Texas Citizen Participation Act Takes Aim at Frivolous Lawsuits: Citizens, Journalists and Homeowners Testify in Support

28 03 2011

One of the things that I have been working on since finishing law school is supporting the effort to get Anti-SLAPP legislation passed in Texas.

On Monday the Texas House Committee on Judiciary & Civil Jurisprudence held a hearing on The Citizen Participation Act, a law designed to protect Texans from frivolous lawsuits that target their First Amendment rights. The Citizen Participation Act is a bi-partisan effort at aimed at supporting the rights of all Texans affected by frivolous SLAPP suits.

Every Texan, from a rural housewife, to an Austin taxicab driver, to the Better Business Bureau, is a potential target of a SLAPP suit. The Internet age has created a more permanent and searchable record of public participation as citizen participation in democracy grows through self-publishing, citizen journalism and other forms of speech. Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits, called Strategic Lawsuits Against Public Participation or “SLAPP” suits. Twenty-seven states and D.C. have laws similar to the Texas Citizen Participation Act.

The Act is comprised of House Bill 2973, sponsored by Chairman Todd Hunter, R-Corpus Christi, and Senate Bill 1565, co-sponsored by Sen. Rodney Ellis, D-Houston and Sen. Kevin Eltife, R-Tyler.

Author Carla Main told the committee that after she wrote a book about eminent domain, a real estate developer filed half a dozen lawsuits, naming her, her publisher, the person who wrote a blurb on the back of the book and a Texas newspaper that wrote a review of the book as defendants. By including the newspaper, The Galveston County Daily News, in the suit, the developer prevented Main from removing the case to Federal Court “where we could have moved to dismiss the case immediately.”

The bill “creates a mechanism to get rid of meritless lawsuits at the outset of the proceeding and it provides for a means to help alleviate some of the burden on our court system,” said Laura Prather, a First Amendment attorney from Austin.

Shane Fitzgerald, Editor of the Corpus Christi Caller-Times told the committee how just last week the newspaper was threatened with a lawsuit for publishing a photo taken on a public beach during Spring Break. Refineries and other industries have threatened to sue newspapers over the publication of public records and safety reports from state agencies. Fitzgerald stated that the paper is threatened with such lawsuits several times a month. The effect of these suits is increased costs to the newspaper and fewer resources available for reporting.

Also testifying was Janet Ahmad, of San Antonio, and the president of Home Owners for Better Building. Ahmad shared details of how she was sued for racketeering by KB homes because she organized protests of the builder.

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SLAPP meets Photography

26 06 2008

So, now we know what a SLAPP suit is, and what anti-SLAPP is. You may wonder… What does it have to do with photography?

There are a couple of cases where SLAPP was used as intimidation against photographers:

California Coastal Records Project: In a classic Free Speech vs. Right to Privacy case, when environmentalist and photographer, Kenneth Adelman, posted aerial photographs of the California Coastline, he ended up with a photo of Babara Streisand’s house in the collection, available on the internet. She filed an invasion of privacy suit. Adelman filed an anti-SLAPP motion. It was granted and she was forced to pay over $150,000 in his legal fees.

Ironically, before the lawsuit, the image had only been downloaded a few times. Now the very photo that she was trying to keep away from public eye has been seen in connection with the dozens and dozens of articles posted on the case, and the blossoming environmental group attained global recognition, and more positive publicity than legions of PR agencies could ever get them. This is now called the “Streisand Effect.”

Copyright SLAPP: Photographer Chris Gregerson filed a copyright infringement suit against a local business who violated his copyright and the infringers attempted to bury him in countersuits with charges such as libel, defamation and misappropriation. His SLAPP motion to strike was denied. He eventually won his case, but after 2 years of legal wrangling. He documents the saga on his website here.

Here is a case where SLAPP was alleged, but it wasn’t really so and the motion to strike was denied.

Sports Illustrated/ Invasion of Privacy: In 1999, Sports Illustrated ran a story about child molesters in little league baseball. They included in the story a photo of a team whose manager had plead guilty to molesting five children that he had coached. Some of the children in the photo sued SI parent corp, Time Warner. Time Warner filed an anti-SLAPP motion to strike. It was denied and upheld on appeal.

One of the elements of a SLAPP suit is that it is unlikely to succeed. The reason this anti-SLAPP motion to strike was denied was these plaintiffs had a case that was reasonably likely to succeed if all the allegations were true. They had demonstrated a prima facie case of invasion of privacy. Anti-SLAPP is designed to curb meritless lawsuits, not to prohibit bona fide claims.