Texas considers strong measures against lawsuits intimidating speech

by Walter Olson on April 23, 2011

The First Amendment notwithstanding, wealthy and powerful litigants in this country often exercise the tactical power “to bully those who publicly criticize them into silence by filing frivolous lawsuits that the critics can’t afford to litigate,” with defamation lawsuits being a particularly favored means of such bullying. The majority of states have moved to enact “anti-SLAPP” laws aimed at curtailing this tactical exercise through the application of sanctions or otherwise, but such laws are often quite weak, sometimes applying only, for example, to speech aimed at petitioning the government on public matters. Now Texas lawmakers are considering what would be one of the nation’s strongest laws, protecting “communication made in connection with a matter of public concern” and including statements made in non-public forums, such as emails. The website SLAPPED in Texas has compiled a list of speech-chilling lawsuits in the Lone Star State, including the oft-criticized suit by a real estate developer against author and eminent domain critic Carla Main. [Arthur Bright/Citizen Media Law, Paul Alan Levy/CL&P]

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PointOfLaw Forum
05.19.11 at 8:09 am

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1 Amy Alkon 04.23.11 at 7:17 pm

Important measure. I had a business in my neighborhood take out a restraining order against me — after I complained, on behalf of my neighborhood, that they were sucking up scarce residential parking instead of using the spaces in their lot.

Eugene Volokh helped me defend myself (gave me his book, “The First Amendment”) and ultimately, the restraining order was dismissed. I’m not violent — just hostile to people who try to abuse my neighborhood.

All in all, it was a terrible time suck and made me afraid I could be barred from safe entry to my home. And not because I ever made a single threat (I wouldn’t do such a thing, and I’m a libertarian and don’t believe I have the right to ever touch another person except in self-defense). But, they saw an opportunity to punish me for criticizing them about the parking — knowing that in the People’s Republic of Santa Monica they’ll pretty much grant a restraining order on anybody who isn’t clinically dead.

2 Jack Olson 04.24.11 at 10:44 am

The plaintiff in a SLAPP suit is wealthier than the defendant in nearly every case. His object is not to recover damages, since the vast majority of SLAPP suits are dismissed. Instead, his object is to impose damages on the defendant through abuse of process and the cost of legal defense. Any lawyer who files a SLAPP suit and cannot understand why most Americans despise lawyers are as deluded as the teenage girl who doesn’t know how she got pregnant.

The ABA’s Model Code of Ethics and most state codes forbid a lawyer to file a frivolous lawsuit, which is exactly what a SLAPP suit is. Anti-SLAPP laws would be unnecessary if the lawyers were as interested in their own code of ethics as they are in cashing the plaintiff’s checks.

3 Smart Dude 04.24.11 at 11:25 am

Viva Texas!

ABA’s Model Code of Ethics is an unenforced window dressing by a corrupt trade group.

Loser Pays is the only solution.

4 Hugo S. Cunningham 04.25.11 at 9:48 pm

A general principle of “loser pays” would often mean that someone with a better case is sucked dry by someone able to pay a better lawyer.

A specialized “loser pays” could, however, be crafted to uphold certain priorities, eg protection of truthful speech about subjects of public interest.

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