The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Radical—and strange—cutback proposed for Texas anti-SLAPP statute


Texas, like many other states, has an "anti-SLAPP statute"—a statute (Tex. Civ. Prac & Remedies Code § 27.001-.011) that provides for expedited review of many lawsuits—such as libel claims—based on the defendant's speech, and prompt disposal of the lawsuits if they are found to be legally meritless. It also provides for prompt appellate review and for attorney fees to be paid by prevailing defendants.

Now there are plausible arguments for and against such statutes, and for different ways of writing such statutes. But a proposed revision to the statute (H.B. No. 3811) is just odd. First, the bill would define "communication" to exclude "a statement or document that is made or submitted privately." Sounds like an attempt to limit the scope of the anti-SLAPP statute, which would be worth discussing (though much valuable speech, even on important matters, is indeed made privately). But it's actually not clear what this attempt would actually do, since the term "communication" wouldn't appear in the revised statute.

Second, the bill would limit the substantive protection to lawsuits that relate to the defendant's "participation in the government by the exercise of the constitutional right to petition, to speak freely, or to associate freely." But what does that even mean?

Does it mean that only legislators and other government officials can raise anti-SLAPP defenses based on their speech, since they are the only ones who are literally "participati[ng] in the government" by their speech? Would citizens still be able to raise such defenses, but only when they are sued for speech said to government officials? The phrase "participation in the government" isn't a legal term of art—it isn't defined in Texas statutes or precedents—but it doesn't have a clear normal meaning, as applied to speech.

It seems pretty clear that the bill is supposed to sharply limit the scope of the anti-SLAPP statute. Right, now that statute covers (1) any "communication between individuals who join together to collectively express, promote, pursue, or defend common interests," (2) any communication related to official proceedings (legislative, executive, or judicial), and (3) any communication "in connection with a matter of public concern," defined as:

an issue related to:
(A) health or safety;
(B) environmental, economic, or community well-being;
(C) the government;
(D) a public official or public figure; or
(E) a good, product, or service in the marketplace.

Whatever it might mean, "participation in the government by the exercise of the constitutional right … to speak freely" is much narrower than speech on issues related to the five categories (A) to (E). Indeed, it even looks narrower than just category (C), communication in connection with "an issue related to … the government." The proposed amendment thus seems aimed at stripping anti-SLAPP protection from statements about health or safety, environmental, economic, or community well-being, public officials or public figures, or goods, products, or services, at least unless the statements are somehow "participation in the government." (The statements would remain protected by the First Amendment, of course, but wouldn't get the procedural protections that the anti-SLAPP statute has provided for them.)

But beyond that, I can't tell you what the bill would do, and I'm not sure that anyone else can, either. Fortunately, it appears that the bill is getting a lot of opposition, and might well not go forward; I hope it indeed doesn't.