Many states, including Texas, enacted “anti-SLAPP” statutes to protect a person’s right to speak, petition the government, and freely associate with others.  The Texas Citizens Participation Act (“TCPA”) is one such statute.  Like other anti-SLAPP statutes, the TCPA provides a defendant who is sued for exercising the First Amendment right to freedom of speech, freedom of association or the right to petition the government the ability to file a motion to dismiss the lawsuit at the outset of the case.

The TCPA clearly applies in lawsuits pending in Texas state court.  However, federal courts in Texas issued conflicting opinions about whether the TCPA applies in federal court lawsuits that involve claims arising under Texas state law (as opposed to federal law).

In both 2017 and 2018, the Fifth Circuit (the federal court of appeals presiding over Texas) issued opinions stating, “the applicability of anti-SLAPP statutes in federal court is an important and unresolved issue.”  Neither of those appellate decisions resolved the question.

That leaves us currently with a relatively even split of lower court opinions.  Some federal district courts applied the TCPA to provide defendants an opportunity to seek expedited dismissal of the case.  Other federal district courts concluded that the TCPA does not apply in federal court lawsuits.

Until the Fifth Circuit takes a position, litigants will be left with the uncertainty caused by this conflict in federal case authority.

For the law geeks out there, these are the federal court decisions referenced above (links too where available):

photo credit: marcoverch On Twitter, Trump accuses ‘social media’ of limiting free speech of conservatives via photopin (license)