On May 15, 2013, the Dallas Court of Appeals issued two significant opinions discussing the Texas Anti-SLAPP Act. Tex. Civ. Prac. & Rem. Code § 27.001-27.011. The acronym, SLAPP, stands for Strategic Lawsuit Against Public Participation. The fear underlying the Act is that deep-pocketed special interests are targeting ordinary people who are exercising their First Amendment rights by suing them to within an inch of their life until they stop talking. This seems like a noble cause, but that’s not how the statute is being used.
The law creates an early dismissal procedure that requires a plaintiff to prove their case immediately after filing suit. The trouble with the law is that the courts are interpreting it to apply to almost any kind of claim. For example, suppose a newspaper columnist decided that he did not like a local business. With his employer’s approval, he begins to falsely accuse the business of lying to and cheating its customers. The accusations bear fruit, and the business fails. The business would be able to state a claim under the common law for business disparagement.
The Anti-SLAPP Act says that it is only intended to protect people whose speech involves participation in government, but that is not how the courts are interpreting it. The Dallas Court of Appeals has established some of the first precedent interpreting the Act, and its recent opinions apply the dismissal procedure to any speech involving goods or services. The newspaper could rely on these opinions to move for dismissal, and the statute specifically denies the business the right to seek discovery on the elements of its claim.
The problem with this procedure should be obvious. To establish business disparagement, the business has to prove that the conduct by the newspaper is malicious, which it cannot prove without obtaining information that only the newspaper has. The claim cannot survive the dismissal procedure because the Anti-SLAPP Act prevents anything other than limited discovery with only 30 days to make a decision.
In the interest of full disclosure, I have a bias on this issue. I represent a company that was a long-time member of a well-known association of businesses. The association had nothing but effusive praise for the company. But they had a falling out, and the company was subjected to retaliation in the form of “reviews” and comments about the company’s conduct that damaged its sales. If the Anti-SLAPP Act is applied broadly, my client’s common law remedy is severely curtailed.
Instead of protecting the little guy, the Anti-SLAPP suit is being used by deep-pocketed special interests to grind the less powerful down and forward their own agenda. Exactly the opposite of its supposed purpose.