SLAPP’ing Free Speech Inquisitions

by Stephen Klein

In two important rulings from the Texas Supreme Court on April 15, the court assured the effectiveness of the state's Citizens Participation Act (TCPA), which was enacted in 2011. These cases, AgendaWise v. Abraham and Sullivan v. Abraham, affirmed the dismissal of two defamation actions brought by a public figure against an activist and an online news outlet.

Typically known as "anti-SLAPP" statutes, laws like the TCPA aim to prevent "strategic lawsuits against public participation." More specifically, the law aims to "safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury."

SLAPP statutes are not without controversy, and some legal scholars and attorneys are concerned that the laws have been abused to unjustly prevent meritorious lawsuits. The AgendaWise and Sullivan cases, however, both show the merits in having a quick process for remedying SLAPPs (quicker than enduring a full trial, anyway) and, importantly, for providing attorney fees to those who must endure them.

Both cases originated with defamation lawsuits filed by Salem Abraham, a former elected member of the Canadian Independent School District Board of Trustees, a prominent member of the small north Texas community, and an active politico in the state. The AgendaWise decision discusses the facts of his suits. Basically, Abraham attended a campaign event of a candidate with whom he disagreed. He was asked to leave by a campaign worker, handed out some fliers and then left. The AgendaWise blog reported that Abraham had to be "forcefully removed." Abraham contacted AgendaWise for a correction, and after one correction he further objected to being asked to leave for "heckling." AgendaWise issued another correction and sent two letters of apology. Abraham nevertheless sued.

The argument that false statements in the blog post in question could be plausibly proved to have been published with "actual malice," the standard required for public figures like Abraham to prove defamation, is very unlikely. That these statements could rise to a level where Abraham would be entitled to any sort of damages is unlikelier still. It is, indeed, one of the most laughable lawsuits and one of the baldest attempts to punish speech that I have seen in some time.

Abraham's suit against Michael Quinn Sullivan was dismissed more unequivocally than the AgendaWise decision, in part because Sullivan's ties to the alleged defamation were tenuous, at best. His appeal centered on attorneys' fees and costs, and after this latest ruling he will likely get far closer to the roughly $70,000 incurred to defend against Abraham's suit from the trial court. Thankfully, the TCPA provides that for all this silliness Abraham can pay not only his own attorneys, but those of the people he's frivolously sued.

The AgendaWise decision, however, is not as close to completion as Sullivan. Abraham appears poised to challenge further contours of the TCPA, including its constitutionality under the Texas Constitution and the extent of protection provided journalist sources.

Like most domestic political lawfare, there is certainly much more to the Abraham / Sullivan / AgendaWise dustup than what made it into the lawsuit and the Texas Supreme Court's opinions. In 2013, after the TCPA ruling against him at the trial court in the Sullivan case, Abraham issued a press release that certainly seemed to release a lot of pent-up frustration. Yet its barbs against Sullivan and allegations of a vast Texas conspiracy—statements that may indeed be quite false—only prove the importance of keeping even the dirtiest political rhetoric (even untrue statements) in the political arena and outside of the courts. The alternatives amount to hindering the free flow of information (from, for example, AgendaWise's sources), causing over-caution in publishing reports or criticism (from, for example, AgendaWise and Sullivan), and allowing thin-skinned politicos (here's looking at you, Mr. Abraham) to file frivolous lawsuit and, even if they don't win, bury their opponents in legal fees.