Wednesday, May 11, 2016

Protections for Political Speech -- Playing the Defamation Card

By Jonathan Spigel

In light of recent campaign rhetoric we have heard this election cycle and more that is sure to come, it bears reminder of what can and cannot be said (without legal consequences) in the political setting.  The Texas Citizens Participation Act (TCPA) is a relatively, recently-enacted (2011) statute that provides for procedural protections in favor of one accused of uttering or publishing allegedly harmful speech.  The TCPA is patterned after other anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation designed to encourage free speech and association in a governmental setting, yet provide protections for those individuals truly harmed by the spoken or written word.  

The TCPA allows for a person or entity sued over allegedly defamatory words – either spoken or printed/published – to obtain an early dismissal of such a suit where the complained of speech was the result of the exercise of free speech, the right to petition, or the right of association.  If the defendant proves this by a preponderance of the evidence, the trial court has no discretion and must dismiss the suit unless the plaintiff establishes a prima facie case for each essential element of her claims by clear and specific evidence.  In ruling on any motion to dismiss, the court is limited to consideration of the parties’ pleadings, affidavits, and any admissible discovery, if allowed.         

The motion to dismiss must be filed within sixty (60) days of service of the suit alleging defamation.  Once such a motion is filed, all pending discovery (if any) ceases until the court rules on the motion.  The court can allow certain discovery to proceed, however, it must be limited to the matters at issue in the motion and any defense.  Barring certain discovery-related exceptions, the court must have a hearing on the motion to dismiss within sixty (60) days after the motion is filed.  The court must rule on the motion within thirty (30) days after the hearing.  If it fails to do so, the motion is deemed denied by operation of law.  Thus, under certain facts and evidence, a defamation suit can be dismissed anywhere between 90 and 150 days after service of the lawsuit.  Expedited appeals of orders on such dismissal motions are allowed, whether by written order or operation of law.

A successful movant is entitled to court costs, reasonable attorney’s fees, and other expenses incurred in the defense of the defamation suit.  Additionally, sanctions may be assessed against the party filing the defamation suit if the court determines sanctions are necessary to deter future suit filings by the same party.  However, if the court determines that the motion to dismiss was a frivolous filing or one solely intended to delay, the court can award court costs and reasonable attorney’s fees to the party filing the defamation suit.

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