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Americans’ right to speak their minds is considered sacred, which is why we must fight to protect the First Amendment of the U.S. Constitution and the Texas Citizens Participation Act. Both measures were carefully written with protection of the individual — the “little guy” — in mind. They’re designed to give a David a fighting chance if he finds himself in a legal duel with a Goliath.
Unfortunately, the Texas Citizens Participation Act is under attack once again. The Legislature is being lobbied fiercely by well-heeled business interests and law firms who want the law either repealed or gutted. On Wednesday the Texas House Committee on Judiciary and Civil Jurisprudence will conduct a hearing to consider whether to gut the TCPA or stand up for a good law that's been giving David a fair shot since legislators passed it 13 years ago.
It appears that Committee Chairman Jeff Leach, R-Plano, who has taken aim at the TCPA over the last several legislative sessions, wants to make sure Goliath’s side gets multiple shots at David. The panel of witnesses Leach invited to testify at his Wednesday hearing includes three witnesses from business and legal interests who have been opposed to the TCPA and one lonely First Amendment attorney.
Ironically, that same First Amendment attorney is also representing Leach in a lawsuit in which Leach is accused of defamation, and Leach has used the TCPA as part of his defense. It seems that even the chair of one of the most powerful committees in the Texas House finds himself feeling like David at times.
When they were omitted from Leach's invitation list, at least eight organizations who support the TCPA requested the opportunity to testify. They were all turned down. Among those denied the opportunity to testify are Texas Right to Life, the Young Republicans of Texas, the General Counsel for the Tarrant County Republican Party and the Protect Free Speech Coalition.
Regardless of his political persuasion, few things are more dangerous to a David than a defamation lawsuit filed against him by an angry Goliath with deep pockets. David may have the truth, the law and the man upstairs on his side, but Goliath can afford an army of lawyers to fight all the way to the Supreme Court. In the process, he can be bled to death financially from the thousand cuts of discovery and depositions that come with a lawsuit.
If he can get the court to grant a motion to dismiss the suit, David is off the hook. The odds of David winning a motion to dismiss a nuisance suit are higher in an appeals court than they are at the local trial court level, however. Without the current stay in the TCPA, David would have to pay lawyers to appeal his denied motion while simultaneously paying lawyers to handle the discovery and deposition tasks that are necessary before trial. With the TCPA in place, the discovery and depositions come to a halt until the appeals related to the motion are exhausted. This makes it faster and less expensive for David to win, which is why the angry plaintiffs who sue their Davids don’t like the law.
Here’s a fringe benefit that often goes unmentioned but should not be: The dismissal of a groundless suit not only helps the defendant, but removes a case from the perennially overcrowded court docket. That makes it a win not just for David, but for judges and taxpayers.
The bottom line: The TCPA protects Texans from lawsuits designed to chill their First Amendment rights. It makes our court system more efficient. And most importantly, it assures that while free speech may not always be free, it should never be something that the Davids among us – which is most of us – cannot afford.
The Texas House Committee on the Judiciary and Civil Jurisprudence would do well to remember that. So would the entire Texas House, the entire Texas Senate and the Governor of Texas.
