No legislation does more to advance Texans’ First Amendment rights than the 2011 Texas Citizens Participation Act. The act quickly dismisses unmeritorious claims attacking speech, association and petition rights; stays discovery until appellate courts decide claims are sufficiently supported; and awards attorney’s fees and costs to successful movants. The act particularly addresses situations where resource-rich Goliath sues to silence David, armed with a slingshot and a pro bono attorney.

But the Texas Legislature continues hacking away at the act’s protections, narrowing Texans’ First Amendment rights. Because of isolated cases elevated by well-connected Goliaths, Senate Bill 896 targets the stay shielding constitutionally protected activity from costly discovery and trial until appellate courts weigh in.

SB 896, which passed the Senate, lifts the stay of discovery and trial when: The trial court finds the act motion 1. was frivolous or filed solely for delay; 2. was untimely; or 3. involved speech or conduct excluded from the act by the ever-burgeoning list of exemptions.

Why should all unsuccessful Texas Citizens Participation Act movants benefit from a stay on appeal? Respectfully, trial courts get it wrong sometimes. Appellate courts often reverse trial court findings of frivolousness.

Trial courts run busy dockets, few have law clerks to help research, they may be less familiar with constitutional issues, and, unfortunately, sometimes trial courts dislike movants’ speech as much as plaintiffs do.

SB 896 proponents argue the issues of timely filing and exempt speech or conduct are straightforward. Their lack of experience with and shallow research on the act shows. Appellate courts affirm denials of TCPA motions based on timeliness or exempt conduct in fewer than half of cases.

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