I posted a while back about legislative adjustments to the so-called Anti-SLAPP (Strategic Lawsuits Against Public Participation) act aimed at protecting freedom of speech. Officially named the Texas Citizen Participation, ("TCPA," Chapter 27 of the Texas Civil Practice and Remedies Code), this statute (enacted in June 2011 and modified in June 2013) gives protections to citizens who make "communications" on "matters of public concern" through a motion-to-dismiss procedure.
If the party bringing the motion (usually the defendant) can show by a preponderance of the evidence that the lawsuit relates to the right to free speech, petition, or associate, the burden shifts to the nonmovant (usually the plaintiff) to show by "clear and specific evidence" a prima facie case for each element of its claim. This puts an immediate hurdle in front of the plaintiff—if the nonmovant can't muster this proof, the suit gets dismissed.
Parties have invoked the TCPA with increasing creativity (likely well beyond the intentions of the drafters) as a tool to attack claims and obtain early dismissal without ever touching the merits. But there has been confusion as to the evidentiary burden required under a TCPA motion to dismiss.
On April 24, 2015, the Texas Supreme Court issued two opinions giving better clarity for parties dealing with the TCPA.
First, in In re Steve Lipsky, No 13-0928, the supreme court resolved the split among the courts of appeals as to what types of evidence constitute "clear and specific evidence" (the required threshold to defeat a TCPA motion to dismiss). Some courts said only direct evidence would suffice; others permitted circumstantial evidence, as well.
The supreme court sided with the broader scope of evidence, holding that "clear and specific evidence" under the TCPA can include relevant circumstantial evidence, not just direct evidence. Circumstantial evidence is "indirect evidence that creates an inference to establish a central fact. It is admissible unless the connection between the fact and the inference is too weak to be of help in deciding the case."
Noting that "clear and specific" is not the same as "clear and convincing," the court emphasized that the purpose of the TCPA is to prevent speech from being chilled, not to dismiss otherwise meritorious lawsuits. The court reasoned that excluding circumstantial evidence and precluding the court from drawing rational inferences from evidence and pleadings would "impose a higher burden of proof than required of the plaintiff at trial." This would be "nonsensical."
Applying this standard to the business disparagement and defamation claims at hand (involving the famous burning-tap-water video allegedly caused by fracking), the court found the movant had failed to provide clear and specific evidence of a prima facie case of business disparagement, but satisfied the burden on defamation per se. Of particular note on the business-disparagement claim, the court found that an affidavit stating that the company had "suffered direct pecuniary and economic losses" (special damages being an element of this claim) was conclusory. Without specific facts showing how the alleged disparagement caused the economic damages, the movant failed to meet the "clear and specific" threshold. The court held, however, the defamation claim met the TCPA standard in part because actual damages are not required for defamation per se.
Second, in Lippincott v. Wishenhut, No. 13-092, the supreme court clarified that "communications" falling within the protections of the TCPA do not have to be in a public forum—they need only involve a public subject. Thus, even private communications can give rise to a TCPA motion to dismiss.
These two opinions—in particular Lipsky—provide needed clarification for parties facing or invoking a TCPA motion to dismiss. The evidentiary burden imposed by some intermediate courts has been lowered. But it's not a cakewalk, as the Lipsky case shows. A TCPA motion to dismiss can still present a serious advantage or risk (depending on your side). In cases touching upon "matters of public concern," parties need to consider whether the TCPA could play a potentially game-changing role.
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