeals. The appeal has been pending since September 2010. Royall’s lawsuit against Main and her publisher, Encounter Books, has been winding through the Texas courts for two-and-a-half years.



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