TAB files amicus brief in ethics court case could impact use of Texas’ anti-SLAPP statute

posted on 9.28.2015

A three-judge panel in Fort Worth has heard oral arguments, but has not issued a decision, in a case involving a conservative activist whom the Texas Ethics Commission said broke state ethics laws.

The Texas Citizen Participation Act (the anti-SLAPP litigation statute which TAB helped pass in 2011) could be negatively impacted by the case.

SLAPP is an acronym for "Strategic Lawsuit Against Public Participation."

SLAPP cases typically involve an individual or business that files a civil lawsuit against a person expressing critical views in order to chill the valid exercise of free speech.

TAB championed the statute’s passage because media outlets were often dragged into such civil actions for merely reporting whistle-blowing.

The TEC fined Michael Quinn Sullivan $10,000 in July of 2014, saying he failed to register as a lobbyist in 2010 and 2011.

Sullivan is the head of the anti-tax and limited government group Empower Texans.

He was successful in his attempt to have the fine dismissed by a Denton County judge.

The lower court threw out the TEC’s ruling in March based upon its interpretation of the anti-SLAPP litigation law.

At play in this case is the TCPA provision that allows lawsuits to be dismissed which involve individuals exercising free speech rights on “matters of public concern.”

Sullivan claims the TEC is trying to prevent him from expressing his conservative views.

TEC lawyers say the anti-SLAPP statute was passed to address private, civil lawsuits involving the chilling of an individual’s First Amendment rights, not for cases involving a state agency issuing an administrative fine.

TAB and the Texas Press Association support that view and filed a 600+ page amicus brief saying the law was "never intended to permit one to avoid the enforcement of government fines through procedurally gaming the system."

The amicus, prepared by attorneys with TAB Associate Member law firm Haynes and Boone, said the lower court’s decision “puts the enforcement mechanism for the more than 500 regulated industries in the State of Texas in a state of disarray.”

“If this incorrect and misapplied lower court’s ruling is allowed to stand, it could negatively impact the interpretation and even the very life of the TCPA,” said TAB President Oscar Rodriguez.

Passage of the law has saved Texas radio and TV stations tens of thousands in legal costs by allowing media outlets to be dismissed quickly from frivolous lawsuits.

Stations can read the TAB/TPA amicus brief here

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.

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