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Anti-SLAPP Suits: Frequently Asked Questions

This article talks about the Texas Citizens Participation Act. It was written by Texas Legal Services Center. 

 

What are SLAPP lawsuits?

SLAPP stands for “Strategic Lawsuit Against Public Participation.”

This name describes a lawsuit filed to stop a person or group from speaking out or exercising their First Amendment rights. The person or business suing you in a true SLAPP suit often claims that you have damaged their reputation or wrongfully interfered with a right plaintiff claims to have, but really they just want to intimidate you into silence. 

 

What is the Texas Citizens Participation Act?

In Texas, the law that protects people from SLAPP lawsuits is called the Texas Citizens Participation Act. It protects your First Amendment rights such as free speech, the right to petition (ask the government for help), and the right of association. It is often referred to as the “Anti-SLAPP law.”

Here is an example:

Austin Pet Groomers R Us (APGRU) is a dog and cat grooming business in Texas. A Twitter feed called @APGRUsCatDog starts tweeting out messages like “Austin Pet Groomers R Us is a cat-astrophe; my haircut is uneven” and “I’m barking mad - they forgot to clip my nails.” APGRU files a lawsuit for libel against the owner of @APGRUsCatDog so these tweets will stop.

This libel claim may be a SLAPP lawsuit, and @APGRUsCatDog may be able to use the Texas Citizens Participation Act to dismiss (stop) the lawsuit. 

 

How can the Texas Citizens Participation Act help me?

The Texas Citizens Participation Act protects your rights by giving you:

  • Anti-SLAPP Motion to Dismiss: This motion asks the court to promptly end lawsuits that violate the Texas Citizens Participation Act.
  • Help paying for a lawyer: If you win your Anti-SLAPP Motion to Dismiss, the other side may have to pay your attorney's fees.
  • Protection: The court may impose sanctions on the other party to discourage them from filing a SLAPP lawsuit against others in the future. 

 

What is an Anti-SLAPP Motion to Dismiss?

An anti-SLAPP Motion to Dismiss asks the court to dismiss a lawsuit that violates your right to free speech, right to petition, or right of association. The Texas Citizens Participation Act makes it easier to dismiss these cases without spending a lot of time and money. 

An Anti-SLAPP Motion to Dismiss does not have to argue that the plaintiff is wrong. The motion only has to show that the suit violates the Texas Citizens Participation Act

 

How do I know if the lawsuit filed against me is a SLAPP lawsuit?

It can be hard to figure out if a lawsuit is actually a SLAPP lawsuit. SLAPP lawsuits often claim that the defendant did something harmful, such as libel, slander, or tortious interference.

Additionally, SLAPP lawsuits are sometimes used by abusers or perpetrators in domestic violence or sexual assault situations to silence their victims. Please see our upcoming article titled “Domestic Violence, Sexual Assault and SLAPP Lawsuits: How Abusers & Assailants Use SLAPP Lawsuits to Silence Their Victims” for more information. 

If you incorrectly file an Anti-SLAPP Motion to Dismiss, the court can choose to make you pay the other side for defense costs. It is important to identify correctly whether your lawsuit is actually a SLAPP lawsuit or not before proceeding with any Anti-SLAPP Motion to Dismiss. 

If you think you might be the victim of a SLAPP lawsuit, please talk to an attorney. The Texas Citizens Participation Act even makes hiring an attorney easier by requiring the other side pay your costs if you win. 

See Is it a SLAPP Suit? How to Prepare Your Case for a Lawyer

 

Who are the parties in a SLAPP lawsuit?

With an Anti-SLAPP Motion to Dismiss, the movant is the party who is being silenced and is usually the defendant in the lawsuit. The movant files the Anti-SLAPP Motion to Dismiss (stop) the lawsuit.

The nonmovant is usually the plaintiff: the person or business who filed the lawsuit to silence the defendant. The nonmovant does not want the motion to dismiss to succeed.

 

Do I need a lawyer to help me?

If possible, yes. The information on TexasLawHelp is not a substitute for the legal advice and counsel of a lawyer. A lawyer is trained to protect your legal rights. The Texas Citizens Participation Act makes the other side pay for your lawyer if you win your Anti-SLAPP Motion to Dismiss, so there is no reason not to at least talk to a lawyer to see if you have a good case.  

If you need help finding a lawyer, you can:

  • Use our Legal Help Finder to search for a lawyer referral service, legal aid office or self-help center in your area.
  • Check our Legal Clinic Calendar to learn if there is an upcoming free legal clinic near you.
  • Use Ask a Question to chat online with a lawyer or law student. 

See Is it a SLAPP Suit? How to Prepare Your Case for a Lawyer

 

What rights does the Texas Citizens Participation Act protect?

The Texas Citizens Participation Act protects your rights to associate freely, petition the government, and speak freely about political and social issues. 

See Texas Civil Practice and Remedies Code 27.001.

 

What is the right of free speech under the Texas Citizens Participation Act?

The Texas Citizens Participation Act defines the right of free speech as “a communication made in connection with a matter of public concern.”

This includes your posts online, e-mails, verbal statements, written statements, and statements made on the TV or radio. Courts have found that that the Texas Citizens Participation Act protects things said privately as well as publicly, so long as the speech is about matters of public concern.

Note that speech does not have to be objectively true to be a matter of public concern. For example, the Act protects the right to state opinions about products, services, and even published works of art.

See Texas Civil Practice and Remedies Code 27.001 and 27.010(b).

 

What does the right to petition mean under the Texas Citizens Participation Act?

The right to petition, which could be described as the right to communicate to the government, is a First Amendment right under the U.S. Constitution and the Texas Constitution. The Texas Citizens Participation Act protects this right to petition. See Texas Civil Practices and Remedies Code 27.001(4) for the full definition of “right to petition” under Texas law, along with a list of the types of government proceedings that the Act protects.

Talk to a lawyer if you think someone filed a SLAPP suit against you because you were exercising your right to petition.

 

What does the right of association mean under the Texas Citizens Participation Act?

Under Texas law, the right of association means the right to join with others to “express, promote, pursue, or defend common interests” in relation to government or other public concern. This can include things such as attending a political rally, organizing a beach cleanup, gathering signatures for a petition, etc. 

See Texas Civil Practice and Remedies Code 27.001(2).

 

What is discovery?

Discovery is the legal process that allows each side of a lawsuit to ask the other side for information related to the case. Discovery can end up costing a lot of money in attorney's fees. It can also be stressful, take a long time, and put personal information into public court records. Read more about discovery here.

One of the most important things the Texas Citizens Participation Act does is to prohibit or limit discovery when someone files an Anti-SLAPP Motion to Dismiss. Full discovery only takes place if the court denies the motion. 

 

When is “limited discovery” allowed for an Anti-SLAPP Motion to Dismiss?

The Texas Citizens Participation Act lets the court approve limited discovery if there is "good cause." To show good cause, the nonmovant must show that they need to gather evidence to defeat the Anti-SLAPP motion to dismiss.

The limited discovery must relate to the Anti-SLAPP Motion to Dismiss, and the hearing still has to take place within 120 days of when the other side got a copy of your filed motion. This ensures that even when limited discovery is approved, it does not drag on.

 

I just received notice someone is suing me. How long do I have to file an Anti-SLAPP Motion to Dismiss?

You can file an Anti-SLAPP Motion to Dismiss up to 60 days after a sheriff, constable, or professional process server gives you notice of the lawsuit.

There is a limited exception for filing an Anti-SLAPP Motion to Dismiss past the 60-day deadline for “good cause.” However, you should not rely on this. If you would like to file an Anti-SLAPP Motion to Dismiss past 60 days from when you were served, talk to a lawyer for help. Use our Legal Help Finder to search for a lawyer referral service, legal aid office, or self-help center in your area. See also Is it a SLAPP Suit? How to Prepare Your Case for a Lawyer

Remember, if the court decides that the case violates the Texas Citizens Participation Act, the person suing you will have to pay your attorney's fees. It is always good to contact an attorney as soon as you think you might be subject to a SLAPP lawsuit. 

 

Can the Texas Citizens Participation Act help me get a lawyer?

Yes, the Texas Citizens Participation Act can help you get a lawyer. If you win the Anti-SLAPP Motion to Dismiss, the other side must pay your court costs, attorney's fees, and other expenses. This makes it easier to hire an attorney if you have a good case. 

To decide if you have a good case, a lawyer might consider factors such as:

  • The extent of your damages,
  • Who the person suing you is,
  • Whether the person suing you has enough money to pay a judgment, and
  • The nature of the speech and actions over which you are being sued.

Being able to tell a lawyer as much information as possible about these factors can make it more likely they will take your case.

See also Is it a SLAPP Suit? How to Prepare Your Case for a Lawyer

 

Can you appeal a ruling on an Anti-SLAPP Motion to Dismiss?

Yes. The losing party can appeal a court's ruling on an Anti-SLAPP Motion to Dismiss, whether the court granted the motion or not. The appellate court will decide about the appeal before the case can continue in the lower court.

If you want to appeal, or if the other side appeals, contact a lawyer for help.

 

Other than an Anti-SLAPP Motion to Dismiss, are there any other defenses to a SLAPP lawsuit?

Yes. SLAPP plaintiffs often claim that the defendant defamed them in some way. There are affirmative defenses that, if true, can help the defendant win these types of cases. These affirmative defenses include substantial truth and consent

Substantial Truth

Substantial truth is an affirmative defense in a defamation suit. Substantial truth means that the speech is basically true. Substantially true speech does not add or leave out anything important in a way that causes harm. Small mistakes do not matter so long as they do not change the meaning.

Example: George saw Ed run a red light in a school zone. George is upset at Ed’s dangerous behavior, so he writes an honest and accurate post about it on social media. Ed sees the post and sues George for defamation. George can use the substantial truth of his post as an affirmative defense.

Consent

There is consent when a person knows an activity might harm them, but they choose to participate anyway. Consent can be an affirmative defense in different types of lawsuits.

In a defamation suit, consent exists when a person agrees to be talked or written about in a potentially negative manner.

Example: Ron goes to the county fair and sees a booth that says “Boppo the Insult Clown.” In the booth, people are throwing tomatoes at a clown. Ron sees that the clown shouts outrageous insults at anyone who misses. Ron pays the booth attendant a dollar, waits his turn, and throws a tomato at the clown.

When Ron misses, Boppo shouts something hurtful and untrue at Ron. To make matters worse, other people hear the insult and laugh. Ron gets very upset, has an asthma attack, and must go to the hospital. Ron later sues Boppo for defamation. Boppo can use Ron’s consent to be insulted as an affirmative defense.

Click here for more information on affirmative defenses.

 

What happens if I win my Anti-SLAPP Motion to Dismiss?

If the court grants the Anti-SLAPP Motion to Dismiss, the suit against you ends (although the other side can appeal). If you had a lawyer, the court will make the other side pay your lawyer’s fees along with any other defense costs. The court might impose sanctions on the other side as well.

If the court denies the Anti-SLAPP Motion to Dismiss, the lawsuit continues. The discovery process would normally start at this point. If this is the case, you should strongly consider contacting an attorney for more help. 

 

When will I go the hearing on my Anti-SLAPP Motion to Dismiss?

There will usually be a hearing on your motion within 60 days. The 60 days start when you give the other side a copy of the filed and stamped motion.

However, the time limit can also be 90 days if the parties agree or the court is too busy to hold the hearing within 60 days.

If the court thinks that there should be some limited discovery, the hearing will be within 120 days of when you give the other side the filed and stamped motion. (Discovery is when the sides ask each other for information important to the case.)

 

Disclaimer

The Texas Citizens Participation Act is a new and changing area of law.

On June 2, 2019, the Texas governor signed HB 2730, which limits the scope of the Act, effective September 1, 2019.

If you are served with what might be a SLAPP lawsuit, you should talk to a lawyer. Use the Legal Help Finder tool to help you find a lawyer.