Dear Chairman Leach and Members of the Committee,

My name is JT Morris. I live in New Braunfels, Texas, and I’m a senior attorney at the Foundation for Individual Rights and Expression (FIRE). FIRE is a non-partisan, non-profit dedicated to defending the free speech rights of all Americans. We’re also a member of the Protect Free Speech Coalition, a broad coalition of nonprofits, news outlets, and other organizations that are united by our support for the Texas Citizens Participation Act (TCPA). The TCPA protects Texans’ access to justice by deterring frivolous lawsuits, known as SLAPPs, that aim to silence our citizens. On behalf of FIRE and the Protect Free Speech Coalition, I write to stress the importance of the TCPA for protecting the free speech rights of Texans and to urge against any effort to weaken it.

Let me be clear: The TCPA’s benefits to public participation are real, not hypothetical. In my experience defending the free expression of Texans, I have seen the TCPA empower many people to defend their protected expression against SLAPPs and threatened SLAPPs – including anonymous school board critics, whistleblowers at assisted living facilities, concerned consumers, community watchdogs, critics of domestic abuse, participants in historical debates, and investigative journalists. Without the TCPA’s protections, most of these speakers would have self-censored, as they lacked the resources to hire an attorney for prolonged litigation. Crucial to this was the TCPA’s stay on an interlocutory appeal, which enabled several of these speakers to get an appellate reversal, without going broke during the proceedings, after a trial court erred in denying their TCPA motion to dismiss.

Our nation’s Founders knew well the danger of government control over who is allowed to speak and who is not. That’s why they crafted the First Amendment to shield speakers from government retribution. Yet while the First Amendment continues to guard against direct government censorship, the rich and powerful can still weaponize the government to silence their critics.

They do this by filing strategic lawsuits against public participation — SLAPPs, for short. Even though these lawsuits are legally meritless, they force someone exercising their expressive freedoms on public issues into a near-impossible choice. The defendant can spend thousands of dollars hiring an attorney to fight the baseless lawsuit, or they can shut up and settle the case. For most Texans, hiring an attorney risks financial ruin, making self censorship the rational choice, even though their expression is constitutionally protected. By deterring vital expression about the government, the rich and powerful, and other important public issues, SLAPPs don’t just threaten the rights of the defendant. SLAPPs also intrude on the public’s right to hear the defendant’s point of view. They challenge our commitment to freedom of expression and an informed citizenry. And they erode the sacred American values that everyone has the right to speak their mind and petition their government, and we resolve our differences by a civil exchange of ideas, not by coercion or force. 

In recognition of this problem, many states have passed laws to protect the right to free speech by taking the teeth out of SLAPPs. Texas did so in 2011 when it enacted the TCPA. The TCPA allows Texans named in lawsuits to secure quick dismissals from state courts if the claim against them is based on their exercise of First Amendment rights, while still allowing plaintiffs who can demonstrate they have meritorious claims to proceed. The Act lets a speaker facing a bogus suit to file an early motion to dismiss and essentially ask the judge to check: Are the claims legitimate, or is the plaintiff just trying to shut their critic up? If it’s the latter, the court can grant a speedy dismissal instead of putting the defendant through months or years of costly court procedure.

If the judge rejects a defendant’s anti-SLAPP motion, the TCPA allows for an immediate appeal, and the proceedings at the trial court are paused while the appeal is heard. These features are key to ensuring that victims of SLAPPs can avoid ruinous legal feesby fighting on two fronts – the appeals and trial courts – when a trial court erroneously rejects their motion to dismiss.

Another key feature of TCPA is fee-shifting: people who bring SLAPPs have to pay the defendant’s legal fees if a case is dismissed under TCPA.

In sum, the TCPA changes the calculus for defendants sued for constitutionally protected expression: instead of settling, they can afford to defend their rights. And the TCPA deters plaintiffs from filing SLAPPs in the first place because they can’t force the defendant through years of costly litigation, and if they try, they risk being forced to pay the defendant’s legal bills.

Meanwhile, the public also benefits from the TCPA protecting our American right to speak out and from a court system that isn’t wasting the public’s time and the taxpayers’ money adjudicating frivolous cases. At the same time, the meritorious cases are able to proceed through the judicial system. The TCPA strikes a careful balance that deters SLAPPs while protecting access to justice through the courts. We strongly urge you to resist any effort to upset this balance by weakening the TCPA’s current protections.

Respectfully submitted,

JT Morris

Supervising Senior Attorney

Foundation for Individual Rights and Expression

Chairman and members of the House Committee on Judiciary and Civil Jurisprudence:

The Institute for Justice submits these comments on the Texas Citizens Participation Act
(TCPA). In short, any attempt to weaken the TCPA’s core protections for Texans’ free
expression and petitioning—both substantive and procedural—under the guise of the
TCPA’s alleged “misuse” is misguided and dangerous for Texans.

At the outset we must establish why the TCPA exists. Strategic Lawsuits Against Public
Participation (SLAPP) are a way for individuals and companies, often who do business
with the government, to silence their critics using costly lawsuits. Before the TCPA was
enacted such lawsuits were pervasive in Texas. The pattern was the same: politically
connected insiders file lawsuits against their critics in order to bend the power of our
court system to silence them—by dragging SLAPP targets through costly litigation and
discovery until the critics go silent or run out of money. And the damage these lawsuits

caused Texans spanned the ideological spectrum. See, e.g, https://ij.org/ll/bulldozed-
texas-developer-seeks-to-bulldoze-property-rights-free-speech/.

In response, the Legislature passed, and the Governor signed, the TCPA. It guarantees
vigorous protections for Texans that weigh in on matters of public concern via speech,
association, petitioning, et al. How? By providing (1) a wide range of coverage; and (2)
meaningful tools to prevent frivolous lawsuits. The TCPA creates a legal procedure
allowing SLAPP targets to seek dismissal (and to appeal the refusal to dismiss), a SLAPP
suit before any discovery (e.g., depositions) begins. Because after discovery begins those
filing a SLAPP suit have achieved their goal of larding up legal costs on their targets.
Notably, the appellate process provides review of a trial court’s decision, and that protects
SLAPP targets just as it protects those that file meritorious lawsuits.

But at the heart of the TCPA is a stay of proceedings that remains in place until any
appeal has run its course. And that is the point. It is Texas law—both when the TCPA
was first enacted and again after the Legislature amended it a decade later following a
comprehensive review. The TCPA works as intended because it elevates protections for
Texans as the default setting, but still allows meritorious lawsuits to proceed.

Recently, in 2021 and 2023, politically connected insiders have complained that the
TCPA is stifling their ability to use Texas courts as they see fit. Such complaints ring
hollow; often grounded in specific litigation and the way lawyers maneuvered using the
Texas Rules of Civil Procedure. That’s not a sound basis for making policy, let alone to
justify weakening the statutory architecture of the TCPA.

These are no issues with the TCPA. But there are red flags for those relying on the
TCPA’s protections. Why? Because politically connected insiders are targeting the
TCPA’s core protection – the stay. Lawmakers need not go along.

Arif Panju
Managing Attorney, Texas Office
Institute for Justice

Dear Committee Members:

I had requested to appear before this committee to talk about my experience as a SLAPP victim
because I think it is important for lawmakers to understand the vital nature of preserving the
Texas Citizens Participation Act.

I am a longtime journalist who currently hosts a nationally syndicated show and podcast entitled,
The Ben Ferguson Show, and I also co-host a podcast, with U.S. Senator Ted Cruz entitled,
The Verdict. I am extremely concerned that the Texas Legislature is considering misguided
efforts to modify the Texas Citizens Participation Act – specifically to cow tow to well-healed
business interests who enjoy using the court system to silence opposing viewpoints or
investigative reporting – while (perhaps inadvertently) harming voices across the political
spectrum, including conservative voices like mine.

In 2016, I was sued – along with several other conservative commentators, including Ben
Shapiro, Glenn Beck, and others – in a highly charged political case for our reporting on a boy
who had brought a device to school that looked like a bomb and the ensuing actions taken by
the school district to address the situation. Everything that we said was factually true, and yet,
we were all drug through the court system in an attempt to silence our voices and shake down a
settlement from our employers. We didn’t fall for the bait and were able to use the TCPA to – in
my case – get the case dismissed against me within 3 months. My co-defendants, however,
were not so fortunate, and they ended up in protracted litigation, though the appeals process for
more than 2 years. If they, or I, did not have the benefit of the stay of litigation while the case
was taken up on appeal, the results would have been disastrous to our ability to speak freely, to
our news organizations’ ability to conduct business, and to the efficiencies of the court system.

It is also worth noting that I was sued personally in this lawsuit – a common tactic of SLAPP
filers – so as to cause a divide between employer/employee relationships and to strike fear in
the heart of the speaker so that they will self-censor. The harm these lawsuits impose on
everyday citizens, like myself, is profound. The TCPA’s protections are essential to free speech
rights in Texas.

I respectfully urge you to preserve this law.
Please do not hesitate to contact me, if I can provide any further assistance.

Ben Ferguson

Dear Committee Members:

I am writing to urge you to preserve the Texas Citizens Participation Act, also known as Texas’
anti-SLAPP law, which provides essential protections for free speech in Texas. As a longtime investigative
journalist in Texas who has been the subject of a baseless and costly lawsuit, I have experienced
firsthand the damaging, and chilling, nature of a frivolous lawsuit.

I have been an investigative reporter in Texas for nearly two decades, first for the Austin
American-Statesman and currently for the ProPublica/Texas Tribune Investigative Unit. My reporting has
brought about important change. A story I did about failures inside a Department of Veterans Affairs brain
research program led to a Congressional investigation. After the Uvalde school shooting in 2022, my
reporting found that district clerks across the state were not reporting juvenile mental health commitments
to the Texas Department of Public Safety for inclusion in a federal firearm background database, as a
2007 law had intended. A year later, Texas lawmakers plugged that loophole. ProPublica and The Texas
Tribune have received some of the highest awards in journalism; ProPublica has received seven Pulitzer
Prizes, and my colleagues on the ProPublica/Texas Tribune Investigative Unit recently won the Collier
Prize for State Government Accountability for coverage of law enforcement failures in response to the
Uvalde shooting.

In 2020, at the height of the COVID-19 pandemic, our ProPublica/Texas Tribune Investigative Unit began
looking into the relationship between leaders in Hays County and a healthcare company called MRG
Medical, which was pitching its telehealth services and access to another company’s COVID antibody
tests. Our reporting detailed how local leaders took steps to promote MRG founder Kyle Hayungs, his
business interests and the antibody tests, whose accuracy had been called into question. The
investigation found the officials did not disclose to either the public or their fellow elected officials the
extent of their relationships with Hayungs.

The story was of deep public interest at a time when local governments were struggling to provide
adequate COVID testing and spending large amounts of taxpayer dollars on COVID solutions.
Two years after our story ran – and a full year after the statute of limitations on libel suits in Texas had
expired – MRG filed a lawsuit alleging the story included statements or information that defamed the
company and Hayungs and interfered with current and prospective contracts. MRG also alleged a
baseless conspiracy theory that our article had been orchestrated by J. Bruce Bugg, Jr. Not only was the
suit filed well beyond the libel law’s one-year window, but MRG was unable to identify a single inaccurate
statement in our article, which relied on dozens of interviews and a review of hundreds of emails, audio
recordings and social media posts.

The trial court nevertheless denied our motion to dismiss under the anti-SLAPP law without any analysis.
Thanks to the TCPA, we were able to immediately appeal that decision. The appeals court unanimously
ruled in our favor and dismissed the case as untimely, without the need to hear oral argument. The
plaintiff has now filed a petition for review with the Texas Supreme Court, which is still pending.

Without the TCPA and its stay of trial court proceedings during appeal, we would have had to proceed to
the full discovery phase of the case, which likely would have dragged on for many months and cost
hundreds of thousands of dollars, if not more. It would also have cost many hours of my time and my
colleagues’ time defending a frivolous lawsuit instead of reporting news to the public.

In fact, that’s often the goal behind these lawsuits — the process itself is the punishment — to force
newsrooms, which have increasingly limited resources, to spend their time and money defending against
meritless claims, and to further chill speech.
These cases also take a personal toll on the journalists involved. ProPublica Managing Editor Charles
Ornstein recently prevailed in a similar lawsuit that dragged on for six years before a Texas appeals court
dismissed the case, ruling that ProPublica’s investigation into a prominent Houston heart doctor provided
a “fair, true, and impartial account” of accusations against him.

The case required reporters to spend dozens of hours gathering materials and working with lawyers, and
in Charlie’s case resulted in a denied mortgage because he truthfully checked a box indicating that he
was a defendant in a lawsuit.

“The litigation wore on me,” Charlie wrote. “Not only did I have to scramble to get a new mortgage lender,
but I also lost sleep, had trouble focusing and felt a pit in my stomach any time I received a note from our
lawyers.”

That lawsuit also cost hundreds of thousands of dollars to defend. Thanks to the TCPA, however, we
were entitled to recover our reasonable attorney fees and costs spent defending against the baseless
lawsuit. This is a critical protection, given the enormous costs of litigation. But while ProPublica reached a
settlement with the plaintiff in which he paid a portion of our attorney fees, our insurance rates have
skyrocketed, and all of our new cases carry a much higher deductible.

Nevertheless, the protections of the TCPA have been—and continue to be—critical to safeguarding free
speech and fact-based reporting in the public interest. I respectfully urge you to preserve this law.
Please do not hesitate to contact me at jeremy.schwartz@propublica.org, if I can provide any further
assistance.

Sincerely,

Jeremy Schwartz
Reporter
ProPublica & Texas Tribune

My name is Tony McDonald, a civil rights attorney serving the conservative grassroots in Texas,
and General Counsel for the Tarrant County Republican Party. I’ve devoted my law practice to
representing grassroots Texans who want to engage in politics freely. I urge you to preserve the
Texas Citizens Participation Act (TCPA).

The Importance of the TCPA:
The TCPA was enacted to protect Texans from frivolous lawsuits that silence and intimidate
them. It is one of the most robust anti-SLAPP statutes, ensuring that Texans aren’t bullied by
wealthy litigants.

In my practice, I’ve seen its importance firsthand. A recent case involved young activists sued
for calling themselves “Young Republicans.” The TCPA enabled me to defend them against a
lawsuit they couldn’t afford, ensuring they weren’t silenced simply for engaging in political
discourse.

Efforts to Undermine the TCPA:
It’s troubling that wealthy individuals like Brint Ryan and Texans for Lawsuit Reform are invited
to this committee to advocate for measures that will dismantle the TCPA while everyday Texans
are limited to 3000 characters. The purpose of the TCPA is to protect the little guy against the
wealthy and the powerful who abuse the system. You should be hearing more from those who
depend on the TCPA for protection, not those who find its provisions a burden to their lawsuits.

Maintaining the Integrity of the Appellate Review Process:
A vital part of the TCPA is the right to interlocutory appeal, which allows immediate review of a
trial court’s decision. Without it, defendants could be dragged into years of costly litigation, even
if the trial court is wrong. I’ve argued TCPA motions on jurisdictional grounds that would have
been decided differently in different parts of the state. These motions would have been
meaningless if there was no appellate review.

Speeding Up the Appeals Process:
While concerns about the speed of appeals are valid, the solution isn’t to remove protections.
Instead, the Legislature should expedite appeals by providing courts with more resources and
clarifying the right to emergency relief and expedited briefings.

Why the TCPA Must Be Preserved Intact:
The TCPA levels the playing field, ensuring Texans can engage in public discourse without fear
of legal intimidation. Efforts to weaken it would allow the wealthy to weaponize the legal system
against their critics, silencing free speech. The Legislature must protect the TCPA to safeguard
citizens’ rights.

Tony McDonald
The Law Offices of Tony McDonald

Chairman Leach:

My name is Kevin Krause and I am a reporter with The Dallas Morning News. I am writing to
share with you and your committee my personal experience with Texas’s anti-SLAPP statute and
how it helped me during a fraught period of my professional life during which my mission to
inform the public was under attack. I have twice been sued by individuals who did not wish their
misdeeds to be made public. Their flimsy and frivolous lawsuits were ultimately dismissed
thanks to Texas’ important anti-SLAPP law.

I also want to urge the committee not to make any changes to weaken the anti-SLAPP law,
known as the Texas Citizens Participation Act. Doing so would have a chilling effect on the
integrity and practice of good journalism that informs the public. I hope my story will illustrate
this point.

When my 2016 story ran about a Fort Worth medical company, fraud and waste were endemic in
government insurance programs like Tricare that provide critical health services to members of
the military and their families as well as veterans.

I used civil court records and federal documents among other sources during my exhaustive
reporting on this case to tell a story about the serious allegations against this company and its
related entities. I was careful to be thorough and fair in my reporting. My story said the company
was the subject of a federal investigation into allegations involving an unlawful kickback
scheme. The company’s owners did not contact us after publication to question the story’s
accuracy. Instead, they sued The News and myself personally, asking for $50 million in damages.

Even when the company’s offices were raided by federal agents, the principals continued to
litigate their groundless and frivolous lawsuit.

Had the SLAPP statute not been in place in its current form, I would have had to stop work on
my journalism and spend weeks and months gathering material for the discovery phase of this
litigation, in concert with our attorneys. All of this work would have been a wasted effort. There
was overwhelming evidence that the Fort Worth health care company was indeed under
investigation as I reported.

This episode generated unwarranted and unnecessary stress and anxiety for me given the
uncertainty of a major lawsuit and the initial judicial rulings that went against us.

Most of the key officers of these affiliated companies were subsequently indicted in federal court
in connection with a kickback scheme. All were convicted of felony crimes and sentenced to
prison.

Weakening the important free-speech protections in Texas’s anti-SLAPP statute would give bad
actors the green light to file baseless lawsuits against journalists like me who attempt to expose
their misdeeds for the public’s benefit.

This happened to me a second time when I was sued frivolously by a violent convicted felon
who didn’t want the public to know about his criminal conduct. In 2018, I published a story
about how the man was being prosecuted in federal court for a gun charge after posting rap
videos of himself during which he brandished guns.

The convicted robber sued me and The News for $50 million in 2021 after he got out of prison. A
judge dismissed it, and a state appeals court upheld that decision, but again this took a significant
amount of time, and it was only because of the stay under the current anti-SLAPP law that I was
able to continue to focus on my work as a journalist and bringing to light information about
matters of public concern to the readers of The News.

Without the protections of the anti-SLAPP law, many media companies might choose not to
pursue important stories of abuse, fraud, crime and waste for fear of costly and time-consuming
litigation intended to harass journalists and suppress the truth. Many state and federal civil and
criminal actions are initiated following published reports from media watchdogs. As a result, any
weakening of press freedoms and protections could have a detrimental effect on the public safety
mission of police and prosecutors and compromises the public’s right to information.

Thank you for your consideration.

Sincerely,
Kevin Krause
Federal Reporter
The Dallas Morning News

Dear Chairman Leach:

I am a trial and appellate lawyer with more than 20 years’ experience in litigating
defamation and other free speech cases, including under the Texas Citizens Participation Act
(“TCPA” or “Act”), TEX. CIV. PRAC. & REM. CODE § 27.001 et seq. I write today on behalf of the
Freedom of Information Foundation of Texas (“FOIFT”) and the Texas Association of
Broadcasters (“TAB”). FOIFT is a nonprofit organization that strives to ensure that the public’s
business is conducted in public and to protect the liberties of free speech and press guaranteed by
the First Amendment. TAB is a nonprofit trade association established 70 years ago to represent
the interests of Texas’s 1,200+ free, over-the-air radio and television stations.

We are concerned with recent attacks on the TCPA, which appear to be based on one-sided
(and sometimes misleading) accounts of isolated cases that do not represent how the TCPA
actually works, especially in defamation and First Amendment litigation. Even more concerning
are recent proposals that purport to address TCPA “abuse,” but would actually undermine the Act’s
effectiveness in the cases where its protections are most needed.

It is impossible to overstate the importance of the TCPA in protecting free speech in Texas.
As the Texas Supreme Court recently observed in applying the Act to shield right-to-life advocates
from baseless defamation claims brought by pro-choice activists:

The [TCPA] carries forward the state’s commitment to the free exchange of ideas enshrined in our Texas and United States Constitutions. Aware of the chilling effect that defamation lawsuits have against individuals ill-equipped to finance protracted litigation, the Legislature has armed speakers with tools to seek quick dismissal of meritless suits brought to stop public debate.

Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 369 (Tex. 2023). The Supreme Court
has also recognized the TCPA’s similar purpose in defamation cases against the news media,
describing the Act as a “bulwark” against meritless lawsuits that target reporting on matters of
public concern. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019).

Some critics of the TCPA are now focusing their attack on the automatic stay of trial court
proceedings provided under Section 51.014(b) of the Texas Civil Practice and Remedies Code
during the pendency of a TCPA appeal. The flawed premise of this criticism is that a trial court’s
denial of a TCPA motion to dismiss means that the plaintiff’s claims are meritorious. That is
simply not true. In fact, trial courts’ orders denying TCPA motions to dismiss are regularly
reversed on appeal. Sometimes, the defendant’s ultimate vindication comes in the Texas Supreme
Court, after the trial court has erroneously denied a motion to dismiss and the intermediate
appellate court has erroneously affirmed that denial. In such cases, it can take several years to
finally reach the right result under the TCPA.

For example, in 2019, the Texas Supreme Court unanimously reversed the denial of a
TCPA motion to dismiss that The Dallas Morning News and one of its investigative reporters had
filed in a defamation case brought by a compounding pharmacy and two of its owners. Hall, 579
S.W.3d at 380-81. The claims targeted the newspaper’s reports on a federal criminal investigation.
The plaintiffs insisted that they were not being investigated, stating that they had no knowledge of
any such investigation. The Texas Supreme Court rejected their claim, holding that the
newspaper’s reporting was true and privileged, and recognizing that the plaintiffs’ theory would
“chill First Amendment speech” and “‘would ill serve the public’s interest in government
activities.’” Id. (quoting KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 714 (Tex. 2016)).

For the Texas Supreme Court, the holding in Hall was based on a straightforward
application of established defamation law. But, despite the Supreme Court’s unanimity, the lower
courts had repeatedly reached the opposite conclusion. The trial court had erroneously denied the
defendants’ TCPA motion to dismiss in 2016, and the Second Court of Appeals had erroneously
affirmed the denial. The Second Court of Appeals had even denied the defendants’ motion to
reconsider its erroneous decision.

The Hall case is hardly an anomaly. Just last term, the Texas Supreme Court unanimously
reversed the denial of a small community newspaper’s motion to dismiss in Polk County
Publishing Company v. Coleman, 685 S.W.3d 71 (Tex. 2024). There, too, the trial court and
intermediate appellate court had erroneously ruled for the plaintiff. Id. Similarly, in Lilith Fund,
two trial courts and an intermediate appellate court had erroneously ruled for the plaintiffs before
the Texas Supreme Court unanimously ruled for the defendants. 662 S.W.3d at 360. Losses in the
trial court and in the intermediate appellate court also preceded a broadcaster’s Supreme Court
victory in KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 713 (Tex. 2016). And these are just
the cases that have recently made it to the Texas Supreme Court. The list of defamation cases in which an intermediate appellate court has reversed a trial court’s erroneous denial of a TCPA motion to dismiss, without further review by the Supreme Court, is too long for this letter.

The high rate of reversible error in such cases is understandable. Defamation law is
notoriously complicated, as Texas Supreme Court Justice Jeff Boyd observed in his concurring
opinion in Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 643 (Tex. 2018) (Boyd, J.,
concurring) (noting that “courts and commentators have complained that defamation law is a
‘quagmire,’ lacks ‘clarity and certainty,’ is ‘overly confusing’ and ‘convoluted’”). It is no surprise
that trial courts often get it wrong—or that appellate courts sometimes do, too.

Of course, any defamation plaintiff who wins at the TCPA stage in the trial court is anxious
to proceed with full discovery and, possibly, a trial. It is understandable that they might view any
delay pending the completion of appellate proceedings as inherently unfair, or even abusive. But,
as the plaintiffs in Hall, Coleman, Lilith Fund, and Toledo—as well as numerous other TCPA
cases—can attest, the outcome may end up being very different after the appeal has concluded.
What once might have seemed like unnecessary delay was simply the amount of time necessary to
reach the right result.

With this context, it is clear that any repeal or significant curtailment of the stay pending
appeal will undermine the TCPA’s fundamental purpose and render its protections illusory. The
genius of the TCPA is not only that it facilitates the dismissal of meritless SLAPP claims, but that
it does so while protecting defendants from the burden and cost of discovery while the courts
determine whether the plaintiff’s claims are supportable. Indeed, when the TCPA was enacted in
2011, its proponents noted that the cost of discovery in defamation cases was creating a chilling
effect that made it more difficult for citizens to participate in public debate and for the news media
to keep the citizenry informed. As an example of the problem, they cited a case in which a plaintiff
had sued a television station for reporting on a state investigation into alleged misconduct by a
doctor:

The suit eventually was dismissed, but the television station was forced to pay $100,000 in legal expenses. SLAPP suits chill public debate because they cost money to defend, even if the person being sued was speaking the truth.

Today, the stakes are even higher. Without a stay, the media defendants in Hall could easily
have incurred more than a million dollars in legal fees during discovery, motion practice, and trial
preparation while the case was on appeal—all for claims that the Texas Supreme Court unanimously found to be baseless. The potential chilling effect would be even greater for the small community newspaper in Coleman or the right-to-life advocates in Lilith Fund. The TCPA has been successfully invoked by nonprofit news organizations, freelance journalists, podcasters and talk show hosts, political commentators, independent publications serving minority and immigrant
communities, the Better Business Bureau, consumer reviewers, and numerous others. These
speakers often lack the financial means to spend years litigating in multiple courts against a
wealthy defamation plaintiff who is willing and able to spend millions of dollars prosecuting their
claims. For these speakers, the stay is essential to ensuring that the TCPA continues to achieve its
intended purpose of protecting free speech in Texas and keeping Texas citizens informed on
matters of public concern.

Thank you for your time and consideration.

Sincerely,

Marc A. Fuller

In what is considered a huge win for journalism, the Supreme Court of Texas on Friday
reversed a lower court’s ruling, effectively dismissing a suit filed by Tommy L. Coleman
against Polk County Publishing Company and Valerie Reddell, former editor of the Polk
County Enterprise. The 17-page opinion was written by Justice James D. Blacklock.
Polk County Publishing Company was represented by Thomas S. Leatherbury, Director of
the First Amendment Clinic at SMU Dedman School of Law, and Ryan W. Gertz, a partner in
the Gertz Kelley Law Firm in Beaumont.

“We are grateful for the Court’s opinion. Mr. Coleman’s claims should have been dismissed
long ago. Today’s ruling is a decisive victory for our clients and for publishers and
broadcasters statewide,” Leatherbury said.

“Moreover, the Court struck a blow to the efforts of prosecutors to control or intimidate the
media. The First Amendment implications of this kind of suit are substantial and the law
and justice prevailed. Many thanks to world class defamation lawyer Tom Leatherbury and
to Kelli Barnes for allowing us to represent Polk County Publishing Company,” Gertz said.
Leatherbury is considered an expert in First Amendment law. An appellate lawyer with 40
years of experience in state and federal appeals and trials, he has also regularly
represented traditional and digital publishers and broadcasters in all aspects of media
litigation throughout his career, including libel, privacy and other torts, reporter’s privilege,
newsgathering and access, misappropriation, and breach of contract actions.
In June 2020, the Polk County Enterprise ran a story, written by Reddell, criticizing
Coleman, who at the time was a local assistant district attorney. Most of the article
criticized the Williamson County District Attorney’s Office, where Coleman previously
worked, for its involvement in the infamous wrongful conviction of Michael Morton. Among
the article’s claims about Coleman was the statement that he “assisted with the
prosecution of Michael Morton.”

Coleman sued for defamation in August 2020, claiming that the article’s statement that he
“assisted with the prosecution of Michael Morton” was false and defamatory.
The defendants moved to dismiss the suit under the Texas Citizens Participation Act
(TCPA). The motion made several arguments, including that the challenged statement was
not actionably false. The trial court denied the TCPA motion.

The Court of Appeals affirmed, so the defendants petitioned for review by the Supreme
Court of Texas. The petition was granted, and oral arguments were presented before the
Supreme Court of Texas on Sept. 14.

“This is a victory not only for the Enterprise but for all citizens, because it strengthens the
First Amendment. The court affirmed an important precedent in American jurisprudence –
that the truth is the ultimate defense in a defamation lawsuit. In the final analysis, the
Enterprise story was truthful, and the high court said clearly that legal quibbling over the wording of a story can’t change the truth,” Donnis Baggett, executive vice president of the Texas Press Association, said.

“When the First Amendment is strengthened, the citizen is the real winner. Citizens depend
on journalists to inform them about the actions of their government officials. Without a free
press there can be little accountability for those officials,” Baggett said. Polk County Enterprise Publisher Kelli Barnes agreed.

“The Polk County Enterprise, part of the Polk County Publishing Company group of newspapers, is dedicated to covering local news, delivered by trained professionals. We are thankful this case is behind us, of course, but it is just another day in the newsroom. We will continue, as always, to bring quality community journalism to our readers,” Barnes said.

Coleman must pay newspaper, former editor for lawsuit gone awry

By: Emily Vanks Wooten

Chairman Leach, Vice Chairman Johnson, and Committee Members:
On behalf of Texas Press Association and its more than 350 members, I write to express concern regarding possible changes to Texas’s anti-SLAPP law. All of TPA’s members—from small-town weekly newspapers to large metropolitan dailies—rely on the Texas Citizens Participation Act to discourage and dismiss meritless lawsuits. These lawsuits are frequently filed to silence
and harass journalists who report on matters of public concern and to subvert the protections of
the First Amendment.

SLAPP lawsuits not only clog the court system and chill free speech, they exact a financial,
professional, and emotional toll on their victims. Several SLAPP victims have written about their experiences as such. See, e.g., https://www.cjr.org/tow_center/op-ed-scorched-earth-litigation-
the-call-for-anti-slapp-may-save-you.php. SLAPP victims face the prospect of financial ruin from plaintiffs who seek to intimidate them with million-dollar claims. Individuals facing SLAPP suits face significant financial repercussions, simply because they are defendants facing
the possibility of such a judgment.

For media outlets, SLAPP litigation can put a small-town weekly newspaper out of business or
inflict cuts into profit margins of larger dailies that are already paper-thin. The longer a meritless
case winds through the court system, the more likely it is to destroy or seriously impair the
ability of newspapers to aggressively cover their communities.

This problem isn’t limited to newspapers. In 2018, the nonprofit outlet ProPublica reported on a
pioneering Houston surgeon who was accused of violating federal research rules and skirting
ethical guidelines. When the surgeon filed a SLAPP suit against the reporters, it led to a six-year
legal saga that only recently concluded with a ruling that ProPublica’s reporting was a “fair, true
and impartial account” of the allegations against the surgeon. In other words, the case was
meritless all along. While six years is unusually long for a SLAPP case, the lawsuit would have
dragged on much longer—and drained even more resources—if not for the TCPA. Further, there
were two interlocutory appeals in this case which because the underlying case was stayed did not
unnecessarily further clog up the court system with parallel litigation in both the trial and
appellate court that would have occurred without the stay. Still, however, the case took its toll on
the individual journalist, Pulitzer Prize winning journalist Charlie Ornstein, who wrote about
being denied a mortgage as a result of the pending litigation. https://www.propublica.org/article/bud-frazier-dismissed-libel-lawsuit.

In some cases, the TCPA actually serves as a deterrent against filing of suits to begin with, and
we have seen this with some of our members who have been threatened with suit but after

invoking the protections under the TCPA no lawsuit was filed. When a lawsuit is filed, in most
cases, the TCPA allows SLAPP victims to obtain a quick dismissal—sometimes within months
of being filed. The automatic stay provision in the TCPA ensures that SLAPP victims can avoid
additional litigation costs—including expensive and invasive discovery—while a ruling on the
SLAPP motion is appealed. For instance, when the Dallas Morning News on two different
occasions was on the receiving end of SLAPP suits, multiple appeals ensued, and it was only
because of the TCPA that the newspaper did not have to fight on multiple fronts simultaneously,
needlessly incurring expenses and detracting from their ability to serve the public by delivering
the news of the day. In both instances, the newspaper ultimately prevailed, and the lawsuits were
deemed to be meritless.

Removing the TCPA’s automatic stay provision would dramatically increase the litigation costs
for SLAPP victims, who would be forced to continue litigating in the trial court even as their
TCPA motion is being considered on appeal. Removing the stay would also sow confusion in the
court system, since the trial and appellate courts would both be ruling on overlapping issues in
the same case, at the same time. In the words of former Chief Justice of the Texas Supreme
Court Wallace Jefferson, this change would “create a two-tier system in which parties, in certain
instances, would be forced to litigate their cases simultaneously at the trial and appellate courts,
which will cause significant perils for both litigants and courts.” See Chief Justice Wallace
Jefferson’s written testimony from 88th Legislative session attached hereto.

These changes would not only affect SLAPP victims, they would have far-reaching effects on
the entire media industry in Texas. Insurance companies who offer media liability insurance base
their premiums largely on the cost of litigation, which typically outweighs the actual cost of any
judgment or settlement in media cases. Weakening the TCPA to allow for more litigation costs
will drive up these media-liability premiums and could prompt some insurance companies to
leave the Texas market altogether. (See Louis Scimecca, Media Liability Advisory Services,
LLC written testimony from 88th Legislative session.)

Newspapers are just one industry that will be impacted by these proposed changes. TPA is a
proud member of the Protect Free Speech Coalition, which brings together hundreds of
organizations and individuals to help legislators understand the broader consequences of
weakening Texas’ anti-SLAPP protections. The coalition spans a wide range of interests and
viewpoints, including Americans for Prosperity-Texas, Better Business Bureau serving Texas,
Center for Biological Diversity, Institute for Justice, League of Women Voters, National Right to
Life, Electronic Frontier Foundation, and more.

We stand ready to work with the Committee and welcome any questions you may have about
how changes to the TCPA would affect newspapers and the broader media industry.

Sincerely,

Mike Hodgens & Donnis Baggett

_______________________________________

Dear Chairman Leach, Vice Chairman Johnson and House Judiciary and Civil Jurisprudence committee members,

I was Chief Justice of the Supreme Court of Texas and served on that Court from 2001 to
2013. I am also currently Treasurer of the American Law Institute.

I am writing to express my concerns about the unintended consequences passage of SB 896
would inflict on the court system. As I see it, the bill would create a two-tier system in which
parties, in certain instances, would be forced to litigate their cases simultaneously at the trial and
appellate courts, which will cause significant perils for both litigants and courts.

Since its passage in 2011, the Texas Citizens Participation Act has been the subject of
appeals to the Texas Supreme Court about whether the Act was timely asserted and whether an
exemption to it applies. Those cases took nearly a decade before the Supreme Court gave definitive
answers. That Court ultimately concluded that the trial courts in those cases had erred in finding
the TCPA motion untimely or subject to an exemption. See, e.g., Kinder Morgan SACROC, LP v.
Scurry Cnty, 622 S.W.3d 835 (Tex. 2021), Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021),
Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018).

In each case, if SB 896 had been the law and the stay lifted during the appeals, the parties
and the courts would have expended enormous resources only for an appellate court later to decide
that the case lacked merit in the first place. Additionally, the litigants would have needlessly spent
exponentially more in litigation costs on discovery, trials, and appeals that were all for naught.

SB 896 is troubling in light of the Legislature’s extensive modifications to the TCPA in
2019, including the addition of eight new exemptions. The courts will grapple with the validity of
these exemptions for decades. A much more efficient result would obtain if litigants were given
the right to appeal a trial court’s decision immediately This is why, in my view, the Legislature
and this Court have preserved the right to defend against invalid barriers to the Act while staying
the trial courts’ wasteful prosecution of them. In short, SB 896 could strain an already overburdened court system, curtail the necessary checks and balances provided by Texas appellate courts, and cause needless increases in litigation costs for Texas citizens.

Sincerely, 

Wallace B. Jefferson 

_______________________________________

Dear Chairman Leach,

I am writing to express my concern with proposed legislation, SB 896, and the adverse economic impact
this legislation could have on the affordability and availability of Media Liability insurance if such
amendments are adopted.

I spent my thirty-nine-year career in the insurance business underwriting, marketing and managing
business for five insurance companies until I retired in 2020. My first five years were spent in the
general Property/Casualty Commercial Lines sector. The next thirty-four years I dedicated my career to
the specialized area of Media Liability insurance which provides coverage for claims arising from
defamation, infringement of copyright or trademark, invasion of privacy, errors and omissions, and
related torts.

Media Liability insurance is known as the professional liability/errors & omissions coverage for media
businesses including publishers, broadcasters, advertising agencies, internet/online publishers and
others engaged in communications to the public. It is akin to Lawyers Malpractice insurance for
attorneys or Medical Malpractice insurance for physicians.

Currently, I am Principal of Media Liability Advisory Services, LLC which provides Media Liability
consulting services to insurance companies, insurance brokers and insurance consumers.

Anti-SLAPP statutes serve a much-needed role with respect to the intersection of Media Liability
insurance and the First Amendment. When implemented properly, Anti-SLAPP statues are tools that
support the free flow of speech and distribution of information by cutting short lawsuits brought by
individuals or entities intent on quashing opposing views by filing meritless legal actions, thereby
subjecting defendants to unnecessary, and often onerous, legal costs.

Media Liability insurance is offered by only a limited number of insurance companies when compared to
the thousands of insurance companies which offer commercial lines, personal lines, accident & health,
and life insurance coverages, (i.e. non-specialized insurance products). As such, the Media Liability
underwriting process and the handling of claims is highly specialized.

The underwriting process, (i.e. the process of accepting or rejecting a risk, and setting the terms,
conditions and premium under which a risk will be accepted,) involves an analysis of many factors,
including but not limited to, editorial experience, type/gist of content, claim history and legal climate, to
name a few.

Media Liability claims can be very expensive. Covered costs are incurred at the trial court level, as well
as the appellate level. In the majority of claims it is only legal costs that are incurred, without any
judgment or settlement. On the whole, legal costs for an average claim generally far outweigh the cost
of any judgment or settlement.

Anti-SLAPP statutes allow for the quick disposition of frivolous and meritless claims, prevents the
wealthy, influential and others from “bullying” those that have opposing views with unnecessary and
costly litigation, and aids in keeping already high legal costs incurred in defending such claims in
check. SB 896 will only serve to increase the cost of litigation because by removing the automatic stay
at the trial level, now two sets of litigation will run simultaneously, one at the trial level for the
underlying claim and the other incurred at the appellate level as the parties prosecute or oppose the
ensuing appeal of the trial court’s ruling on the Anti-SLAPP motion.

Insurance companies collect data on their various product portfolios and evaluate the data in a host of
micro and macro ways as part of their underwriting, claims and actuarial functions. Because legal
expense is a key component of Media Liability claims, insurance companies pay particular attention to
claim trends and legal costs and litigation climate on state-by-state basis. The laws of states and
associated trends and legal costs resulting from such laws typically place a state in category referred to
as a “Favorable Jurisdiction” or “Unfavorable Jurisdiction” which is a component utilized to increase or
decrease premium when determining the final premium for a risk. It also can possibly determine
whether an insurance product continues to be available in a particular jurisdiction.

The adoption of SB 896 could result in two primary negative outcomes for Texas insurance
consumers. First, over time, once the limited number of insurance companies that offer Media Liability
insurance notice the increased cost of legal expense in Texas as a result of SB 896, the premiums
charged to Texas policy holders will likely increase. On a worst case scenario, insurance companies
could withdraw from writing Media Liability insurance in Texas fearing they will not be able to offer their
products at a fair price in order to make a profit because of the additional legal expense incurred due to
SB 896.

Respectfully, for the reasons described above, I ask that the Texas Legislature reject SB 896.
Sincerely,
Louis Scimecca
Principal
Media Liability Advisory Services, LLC

Dear Chairman Leach and Members of the Committee,

My name is JT Morris. I live in New Braunfels, Texas, and I’m a senior attorney at the Foundation for Individual Rights and Expression (FIRE). FIRE is a non-partisan, non-profit dedicated to defending the free speech rights of all Americans. We’re also a member of the Protect Free Speech Coalition, a broad coalition of nonprofits, news outlets, and other organizations that are united by our support for the Texas Citizens Participation Act (TCPA). The TCPA protects Texans’ access to justice by deterring frivolous lawsuits, known as SLAPPs, that aim to silence our citizens. On behalf of FIRE and the Protect Free Speech Coalition, I write to stress the importance of the TCPA for protecting the free speech rights of Texans and to urge against any effort to weaken it.

Let me be clear: The TCPA’s benefits to public participation are real, not hypothetical. In my experience defending the free expression of Texans, I have seen the TCPA empower many people to defend their protected expression against SLAPPs and threatened SLAPPs – including anonymous school board critics, whistleblowers at assisted living facilities, concerned consumers, community watchdogs, critics of domestic abuse, participants in historical debates, and investigative journalists. Without the TCPA’s protections, most of these speakers would have self-censored, as they lacked the resources to hire an attorney for prolonged litigation. Crucial to this was the TCPA’s stay on an interlocutory appeal, which enabled several of these speakers to get an appellate reversal, without going broke during the proceedings, after a trial court erred in denying their TCPA motion to dismiss.

Our nation’s Founders knew well the danger of government control over who is allowed to speak and who is not. That’s why they crafted the First Amendment to shield speakers from government retribution. Yet while the First Amendment continues to guard against direct government censorship, the rich and powerful can still weaponize the government to silence their critics.

They do this by filing strategic lawsuits against public participation — SLAPPs, for short. Even though these lawsuits are legally meritless, they force someone exercising their expressive freedoms on public issues into a near-impossible choice. The defendant can spend thousands of dollars hiring an attorney to fight the baseless lawsuit, or they can shut up and settle the case. For most Texans, hiring an attorney risks financial ruin, making self censorship the rational choice, even though their expression is constitutionally protected. By deterring vital expression about the government, the rich and powerful, and other important public issues, SLAPPs don’t just threaten the rights of the defendant. SLAPPs also intrude on the public’s right to hear the defendant’s point of view. They challenge our commitment to freedom of expression and an informed citizenry. And they erode the sacred American values that everyone has the right to speak their mind and petition their government, and we resolve our differences by a civil exchange of ideas, not by coercion or force. 

In recognition of this problem, many states have passed laws to protect the right to free speech by taking the teeth out of SLAPPs. Texas did so in 2011 when it enacted the TCPA. The TCPA allows Texans named in lawsuits to secure quick dismissals from state courts if the claim against them is based on their exercise of First Amendment rights, while still allowing plaintiffs who can demonstrate they have meritorious claims to proceed. The Act lets a speaker facing a bogus suit to file an early motion to dismiss and essentially ask the judge to check: Are the claims legitimate, or is the plaintiff just trying to shut their critic up? If it’s the latter, the court can grant a speedy dismissal instead of putting the defendant through months or years of costly court procedure.

If the judge rejects a defendant’s anti-SLAPP motion, the TCPA allows for an immediate appeal, and the proceedings at the trial court are paused while the appeal is heard. These features are key to ensuring that victims of SLAPPs can avoid ruinous legal feesby fighting on two fronts – the appeals and trial courts – when a trial court erroneously rejects their motion to dismiss.

Another key feature of TCPA is fee-shifting: people who bring SLAPPs have to pay the defendant’s legal fees if a case is dismissed under TCPA.

In sum, the TCPA changes the calculus for defendants sued for constitutionally protected expression: instead of settling, they can afford to defend their rights. And the TCPA deters plaintiffs from filing SLAPPs in the first place because they can’t force the defendant through years of costly litigation, and if they try, they risk being forced to pay the defendant’s legal bills.

Meanwhile, the public also benefits from the TCPA protecting our American right to speak out and from a court system that isn’t wasting the public’s time and the taxpayers’ money adjudicating frivolous cases. At the same time, the meritorious cases are able to proceed through the judicial system. The TCPA strikes a careful balance that deters SLAPPs while protecting access to justice through the courts. We strongly urge you to resist any effort to upset this balance by weakening the TCPA’s current protections.

Respectfully submitted,

JT Morris

Supervising Senior Attorney

Foundation for Individual Rights and Expression

Chairman and members of the House Committee on Judiciary and Civil Jurisprudence:

The Institute for Justice submits these comments on the Texas Citizens Participation Act
(TCPA). In short, any attempt to weaken the TCPA’s core protections for Texans’ free
expression and petitioning—both substantive and procedural—under the guise of the
TCPA’s alleged “misuse” is misguided and dangerous for Texans.

At the outset we must establish why the TCPA exists. Strategic Lawsuits Against Public
Participation (SLAPP) are a way for individuals and companies, often who do business
with the government, to silence their critics using costly lawsuits. Before the TCPA was
enacted such lawsuits were pervasive in Texas. The pattern was the same: politically
connected insiders file lawsuits against their critics in order to bend the power of our
court system to silence them—by dragging SLAPP targets through costly litigation and
discovery until the critics go silent or run out of money. And the damage these lawsuits

caused Texans spanned the ideological spectrum. See, e.g, https://ij.org/ll/bulldozed-
texas-developer-seeks-to-bulldoze-property-rights-free-speech/.

In response, the Legislature passed, and the Governor signed, the TCPA. It guarantees
vigorous protections for Texans that weigh in on matters of public concern via speech,
association, petitioning, et al. How? By providing (1) a wide range of coverage; and (2)
meaningful tools to prevent frivolous lawsuits. The TCPA creates a legal procedure
allowing SLAPP targets to seek dismissal (and to appeal the refusal to dismiss), a SLAPP
suit before any discovery (e.g., depositions) begins. Because after discovery begins those
filing a SLAPP suit have achieved their goal of larding up legal costs on their targets.
Notably, the appellate process provides review of a trial court’s decision, and that protects
SLAPP targets just as it protects those that file meritorious lawsuits.

But at the heart of the TCPA is a stay of proceedings that remains in place until any
appeal has run its course. And that is the point. It is Texas law—both when the TCPA
was first enacted and again after the Legislature amended it a decade later following a
comprehensive review. The TCPA works as intended because it elevates protections for
Texans as the default setting, but still allows meritorious lawsuits to proceed.

Recently, in 2021 and 2023, politically connected insiders have complained that the
TCPA is stifling their ability to use Texas courts as they see fit. Such complaints ring
hollow; often grounded in specific litigation and the way lawyers maneuvered using the
Texas Rules of Civil Procedure. That’s not a sound basis for making policy, let alone to
justify weakening the statutory architecture of the TCPA.

These are no issues with the TCPA. But there are red flags for those relying on the
TCPA’s protections. Why? Because politically connected insiders are targeting the
TCPA’s core protection – the stay. Lawmakers need not go along.

Arif Panju
Managing Attorney, Texas Office
Institute for Justice

Dear Committee Members:

I had requested to appear before this committee to talk about my experience as a SLAPP victim
because I think it is important for lawmakers to understand the vital nature of preserving the
Texas Citizens Participation Act.

I am a longtime journalist who currently hosts a nationally syndicated show and podcast entitled,
The Ben Ferguson Show, and I also co-host a podcast, with U.S. Senator Ted Cruz entitled,
The Verdict. I am extremely concerned that the Texas Legislature is considering misguided
efforts to modify the Texas Citizens Participation Act – specifically to cow tow to well-healed
business interests who enjoy using the court system to silence opposing viewpoints or
investigative reporting – while (perhaps inadvertently) harming voices across the political
spectrum, including conservative voices like mine.

In 2016, I was sued – along with several other conservative commentators, including Ben
Shapiro, Glenn Beck, and others – in a highly charged political case for our reporting on a boy
who had brought a device to school that looked like a bomb and the ensuing actions taken by
the school district to address the situation. Everything that we said was factually true, and yet,
we were all drug through the court system in an attempt to silence our voices and shake down a
settlement from our employers. We didn’t fall for the bait and were able to use the TCPA to – in
my case – get the case dismissed against me within 3 months. My co-defendants, however,
were not so fortunate, and they ended up in protracted litigation, though the appeals process for
more than 2 years. If they, or I, did not have the benefit of the stay of litigation while the case
was taken up on appeal, the results would have been disastrous to our ability to speak freely, to
our news organizations’ ability to conduct business, and to the efficiencies of the court system.

It is also worth noting that I was sued personally in this lawsuit – a common tactic of SLAPP
filers – so as to cause a divide between employer/employee relationships and to strike fear in
the heart of the speaker so that they will self-censor. The harm these lawsuits impose on
everyday citizens, like myself, is profound. The TCPA’s protections are essential to free speech
rights in Texas.

I respectfully urge you to preserve this law.
Please do not hesitate to contact me, if I can provide any further assistance.

Ben Ferguson

Dear Committee Members:

I am writing to urge you to preserve the Texas Citizens Participation Act, also known as Texas’
anti-SLAPP law, which provides essential protections for free speech in Texas. As a longtime investigative
journalist in Texas who has been the subject of a baseless and costly lawsuit, I have experienced
firsthand the damaging, and chilling, nature of a frivolous lawsuit.

I have been an investigative reporter in Texas for nearly two decades, first for the Austin
American-Statesman and currently for the ProPublica/Texas Tribune Investigative Unit. My reporting has
brought about important change. A story I did about failures inside a Department of Veterans Affairs brain
research program led to a Congressional investigation. After the Uvalde school shooting in 2022, my
reporting found that district clerks across the state were not reporting juvenile mental health commitments
to the Texas Department of Public Safety for inclusion in a federal firearm background database, as a
2007 law had intended. A year later, Texas lawmakers plugged that loophole. ProPublica and The Texas
Tribune have received some of the highest awards in journalism; ProPublica has received seven Pulitzer
Prizes, and my colleagues on the ProPublica/Texas Tribune Investigative Unit recently won the Collier
Prize for State Government Accountability for coverage of law enforcement failures in response to the
Uvalde shooting.

In 2020, at the height of the COVID-19 pandemic, our ProPublica/Texas Tribune Investigative Unit began
looking into the relationship between leaders in Hays County and a healthcare company called MRG
Medical, which was pitching its telehealth services and access to another company’s COVID antibody
tests. Our reporting detailed how local leaders took steps to promote MRG founder Kyle Hayungs, his
business interests and the antibody tests, whose accuracy had been called into question. The
investigation found the officials did not disclose to either the public or their fellow elected officials the
extent of their relationships with Hayungs.

The story was of deep public interest at a time when local governments were struggling to provide
adequate COVID testing and spending large amounts of taxpayer dollars on COVID solutions.
Two years after our story ran – and a full year after the statute of limitations on libel suits in Texas had
expired – MRG filed a lawsuit alleging the story included statements or information that defamed the
company and Hayungs and interfered with current and prospective contracts. MRG also alleged a
baseless conspiracy theory that our article had been orchestrated by J. Bruce Bugg, Jr. Not only was the
suit filed well beyond the libel law’s one-year window, but MRG was unable to identify a single inaccurate
statement in our article, which relied on dozens of interviews and a review of hundreds of emails, audio
recordings and social media posts.

The trial court nevertheless denied our motion to dismiss under the anti-SLAPP law without any analysis.
Thanks to the TCPA, we were able to immediately appeal that decision. The appeals court unanimously
ruled in our favor and dismissed the case as untimely, without the need to hear oral argument. The
plaintiff has now filed a petition for review with the Texas Supreme Court, which is still pending.

Without the TCPA and its stay of trial court proceedings during appeal, we would have had to proceed to
the full discovery phase of the case, which likely would have dragged on for many months and cost
hundreds of thousands of dollars, if not more. It would also have cost many hours of my time and my
colleagues’ time defending a frivolous lawsuit instead of reporting news to the public.

In fact, that’s often the goal behind these lawsuits — the process itself is the punishment — to force
newsrooms, which have increasingly limited resources, to spend their time and money defending against
meritless claims, and to further chill speech.
These cases also take a personal toll on the journalists involved. ProPublica Managing Editor Charles
Ornstein recently prevailed in a similar lawsuit that dragged on for six years before a Texas appeals court
dismissed the case, ruling that ProPublica’s investigation into a prominent Houston heart doctor provided
a “fair, true, and impartial account” of accusations against him.

The case required reporters to spend dozens of hours gathering materials and working with lawyers, and
in Charlie’s case resulted in a denied mortgage because he truthfully checked a box indicating that he
was a defendant in a lawsuit.

“The litigation wore on me,” Charlie wrote. “Not only did I have to scramble to get a new mortgage lender,
but I also lost sleep, had trouble focusing and felt a pit in my stomach any time I received a note from our
lawyers.”

That lawsuit also cost hundreds of thousands of dollars to defend. Thanks to the TCPA, however, we
were entitled to recover our reasonable attorney fees and costs spent defending against the baseless
lawsuit. This is a critical protection, given the enormous costs of litigation. But while ProPublica reached a
settlement with the plaintiff in which he paid a portion of our attorney fees, our insurance rates have
skyrocketed, and all of our new cases carry a much higher deductible.

Nevertheless, the protections of the TCPA have been—and continue to be—critical to safeguarding free
speech and fact-based reporting in the public interest. I respectfully urge you to preserve this law.
Please do not hesitate to contact me at jeremy.schwartz@propublica.org, if I can provide any further
assistance.

Sincerely,

Jeremy Schwartz
Reporter
ProPublica & Texas Tribune

My name is Tony McDonald, a civil rights attorney serving the conservative grassroots in Texas,
and General Counsel for the Tarrant County Republican Party. I’ve devoted my law practice to
representing grassroots Texans who want to engage in politics freely. I urge you to preserve the
Texas Citizens Participation Act (TCPA).

The Importance of the TCPA:
The TCPA was enacted to protect Texans from frivolous lawsuits that silence and intimidate
them. It is one of the most robust anti-SLAPP statutes, ensuring that Texans aren’t bullied by
wealthy litigants.

In my practice, I’ve seen its importance firsthand. A recent case involved young activists sued
for calling themselves “Young Republicans.” The TCPA enabled me to defend them against a
lawsuit they couldn’t afford, ensuring they weren’t silenced simply for engaging in political
discourse.

Efforts to Undermine the TCPA:
It’s troubling that wealthy individuals like Brint Ryan and Texans for Lawsuit Reform are invited
to this committee to advocate for measures that will dismantle the TCPA while everyday Texans
are limited to 3000 characters. The purpose of the TCPA is to protect the little guy against the
wealthy and the powerful who abuse the system. You should be hearing more from those who
depend on the TCPA for protection, not those who find its provisions a burden to their lawsuits.

Maintaining the Integrity of the Appellate Review Process:
A vital part of the TCPA is the right to interlocutory appeal, which allows immediate review of a
trial court’s decision. Without it, defendants could be dragged into years of costly litigation, even
if the trial court is wrong. I’ve argued TCPA motions on jurisdictional grounds that would have
been decided differently in different parts of the state. These motions would have been
meaningless if there was no appellate review.

Speeding Up the Appeals Process:
While concerns about the speed of appeals are valid, the solution isn’t to remove protections.
Instead, the Legislature should expedite appeals by providing courts with more resources and
clarifying the right to emergency relief and expedited briefings.

Why the TCPA Must Be Preserved Intact:
The TCPA levels the playing field, ensuring Texans can engage in public discourse without fear
of legal intimidation. Efforts to weaken it would allow the wealthy to weaponize the legal system
against their critics, silencing free speech. The Legislature must protect the TCPA to safeguard
citizens’ rights.

Tony McDonald
The Law Offices of Tony McDonald

Chairman Leach:

My name is Kevin Krause and I am a reporter with The Dallas Morning News. I am writing to
share with you and your committee my personal experience with Texas’s anti-SLAPP statute and
how it helped me during a fraught period of my professional life during which my mission to
inform the public was under attack. I have twice been sued by individuals who did not wish their
misdeeds to be made public. Their flimsy and frivolous lawsuits were ultimately dismissed
thanks to Texas’ important anti-SLAPP law.

I also want to urge the committee not to make any changes to weaken the anti-SLAPP law,
known as the Texas Citizens Participation Act. Doing so would have a chilling effect on the
integrity and practice of good journalism that informs the public. I hope my story will illustrate
this point.

When my 2016 story ran about a Fort Worth medical company, fraud and waste were endemic in
government insurance programs like Tricare that provide critical health services to members of
the military and their families as well as veterans.

I used civil court records and federal documents among other sources during my exhaustive
reporting on this case to tell a story about the serious allegations against this company and its
related entities. I was careful to be thorough and fair in my reporting. My story said the company
was the subject of a federal investigation into allegations involving an unlawful kickback
scheme. The company’s owners did not contact us after publication to question the story’s
accuracy. Instead, they sued The News and myself personally, asking for $50 million in damages.

Even when the company’s offices were raided by federal agents, the principals continued to
litigate their groundless and frivolous lawsuit.

Had the SLAPP statute not been in place in its current form, I would have had to stop work on
my journalism and spend weeks and months gathering material for the discovery phase of this
litigation, in concert with our attorneys. All of this work would have been a wasted effort. There
was overwhelming evidence that the Fort Worth health care company was indeed under
investigation as I reported.

This episode generated unwarranted and unnecessary stress and anxiety for me given the
uncertainty of a major lawsuit and the initial judicial rulings that went against us.

Most of the key officers of these affiliated companies were subsequently indicted in federal court
in connection with a kickback scheme. All were convicted of felony crimes and sentenced to
prison.

Weakening the important free-speech protections in Texas’s anti-SLAPP statute would give bad
actors the green light to file baseless lawsuits against journalists like me who attempt to expose
their misdeeds for the public’s benefit.

This happened to me a second time when I was sued frivolously by a violent convicted felon
who didn’t want the public to know about his criminal conduct. In 2018, I published a story
about how the man was being prosecuted in federal court for a gun charge after posting rap
videos of himself during which he brandished guns.

The convicted robber sued me and The News for $50 million in 2021 after he got out of prison. A
judge dismissed it, and a state appeals court upheld that decision, but again this took a significant
amount of time, and it was only because of the stay under the current anti-SLAPP law that I was
able to continue to focus on my work as a journalist and bringing to light information about
matters of public concern to the readers of The News.

Without the protections of the anti-SLAPP law, many media companies might choose not to
pursue important stories of abuse, fraud, crime and waste for fear of costly and time-consuming
litigation intended to harass journalists and suppress the truth. Many state and federal civil and
criminal actions are initiated following published reports from media watchdogs. As a result, any
weakening of press freedoms and protections could have a detrimental effect on the public safety
mission of police and prosecutors and compromises the public’s right to information.

Thank you for your consideration.

Sincerely,
Kevin Krause
Federal Reporter
The Dallas Morning News

Dear Chairman Leach:

I am a trial and appellate lawyer with more than 20 years’ experience in litigating
defamation and other free speech cases, including under the Texas Citizens Participation Act
(“TCPA” or “Act”), TEX. CIV. PRAC. & REM. CODE § 27.001 et seq. I write today on behalf of the
Freedom of Information Foundation of Texas (“FOIFT”) and the Texas Association of
Broadcasters (“TAB”). FOIFT is a nonprofit organization that strives to ensure that the public’s
business is conducted in public and to protect the liberties of free speech and press guaranteed by
the First Amendment. TAB is a nonprofit trade association established 70 years ago to represent
the interests of Texas’s 1,200+ free, over-the-air radio and television stations.

We are concerned with recent attacks on the TCPA, which appear to be based on one-sided
(and sometimes misleading) accounts of isolated cases that do not represent how the TCPA
actually works, especially in defamation and First Amendment litigation. Even more concerning
are recent proposals that purport to address TCPA “abuse,” but would actually undermine the Act’s
effectiveness in the cases where its protections are most needed.

It is impossible to overstate the importance of the TCPA in protecting free speech in Texas.
As the Texas Supreme Court recently observed in applying the Act to shield right-to-life advocates
from baseless defamation claims brought by pro-choice activists:

The [TCPA] carries forward the state’s commitment to the free exchange of ideas enshrined in our Texas and United States Constitutions. Aware of the chilling effect that defamation lawsuits have against individuals ill-equipped to finance protracted litigation, the Legislature has armed speakers with tools to seek quick dismissal of meritless suits brought to stop public debate.

Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 369 (Tex. 2023). The Supreme Court
has also recognized the TCPA’s similar purpose in defamation cases against the news media,
describing the Act as a “bulwark” against meritless lawsuits that target reporting on matters of
public concern. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019).

Some critics of the TCPA are now focusing their attack on the automatic stay of trial court
proceedings provided under Section 51.014(b) of the Texas Civil Practice and Remedies Code
during the pendency of a TCPA appeal. The flawed premise of this criticism is that a trial court’s
denial of a TCPA motion to dismiss means that the plaintiff’s claims are meritorious. That is
simply not true. In fact, trial courts’ orders denying TCPA motions to dismiss are regularly
reversed on appeal. Sometimes, the defendant’s ultimate vindication comes in the Texas Supreme
Court, after the trial court has erroneously denied a motion to dismiss and the intermediate
appellate court has erroneously affirmed that denial. In such cases, it can take several years to
finally reach the right result under the TCPA.

For example, in 2019, the Texas Supreme Court unanimously reversed the denial of a
TCPA motion to dismiss that The Dallas Morning News and one of its investigative reporters had
filed in a defamation case brought by a compounding pharmacy and two of its owners. Hall, 579
S.W.3d at 380-81. The claims targeted the newspaper’s reports on a federal criminal investigation.
The plaintiffs insisted that they were not being investigated, stating that they had no knowledge of
any such investigation. The Texas Supreme Court rejected their claim, holding that the
newspaper’s reporting was true and privileged, and recognizing that the plaintiffs’ theory would
“chill First Amendment speech” and “‘would ill serve the public’s interest in government
activities.’” Id. (quoting KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 714 (Tex. 2016)).

For the Texas Supreme Court, the holding in Hall was based on a straightforward
application of established defamation law. But, despite the Supreme Court’s unanimity, the lower
courts had repeatedly reached the opposite conclusion. The trial court had erroneously denied the
defendants’ TCPA motion to dismiss in 2016, and the Second Court of Appeals had erroneously
affirmed the denial. The Second Court of Appeals had even denied the defendants’ motion to
reconsider its erroneous decision.

The Hall case is hardly an anomaly. Just last term, the Texas Supreme Court unanimously
reversed the denial of a small community newspaper’s motion to dismiss in Polk County
Publishing Company v. Coleman, 685 S.W.3d 71 (Tex. 2024). There, too, the trial court and
intermediate appellate court had erroneously ruled for the plaintiff. Id. Similarly, in Lilith Fund,
two trial courts and an intermediate appellate court had erroneously ruled for the plaintiffs before
the Texas Supreme Court unanimously ruled for the defendants. 662 S.W.3d at 360. Losses in the
trial court and in the intermediate appellate court also preceded a broadcaster’s Supreme Court
victory in KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 713 (Tex. 2016). And these are just
the cases that have recently made it to the Texas Supreme Court. The list of defamation cases in which an intermediate appellate court has reversed a trial court’s erroneous denial of a TCPA motion to dismiss, without further review by the Supreme Court, is too long for this letter.

The high rate of reversible error in such cases is understandable. Defamation law is
notoriously complicated, as Texas Supreme Court Justice Jeff Boyd observed in his concurring
opinion in Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 643 (Tex. 2018) (Boyd, J.,
concurring) (noting that “courts and commentators have complained that defamation law is a
‘quagmire,’ lacks ‘clarity and certainty,’ is ‘overly confusing’ and ‘convoluted’”). It is no surprise
that trial courts often get it wrong—or that appellate courts sometimes do, too.

Of course, any defamation plaintiff who wins at the TCPA stage in the trial court is anxious
to proceed with full discovery and, possibly, a trial. It is understandable that they might view any
delay pending the completion of appellate proceedings as inherently unfair, or even abusive. But,
as the plaintiffs in Hall, Coleman, Lilith Fund, and Toledo—as well as numerous other TCPA
cases—can attest, the outcome may end up being very different after the appeal has concluded.
What once might have seemed like unnecessary delay was simply the amount of time necessary to
reach the right result.

With this context, it is clear that any repeal or significant curtailment of the stay pending
appeal will undermine the TCPA’s fundamental purpose and render its protections illusory. The
genius of the TCPA is not only that it facilitates the dismissal of meritless SLAPP claims, but that
it does so while protecting defendants from the burden and cost of discovery while the courts
determine whether the plaintiff’s claims are supportable. Indeed, when the TCPA was enacted in
2011, its proponents noted that the cost of discovery in defamation cases was creating a chilling
effect that made it more difficult for citizens to participate in public debate and for the news media
to keep the citizenry informed. As an example of the problem, they cited a case in which a plaintiff
had sued a television station for reporting on a state investigation into alleged misconduct by a
doctor:

The suit eventually was dismissed, but the television station was forced to pay $100,000 in legal expenses. SLAPP suits chill public debate because they cost money to defend, even if the person being sued was speaking the truth.

Today, the stakes are even higher. Without a stay, the media defendants in Hall could easily
have incurred more than a million dollars in legal fees during discovery, motion practice, and trial
preparation while the case was on appeal—all for claims that the Texas Supreme Court unanimously found to be baseless. The potential chilling effect would be even greater for the small community newspaper in Coleman or the right-to-life advocates in Lilith Fund. The TCPA has been successfully invoked by nonprofit news organizations, freelance journalists, podcasters and talk show hosts, political commentators, independent publications serving minority and immigrant
communities, the Better Business Bureau, consumer reviewers, and numerous others. These
speakers often lack the financial means to spend years litigating in multiple courts against a
wealthy defamation plaintiff who is willing and able to spend millions of dollars prosecuting their
claims. For these speakers, the stay is essential to ensuring that the TCPA continues to achieve its
intended purpose of protecting free speech in Texas and keeping Texas citizens informed on
matters of public concern.

Thank you for your time and consideration.

Sincerely,

Marc A. Fuller

In what is considered a huge win for journalism, the Supreme Court of Texas on Friday
reversed a lower court’s ruling, effectively dismissing a suit filed by Tommy L. Coleman
against Polk County Publishing Company and Valerie Reddell, former editor of the Polk
County Enterprise. The 17-page opinion was written by Justice James D. Blacklock.
Polk County Publishing Company was represented by Thomas S. Leatherbury, Director of
the First Amendment Clinic at SMU Dedman School of Law, and Ryan W. Gertz, a partner in
the Gertz Kelley Law Firm in Beaumont.

“We are grateful for the Court’s opinion. Mr. Coleman’s claims should have been dismissed
long ago. Today’s ruling is a decisive victory for our clients and for publishers and
broadcasters statewide,” Leatherbury said.

“Moreover, the Court struck a blow to the efforts of prosecutors to control or intimidate the
media. The First Amendment implications of this kind of suit are substantial and the law
and justice prevailed. Many thanks to world class defamation lawyer Tom Leatherbury and
to Kelli Barnes for allowing us to represent Polk County Publishing Company,” Gertz said.
Leatherbury is considered an expert in First Amendment law. An appellate lawyer with 40
years of experience in state and federal appeals and trials, he has also regularly
represented traditional and digital publishers and broadcasters in all aspects of media
litigation throughout his career, including libel, privacy and other torts, reporter’s privilege,
newsgathering and access, misappropriation, and breach of contract actions.
In June 2020, the Polk County Enterprise ran a story, written by Reddell, criticizing
Coleman, who at the time was a local assistant district attorney. Most of the article
criticized the Williamson County District Attorney’s Office, where Coleman previously
worked, for its involvement in the infamous wrongful conviction of Michael Morton. Among
the article’s claims about Coleman was the statement that he “assisted with the
prosecution of Michael Morton.”

Coleman sued for defamation in August 2020, claiming that the article’s statement that he
“assisted with the prosecution of Michael Morton” was false and defamatory.
The defendants moved to dismiss the suit under the Texas Citizens Participation Act
(TCPA). The motion made several arguments, including that the challenged statement was
not actionably false. The trial court denied the TCPA motion.

The Court of Appeals affirmed, so the defendants petitioned for review by the Supreme
Court of Texas. The petition was granted, and oral arguments were presented before the
Supreme Court of Texas on Sept. 14.

“This is a victory not only for the Enterprise but for all citizens, because it strengthens the
First Amendment. The court affirmed an important precedent in American jurisprudence –
that the truth is the ultimate defense in a defamation lawsuit. In the final analysis, the
Enterprise story was truthful, and the high court said clearly that legal quibbling over the wording of a story can’t change the truth,” Donnis Baggett, executive vice president of the Texas Press Association, said.

“When the First Amendment is strengthened, the citizen is the real winner. Citizens depend
on journalists to inform them about the actions of their government officials. Without a free
press there can be little accountability for those officials,” Baggett said. Polk County Enterprise Publisher Kelli Barnes agreed.

“The Polk County Enterprise, part of the Polk County Publishing Company group of newspapers, is dedicated to covering local news, delivered by trained professionals. We are thankful this case is behind us, of course, but it is just another day in the newsroom. We will continue, as always, to bring quality community journalism to our readers,” Barnes said.

Coleman must pay newspaper, former editor for lawsuit gone awry

By: Emily Vanks Wooten

Chairman Leach, Vice Chairman Johnson, and Committee Members:
On behalf of Texas Press Association and its more than 350 members, I write to express concern regarding possible changes to Texas’s anti-SLAPP law. All of TPA’s members—from small-town weekly newspapers to large metropolitan dailies—rely on the Texas Citizens Participation Act to discourage and dismiss meritless lawsuits. These lawsuits are frequently filed to silence
and harass journalists who report on matters of public concern and to subvert the protections of
the First Amendment.

SLAPP lawsuits not only clog the court system and chill free speech, they exact a financial,
professional, and emotional toll on their victims. Several SLAPP victims have written about their experiences as such. See, e.g., https://www.cjr.org/tow_center/op-ed-scorched-earth-litigation-
the-call-for-anti-slapp-may-save-you.php. SLAPP victims face the prospect of financial ruin from plaintiffs who seek to intimidate them with million-dollar claims. Individuals facing SLAPP suits face significant financial repercussions, simply because they are defendants facing
the possibility of such a judgment.

For media outlets, SLAPP litigation can put a small-town weekly newspaper out of business or
inflict cuts into profit margins of larger dailies that are already paper-thin. The longer a meritless
case winds through the court system, the more likely it is to destroy or seriously impair the
ability of newspapers to aggressively cover their communities.

This problem isn’t limited to newspapers. In 2018, the nonprofit outlet ProPublica reported on a
pioneering Houston surgeon who was accused of violating federal research rules and skirting
ethical guidelines. When the surgeon filed a SLAPP suit against the reporters, it led to a six-year
legal saga that only recently concluded with a ruling that ProPublica’s reporting was a “fair, true
and impartial account” of the allegations against the surgeon. In other words, the case was
meritless all along. While six years is unusually long for a SLAPP case, the lawsuit would have
dragged on much longer—and drained even more resources—if not for the TCPA. Further, there
were two interlocutory appeals in this case which because the underlying case was stayed did not
unnecessarily further clog up the court system with parallel litigation in both the trial and
appellate court that would have occurred without the stay. Still, however, the case took its toll on
the individual journalist, Pulitzer Prize winning journalist Charlie Ornstein, who wrote about
being denied a mortgage as a result of the pending litigation. https://www.propublica.org/article/bud-frazier-dismissed-libel-lawsuit.

In some cases, the TCPA actually serves as a deterrent against filing of suits to begin with, and
we have seen this with some of our members who have been threatened with suit but after

invoking the protections under the TCPA no lawsuit was filed. When a lawsuit is filed, in most
cases, the TCPA allows SLAPP victims to obtain a quick dismissal—sometimes within months
of being filed. The automatic stay provision in the TCPA ensures that SLAPP victims can avoid
additional litigation costs—including expensive and invasive discovery—while a ruling on the
SLAPP motion is appealed. For instance, when the Dallas Morning News on two different
occasions was on the receiving end of SLAPP suits, multiple appeals ensued, and it was only
because of the TCPA that the newspaper did not have to fight on multiple fronts simultaneously,
needlessly incurring expenses and detracting from their ability to serve the public by delivering
the news of the day. In both instances, the newspaper ultimately prevailed, and the lawsuits were
deemed to be meritless.

Removing the TCPA’s automatic stay provision would dramatically increase the litigation costs
for SLAPP victims, who would be forced to continue litigating in the trial court even as their
TCPA motion is being considered on appeal. Removing the stay would also sow confusion in the
court system, since the trial and appellate courts would both be ruling on overlapping issues in
the same case, at the same time. In the words of former Chief Justice of the Texas Supreme
Court Wallace Jefferson, this change would “create a two-tier system in which parties, in certain
instances, would be forced to litigate their cases simultaneously at the trial and appellate courts,
which will cause significant perils for both litigants and courts.” See Chief Justice Wallace
Jefferson’s written testimony from 88th Legislative session attached hereto.

These changes would not only affect SLAPP victims, they would have far-reaching effects on
the entire media industry in Texas. Insurance companies who offer media liability insurance base
their premiums largely on the cost of litigation, which typically outweighs the actual cost of any
judgment or settlement in media cases. Weakening the TCPA to allow for more litigation costs
will drive up these media-liability premiums and could prompt some insurance companies to
leave the Texas market altogether. (See Louis Scimecca, Media Liability Advisory Services,
LLC written testimony from 88th Legislative session.)

Newspapers are just one industry that will be impacted by these proposed changes. TPA is a
proud member of the Protect Free Speech Coalition, which brings together hundreds of
organizations and individuals to help legislators understand the broader consequences of
weakening Texas’ anti-SLAPP protections. The coalition spans a wide range of interests and
viewpoints, including Americans for Prosperity-Texas, Better Business Bureau serving Texas,
Center for Biological Diversity, Institute for Justice, League of Women Voters, National Right to
Life, Electronic Frontier Foundation, and more.

We stand ready to work with the Committee and welcome any questions you may have about
how changes to the TCPA would affect newspapers and the broader media industry.

Sincerely,

Mike Hodgens & Donnis Baggett

_______________________________________

Dear Chairman Leach, Vice Chairman Johnson and House Judiciary and Civil Jurisprudence committee members,

I was Chief Justice of the Supreme Court of Texas and served on that Court from 2001 to
2013. I am also currently Treasurer of the American Law Institute.

I am writing to express my concerns about the unintended consequences passage of SB 896
would inflict on the court system. As I see it, the bill would create a two-tier system in which
parties, in certain instances, would be forced to litigate their cases simultaneously at the trial and
appellate courts, which will cause significant perils for both litigants and courts.

Since its passage in 2011, the Texas Citizens Participation Act has been the subject of
appeals to the Texas Supreme Court about whether the Act was timely asserted and whether an
exemption to it applies. Those cases took nearly a decade before the Supreme Court gave definitive
answers. That Court ultimately concluded that the trial courts in those cases had erred in finding
the TCPA motion untimely or subject to an exemption. See, e.g., Kinder Morgan SACROC, LP v.
Scurry Cnty, 622 S.W.3d 835 (Tex. 2021), Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021),
Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018).

In each case, if SB 896 had been the law and the stay lifted during the appeals, the parties
and the courts would have expended enormous resources only for an appellate court later to decide
that the case lacked merit in the first place. Additionally, the litigants would have needlessly spent
exponentially more in litigation costs on discovery, trials, and appeals that were all for naught.

SB 896 is troubling in light of the Legislature’s extensive modifications to the TCPA in
2019, including the addition of eight new exemptions. The courts will grapple with the validity of
these exemptions for decades. A much more efficient result would obtain if litigants were given
the right to appeal a trial court’s decision immediately This is why, in my view, the Legislature
and this Court have preserved the right to defend against invalid barriers to the Act while staying
the trial courts’ wasteful prosecution of them. In short, SB 896 could strain an already overburdened court system, curtail the necessary checks and balances provided by Texas appellate courts, and cause needless increases in litigation costs for Texas citizens.

Sincerely, 

Wallace B. Jefferson 

_______________________________________

Dear Chairman Leach,

I am writing to express my concern with proposed legislation, SB 896, and the adverse economic impact
this legislation could have on the affordability and availability of Media Liability insurance if such
amendments are adopted.

I spent my thirty-nine-year career in the insurance business underwriting, marketing and managing
business for five insurance companies until I retired in 2020. My first five years were spent in the
general Property/Casualty Commercial Lines sector. The next thirty-four years I dedicated my career to
the specialized area of Media Liability insurance which provides coverage for claims arising from
defamation, infringement of copyright or trademark, invasion of privacy, errors and omissions, and
related torts.

Media Liability insurance is known as the professional liability/errors & omissions coverage for media
businesses including publishers, broadcasters, advertising agencies, internet/online publishers and
others engaged in communications to the public. It is akin to Lawyers Malpractice insurance for
attorneys or Medical Malpractice insurance for physicians.

Currently, I am Principal of Media Liability Advisory Services, LLC which provides Media Liability
consulting services to insurance companies, insurance brokers and insurance consumers.

Anti-SLAPP statutes serve a much-needed role with respect to the intersection of Media Liability
insurance and the First Amendment. When implemented properly, Anti-SLAPP statues are tools that
support the free flow of speech and distribution of information by cutting short lawsuits brought by
individuals or entities intent on quashing opposing views by filing meritless legal actions, thereby
subjecting defendants to unnecessary, and often onerous, legal costs.

Media Liability insurance is offered by only a limited number of insurance companies when compared to
the thousands of insurance companies which offer commercial lines, personal lines, accident & health,
and life insurance coverages, (i.e. non-specialized insurance products). As such, the Media Liability
underwriting process and the handling of claims is highly specialized.

The underwriting process, (i.e. the process of accepting or rejecting a risk, and setting the terms,
conditions and premium under which a risk will be accepted,) involves an analysis of many factors,
including but not limited to, editorial experience, type/gist of content, claim history and legal climate, to
name a few.

Media Liability claims can be very expensive. Covered costs are incurred at the trial court level, as well
as the appellate level. In the majority of claims it is only legal costs that are incurred, without any
judgment or settlement. On the whole, legal costs for an average claim generally far outweigh the cost
of any judgment or settlement.

Anti-SLAPP statutes allow for the quick disposition of frivolous and meritless claims, prevents the
wealthy, influential and others from “bullying” those that have opposing views with unnecessary and
costly litigation, and aids in keeping already high legal costs incurred in defending such claims in
check. SB 896 will only serve to increase the cost of litigation because by removing the automatic stay
at the trial level, now two sets of litigation will run simultaneously, one at the trial level for the
underlying claim and the other incurred at the appellate level as the parties prosecute or oppose the
ensuing appeal of the trial court’s ruling on the Anti-SLAPP motion.

Insurance companies collect data on their various product portfolios and evaluate the data in a host of
micro and macro ways as part of their underwriting, claims and actuarial functions. Because legal
expense is a key component of Media Liability claims, insurance companies pay particular attention to
claim trends and legal costs and litigation climate on state-by-state basis. The laws of states and
associated trends and legal costs resulting from such laws typically place a state in category referred to
as a “Favorable Jurisdiction” or “Unfavorable Jurisdiction” which is a component utilized to increase or
decrease premium when determining the final premium for a risk. It also can possibly determine
whether an insurance product continues to be available in a particular jurisdiction.

The adoption of SB 896 could result in two primary negative outcomes for Texas insurance
consumers. First, over time, once the limited number of insurance companies that offer Media Liability
insurance notice the increased cost of legal expense in Texas as a result of SB 896, the premiums
charged to Texas policy holders will likely increase. On a worst case scenario, insurance companies
could withdraw from writing Media Liability insurance in Texas fearing they will not be able to offer their
products at a fair price in order to make a profit because of the additional legal expense incurred due to
SB 896.

Respectfully, for the reasons described above, I ask that the Texas Legislature reject SB 896.
Sincerely,
Louis Scimecca
Principal
Media Liability Advisory Services, LLC