Defamation Lawsuits – Hit Back When You Get SLAPPed

Defamation lawsuits were wielded like a club up until a couple of years ago. Companies and individuals with money and legal resources could bring suit against anyone. If you publicly criticized the company polluting your local river, the doctor that took your appendix out and then slipped questionable items into the bill, or the restaurant that gave you food poisoning, you did so at your own risk— because you may have exposed yourself to an expensive court fight with little recourse other than to go through the entire time-consuming process. Even if you won the courtroom battle, you would still lose the war due to the time and cost involved. These lawsuits—some of which rose to the level of pure harassment of people’s rights to free speech—took on the acronym SLAPP, which stands for strategic lawsuits against public participation. The goal was often not to win, but rather to intimidate.

In June 2011, the Texas legislature joined what is now 27 states in giving persons hit with a SLAPP defamation lawsuits their own legal defensive weapon when it passed the Texas Citizens Participation Act (TCPA). Under the TCPA, if a lawsuit claim is based ona person exercising his/her right to free speech, right to petition or right of association regarding a matter of public concern (as defined in the statute), that person may file a motion to dismiss the claim.In addition, if the motion to dismiss is successful, the court must award to the defendant his/her attorneys’ fees and court costs, as well as some degree of sanctions to deter future actions of a similar nature.

This means that frivolous defamation lawsuits intended to intimidate and cost a defendant time, money and embarrassment could actually boomerang back to the individual and/or company, costing the one filing the suit money and embarrassment.

When enacting the statute, the Texas Legislature expressly stated, “The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

The TCPA process is designed to work quickly and set a high hurdle for the plaintiff to clear. For example, if a person exercises his/her right to free speech by starting a website for the purpose of criticizing the dumping of toxic waste into a local river, and as a result, the company dumping the waste files a defamation lawsuit against the website owner, the owner may file a TCPA motion to dismiss.

In most cases, the court must hold a hearing on the motion to dismiss within 60 days of the motion being served. The burden of proof would initially be on the website owner to establish by a preponderance of the evidence that the defamation lawsuit was filed in response to his/her exercise of first amendment rights. Assuming s/he is able to do so, then the burden shifts to the company that filed the claim to establish by clear and specific evidence a prima facie (accepted as correct until proven otherwise) case for each essential element of the claim. If the individual or company is able to do this, the motion can still be won by the website owner if s/he can establish by a preponderance of the evidence each essential element of a valid defense to the plaintiff’s claim.

Very importantly, while all of this is happening there will be a stay of discovery in the original lawsuit. This means that the website owner would not be subject to expensive and time-consuming document production, depositions, etc. while the TCPA motion to dismiss is being argued and decided.

All in all, the TCPA has proved to be an effective shield against frivolous SLAPP lawsuits, as Texas courts have in large part interpreted the act as a difficult hurdle for plaintiffs to clear.Recently, however, plaintiffs have begun to push back harder, and the Texas Supreme Court has taken up two cases that may clarify what a plaintiff has to show to meet the clear and specific evidence standard for the defamation lawsuit to go forward.

This will be the subject of Part 2 of this post. This illustrates how important it is for you to have good legal representation if you are subject to a defamation lawsuit. Remember, if you win a TCPA motion to dismiss, the other party will have to pay your attorneys’ fees and then some, and the claim will go away. But if you lose, you will have to pay both the attorneys’ fees for the motion and the case going forward.

If you are subject to a SLAPP lawsuit, Kilgore & Kilgore has experienced commercial litigation attorneys ready to evaluate your situation. Call us today at (214) 969-9099 or email to set up a free review of the facts of your case with a Dallas litigator.

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