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):
- Fifth Circuit Decisions Noting an “Unresolved Issue.” Block v. Tanenhaus, 867 F.3d 585, 589 & n. 2 (5thCir. 2017); Diamond Consortium, Inc. v. Hammervold, No. 17-40582, 2018 WL 2077910, *3 at n. 3 (May 3, 2018, 5thCir.).
- District Courts – Applying the TCPA. Allen v. Heath, No. 6:16-cv-51-MHS-JDL, 2016 WL 7971294 at *3 (May 6, 2016, E.D. Tx.) (applying TCPA to federal and state law claims); Walker v. Beaumont ISD, No. 1:15-CV-379, 2016 WL 3672224 at *2-3 (February 11, 2016, ED Tx.) (applying TCPA to state law claims and to federal claims without ruling on applicability to the federal claims); Pseudonym v. East Houston Regional Medical Center, No. 4:17-CV-3277, 2018 WL 2392200, at *2-3 (April 25, 2018, SD Tx.) (applying TCPA and discussing three earlier Southern District cases that did the same).
- District Courts – Declining to Apply TCPA. Rudkin v. Roger Beasley Imports, Inc., No. A-17-CV-849-LY, 2017 WL 6622561 *2 (Dec. 28, 2017, WD Tx.); Misko v. Backes, No. 3:16-CV-3080-M, 2018 WL2335466, *2 (May 4, 2018, ND Tx.) (no state law claims, so the statute did not apply); Matthiew v. Subsea, No. 4:17-CV-3140, 2018 WL 1515264, *1 (March 9, 2018, SD Tx.); Thoroughbred Ventures, LLC v. Disman, et al., No. 4:18-CV-00318, 2018 WL 3472717, at *3 (July 19, 2018, ED Tx.); Van Dyke v. Retzlaff, No. 4:18-CV-247, p. 5 (July 24, 2018, ED Tx.) (not yet reported in Westlaw).
photo credit: marcoverch On Twitter, Trump accuses ‘social media’ of limiting free speech of conservatives via photopin (license)