Part 1 – The Basics of the TCPA and how it works

The Texas Anti-SLAPP law is known as the Texas Citizens Participation Act (the “TCPA” found at Tex. Civ. Prac. & Rem. Code at § 27.001, et seq.).

“If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”  Id. at 27.003(a).   A defendant invoking the TCPA must therefore show three elements by a preponderance of the evidence: (1) there is a legal action; (2) “based on, relates to, or is in response to”; and (3) one of the protected activities.

“[A] court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”  Id. at 27.005(b).

The defendant has 60 days from the date of service of the pleading with the defamation claim to seek a dismissal.  Once filed, all discovery is stayed.  If properly invoked, to overcome a motion to dismiss, the claimant must “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.”  Id. at 27.005(c).

Although “clear and specific evidence” is not defined, it certainly means a defamation plaintiff should be prepared to provide some evidence and a solid legal basis immediately after filing his claim because discovery will be very limited.  The Anti-SLAPP law in Texas allows for a defendant to appeal a decision immediately if the trial court does not dismiss the suit.  We’ll discuss more on the evidentiary standard later in the series.

If a defendant prevails on a motion to dismiss, Texas courts are required to award the defendant “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”  Id. at 27.009(a).

As we will discuss in the next series, the Texas Anti-SLAPP law covers more than just your straightforward defamation suit, but the Texas Legislature has expressly said it “does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” This means it may not cover false advertising or business disparagement claims between businesses.

Section 27.010 also exempts “legal actions” seeking recovery for “bodily injury” from the Act, along with “statements made regarding that legal action.”

Despite these exemptions, we will see in the next part how the Anti-SLAPP law is being applied to more typical business commercial cases.