Freedom of
speech and thought lie at the core of liberty.
Though many philosophers, statesmen, and legal practitioners have opined
on the value of free speech and thought, Justice Louis Brandies captured best
the value of free speech and thought in our constitutional scheme:
Those who won
our independence believed that the final end of the state was to make [people]
free to develop their faculties, and that in its government the deliberative
forces should prevail over the arbitrary. . . They believed that freedom to
think as you will and speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and assembly
discussion would be futile; that with them, discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that the
greatest menace to freedom is an inert people; that public discussion is a
political duty; and that this should be a fundamental principle of American
government.
Whitney
v. California,
274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
Despite
its central place in our constitutional scheme, the right to free speech is
extremely fragile. Government imposed limitations to speech and thought sometimes
elude detection, because government does not always directly regulate speech
and, even when it does, the limitations are not always obvious. Notwithstanding
the sometimes opaque nature of direct impositions, a major threat to speech and
thought comes from indirect government impositions.
SLAPP Suits as Indirect Government
Impositions to Speech
Strategic
litigation against public participation (SLAPP) provides one example of an
indirect governmentally-imposed limitation to speech and thought. These are
suits brought by one party in an effort to silence another party against whom
the suit is filed. The prototypical SLAPP suit involves a defamation claim
against the defendant. Though government is not directly involved in chilling
or silencing the defendant’s speech, the judicial system is the means by which
the plaintiff chills or silences the defendant’s speech. The threat of a
potential judgment looming over the defendant implicates the government in the
plaintiff’s effort to chill or silence the defendant’s speech.
Texas’ Anti-SLAPP Legislation
Texas enacted
Anti-SLAPP legislation to curb litigants’ efforts to employ the judicial system
as a means to silence or chill another’s speech. The Texas Citizens
Participation Act (TCPA) provides pretrial procedural checks against litigation
designed to chill a party’s right to free speech, among other first Amendment
rights. See Tex. Civ. Prac. & Rem. Code §§ 27.001-011. The Act
allows a party to file a motion to dismiss the case, with an award of attorney
fees and costs to the party if successful on the motion.
This procedure
is available to any party, regardless of whether it is an individual or entity
and regardless of whether the suit is against the person for an act committed
in his or her individual capacity or in his or her capacity as a member of the
electronic or print media. There are, however, four exemptions. Commercial
speech falls outside the TCPA. Suits for
bodily injury, wrongful death, or survival also fall outside of the TCPA, as do
insurance code suits or actions arising out of insurance contracts. Enforcement actions by the state also do not
fall within the TCPA. See Tex. Civ. Prac. & Rem. Code §
27.010(a)-(d).
The Act also
provides pretrial appellate procedural checks against suspected SLAPP
suits. If the party alleging a First
Amendment right violation is unsuccessful in their motion to dismiss, that
party may take an automatic, accelerated interlocutory appeal on the trial
court’s denial of the motion to dismiss. See
Tex. Civ. Prac. & Rem. Code
§§ 27.008, 51.014(a)(12). Again, this appellate procedure is available to any
party asserting a violation of their right to free speech, association, or to
petition government.
The
Texas Civil Practice and Remedies Code provides an additional appellate
procedure to members “of the electronic or print media, acting in such
capacity, or a person whose communication appears in or is published by the
electronic or print media.” Tex. Civ.
Prac. & Rem. Code § 51.014(a)(6).
If a party falls into this select category, they may take an automatic,
accelerated interlocutory appeal on a trial court’s denial of a motion for
summary judgment based on a claim or defense arising under the free speech or
press clause of the First Amendment. Id.
Speaker Favoritism in Texas’ Anti-SLAPP
Appellate Procedure
The
significance of this additional appellate procedure for members of the
electronic or print media, and for a person whose article appears in electronic
or print media, is that this select group gets two bites at the appellate apple
by way of an automatic interlocutory appeal.
If, for example, a person is sued for defamation for his op-ed piece
published on huffingtonpost.com, he may file a motion to dismiss and
subsequently appeal the trial court’s denial without first seeking permission
to take the issue on interlocutory appeal.
Even if he loses the first interlocutory appeal, he may then file a
motion for summary judgment and subsequently appeal the trial court’s denial again
without seeking permission to take the issue on interlocutory appeal.
Parties
who do not fall within this select group get one-shot at an automatic,
accelerated interlocutory appeal. Though TCPR section 51.014(a)(6) aims to keep
free speech channels open, it only does so for a select group of speakers. All
other speakers are directly excluded. So this raises the question, is section
51.014(a)(6) an example of unconstitutional speaker-based discrimination?
The United States Supreme Court has held that it is
“axiomatic that the government may not regulate speech based on its substantive
content or the message it conveys.” Rosenberger
v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
Following this precept, government “may not favor one speaker over another.” Id. Government action that discriminates
against speech based on its message is presumed unconstitutional. Id. Viewpoint discrimination, however, is a
more egregious form of content discrimination:
“When the government targets not subject matter, but particular views
[or ideology, opinion, or perspective] taken by speakers on a subject, the
violation of the First Amendment is all the more blatant.” Id.; see also R. A. V. v. St. Paul, 505
U.S. 377, 391 (1992).
So
far, lower courts have only obliquely grazed this issue. In Main v. Royall, for example, the Dallas
Court of Appeals had to decide whether book authors and publishers fell within
section 51.014(a)(6)’s scope, i.e., whether they could be construed as members
of the electronic or print media. 348 S.W.3d 381 (Tex. App.–Dallas 2011, no
pet.). The court focused on the legislative purpose driving section
51.014(a)(6)—“to provide members of the media with a mechanism to obtain
immediate appellate review . . . of issues arising under the free speech and
free press clause [to] avoid[] the time and expense of a trial when the
defendant may be entitled to a constitutional or statutory privilege precluding
liability”— and held that book authors and publishers comfortably fit into the forms
of media protected by the statute. Id. at
386-87.
The
court dismissed the plaintiff’s argument that applying the statute to book
authors would require future courts to apply the statute to anyone “with a
computer, typewriter, or printer” and exclude only those persons writing by pen
and pencil. Id. This latter issue was
one the court did not have to decide to dispose of the matter. Id. But it is an issue that the courts must, at
some point, confront.
Perhaps
a court may construe section 51.014(a)(6) to apply to any person writing by way
of computer, or typewriter, and, perhaps a court may construe the statute to
reach people writing with a pen or pencil. The statute clearly excludes oral
communications made outside of the presence of cameras, computers, or other
media. The statute would also likely not apply to any communication between
persons by way of text message.
Selective
procedural protection under section 51.014(a)(6) raises three related problems:
First, affording media personnel and outlets additional First Amendment
protection over ordinary citizens raises the specter of favored viewpoints,
which is odious to the First Amendment. Perhaps more people value an opinion
piece published on CNN.com over a competing opinion posted on a neighbor’s
personal blog. The value in securing an equal opportunity for your neighbor
publically to voice his opinions and concerns lies in part in the act itself,
an act of civic engagement; and in part on the content itself, which promotes
the search for truth and contributes to the market place of ideas; and, finally,
in part on its secondary function, as a means through which ordinary citizens
can improve journalistic rigor—an often neglected value in the age of “fake
news”—and political governance.
Second,
and related to the importance of civic engagement, affording “media” outlets
and personnel greater First Amendment protection than ordinary citizens adds to
civil discord and distrust. Even before, but far more after the Supreme Court
decided Citizens United v. Federal Election Commission, there has
been public clamor over corporate influence in government and money-backed
interests potentially undermining our democratic processes. That The Dallas
Morning News is part of the press and, thereby, explicitly protected by the
First Amendment should not veil the fact that The Dallas Morning News is a for
profit corporate body, owned by A. H. Belo Corporation. And, tellingly, section
51.014(a)(6) was enacted to afford extra First Amendment protection to media
outlets eighteen (18) years before similar, though not the same, protection was
afforded to every other person in section 27. Freedom of the press, freedom of
speech, and the right to petition the government are inseparable rights,
entitled to equal constitutional protection, not one greater than the other. See McDonald v. Smith, 472 U.S. 479,
482-485 (1985).
Third,
and related to the second, section 51.014(a)(6) provides less protection to the
people who often need the most protection from baseless suits designed to
silence them. It was not lost on the legislature when it passed section 51.014
that litigation costs alone are speech prohibitive. See House research Org., Bill Analysis, Tex. S.B. 76, 73rd
Leg., R.S. (41) (stating that the purpose of the section is “to allow a
newspaper, radio station or television station that was sued for libel to make
an immediate appeal of a judge’s refusal to grant a summary judgment” so that
an appellate court may “sort out unmeritorious libel cases before a case enters
the time-consuming and expensive trial phase.”). Although section 27.003
affords every person similar protection to section 51.014(a)(6), only media
parties have the option to allow the sixty-day deadline to file a motion to
dismiss to pass and, instead, opt into some discovery to file an informed
summary judgment motion, leveraging an automatic and accelerated appeal against
both the non-movant and the trial judge. If an ordinary citizen loses on a section 27
motion to dismiss and loses on an automatic interlocutory appeal, he must bear
the cost of further litigation, all the way to trial if he does not settle or win
on summary judgment.
Conclusion
Texas’
Anti-SLAPP scheme provides a great and necessary check against indirect
government impositions to free speech, a free press, and the right to petition the
government. Though its direct statutory measures in section 27 afford equal
constitutional protection to all parties whose First Amendment rights are
threatened by a SLAPP suit, its direct statutory measure in section
51.014(a)(6) favors media speakers over ordinary speakers. Inherent in the right to speak is the
recipient’s right to listen, a right to receive information; likewise, inherent
in the right to publish is a right to collect information. See Richmond Newspapers v. Va., 448 U.S. 555, 599 n.15 (1980). When
government decides who may speak, it also decides what one may hear; when
government decides who may publish and by what means, it also decides what
information one may collect to inform his or her understanding of this limited
life he or she has. The right to freedom of speech is indeed a very fragile
right; one must be on guard to detect subtle impositions to it—indeed, these
impositions may sometimes come in the guise of protecting the very right it
diminishes.
