Freedom of speech and thought lie at the core of liberty. Though many philosophers, statesmen, and legal practitioners have opined on the value of free speech and thought, Justice Louis Brandies best captured the value of free speech and thought in our constitutional scheme:
Those who won our independence believed that the final end of the state was to make [people] free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. . . They believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.
Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
Despite its central place in our constitutional scheme, the right to free speech is extremely fragile. Government imposed limitations to speech and thought sometimes elude detection, because government does not always directly regulate speech and, even when it does, the limitations are not always obvious. Notwithstanding the sometimes opaque nature of direct impositions, a major threat to speech and thought comes from indirect government impositions.
SLAPP Suits as Indirect Government Impositions to Speech
Strategic litigation against public participation (SLAPP) provides one example of an indirect governmentally-imposed limitation to speech and thought. These are suits brought by one party in an effort to silence another party against whom the suit is filed. The prototypical SLAPP suit involves a defamation claim against the defendant. Though government is not directly involved in chilling or silencing the defendant’s speech, the judicial system is the means by which the plaintiff chills or silences the defendant’s speech. The threat of a potential judgment looming over the defendant implicates the government in the plaintiff’s effort to chill or silence the defendant’s speech.
Texas’ Anti-SLAPP Legislation
Texas enacted Anti-SLAPP legislation to curb litigants’ efforts to employ the judicial system as a means to silence or chill another’s speech. The Texas Citizens Participation Act (TCPA) provides pretrial procedural checks against litigation designed to chill a party’s right to free speech, among other first Amendment rights. See Tex. Civ. Prac. & Rem. Code §§ 27.001-011. The Act allows a party to file a motion to dismiss the case, with an award of attorney fees and costs to the movant if successful on the motion.
This procedure is available to any party, regardless of whether it is an individual or entity and regardless of whether the suit is against the person for an act committed in his or her individual capacity or in his or her capacity as a member of the electronic or print media. There are, however, four exemptions. Commercial speech falls outside the TCPA. Suits for bodily injury, wrongful death, or survival also fall outside of the TCPA, as do insurance code suits or actions arising out of insurance contracts. Enforcement actions by the state also do not fall within the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.010(a)-(d).
The Act also provides pretrial appellate procedural checks against suspected SLAPP suits. If the party alleging a First Amendment right violation is unsuccessful in his motion to dismiss, that party may take an automatic, accelerated interlocutory appeal on the trial court’s denial of the motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 27.008, 51.014(a)(12). Again, this appellate procedure is available to any party asserting a violation of his right to free speech, association, or to petition government.
The Texas Civil Practice and Remedies Code provides an additional appellate procedure to members “of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media.” Tex. Civ. Prac. & Rem. Code § 51.014(a)(6). If a party falls into this select category, that party may take an automatic, accelerated interlocutory appeal on a trial court’s denial of a motion for summary judgment based on a claim or defense arising under the free speech or press clause of the First Amendment. Id.
Speaker Favoritism in Texas’ Anti-SLAPP Appellate Procedure
The significance of this additional appellate procedure for members of the electronic or print media, and for a person whose article appears in electronic or print media, is that this select group gets two bites at the appellate apple by way of an automatic interlocutory appeal. If, for example, a person is sued for defamation for his op-ed piece published online, he may file a motion to dismiss and subsequently appeal the trial court’s denial without first seeking permission to take the issue on interlocutory appeal. Even if he loses the first interlocutory appeal, he may then file a motion for summary judgment and subsequently appeal the trial court’s denial again without seeking permission to take the issue on interlocutory appeal.
Parties who do not fall within this select group get one-shot at an automatic, accelerated interlocutory appeal. Though TCPR section 51.014(a)(6) aims to keep free speech channels open, it only does so for a select group of speakers. All other speakers are directly excluded. So this raises the question, is section 51.014(a)(6) an example of unconstitutional speaker-based discrimination?
The United States Supreme Court has held that it is “axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Following this precept, government “may not favor one speaker over another.” Id. Government action that discriminates against speech based on its message is presumed unconstitutional. Id. Viewpoint discrimination, however, is a more egregious form of content discrimination: “When the government targets not subject matter, but particular views [or ideology, opinion, or perspective] taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Id.; see also R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).
So far, lower courts have only obliquely grazed this issue. In Main v. Royall, for example, the Dallas Court of Appeals had to decide whether book authors and publishers fell within section 51.014(a)(6)’s scope, i.e., whether they could be construed as members of the electronic or print media. 348 S.W.3d 381 (Tex. App.–Dallas 2011, no pet.). The court focused on the legislative purpose driving section 51.014(a)(6)—“to provide members of the media with a mechanism to obtain immediate appellate review . . . of issues arising under the free speech and free press clause [to] avoid the time and expense of a trial when the defendant may be entitled to a constitutional or statutory privilege precluding liability”— and held that book authors and publishers comfortably fit into the forms of media protected by the statute. Id. at 386-87.
The court dismissed the plaintiff’s argument that applying the statute to book authors would require future courts to apply the statute to anyone “with a computer, typewriter, or printer” and exclude only those persons writing by pen and pencil. Id. This latter issue was one the court did not have to decide to dispose of the matter. Id. But it is an issue that the courts must, at some point, confront.
Perhaps a court may construe section 51.014(a)(6) to apply to any person writing by way of computer, or typewriter, and, perhaps a court may construe the statute to reach people writing with a pen or pencil. The statute clearly excludes oral communications made outside of the presence of cameras, computers, or other media. The statute would also likely not apply to any communication between persons by way of text message.
Selective procedural protection under section 51.014(a)(6) raises three related problems: First, affording media personnel and outlets additional First Amendment protection over ordinary citizens raises the specter of favored viewpoints, which is odious to the First Amendment. Perhaps more people value an opinion piece published on CNN.com over a competing opinion posted on a neighbor’s personal blog. The value in securing an equal opportunity for your neighbor publicly to voice his opinions and concerns lies in part in the act itself, an act of civic engagement; and in part on the content itself, which promotes the search for truth and contributes to the market place of ideas; and, finally, in part on its secondary function, as a means through which ordinary citizens can improve journalistic rigor—an often neglected value in the age of “fake news”—and political governance.
Second, and related to the importance of civic engagement, affording “media” outlets and personnel greater First Amendment protection than ordinary citizens adds to civil discord and distrust. Even before, but far more after the Supreme Court decided Citizens United v. Federal Election Commission, there has been public clamor over corporate influence in government and money-backed interests potentially undermining our democratic processes. That The Dallas Morning News is part of the press and, thereby, explicitly protected by the First Amendment should not veil the fact that The Dallas Morning News is a for-profit corporate body, owned by A.H. Belo Corporation. And, tellingly, section 51.014(a)(6) was enacted to afford extra First Amendment protection to media outlets eighteen (18) years before similar, though not the same, protection was afforded to every other person in section 27. Freedom of the press, freedom of speech, and the right to petition the government are inseparable rights, entitled to equal constitutional protection, not one greater than the other. See McDonald v. Smith, 472 U.S. 479, 482-485 (1985).
Third, and related to the second, section 51.014(a)(6) provides less protection to the people who often need the most protection from baseless suits designed to silence them. It was not lost on the legislature when it passed section 51.014 that litigation costs alone are speech prohibitive. See House research Org., Bill Analysis, Tex. S.B. 76, 73rd Leg., R.S. (41) (stating that the purpose of the section is “to allow a newspaper, radio station or television station that was sued for libel to make an immediate appeal of a judge’s refusal to grant a summary judgment” so that an appellate court may “sort out unmeritorious libel cases before a case enters the time-consuming and expensive trial phase.”). Although section 27.003 affords every person similar protection to section 51.014(a)(6), only media parties have the option to allow the sixty-day deadline to file a motion to dismiss to pass and, instead, opt into some discovery to file an informed summary judgment motion, leveraging an automatic and accelerated appeal against both the non-movant and the trial judge. If an ordinary citizen loses on a section 27 motion to dismiss and loses on an automatic interlocutory appeal, he must bear the cost of further litigation, all the way to trial if he does not settle or win on summary judgment.
Texas’ Anti-SLAPP scheme provides a necessary check against indirect government impositions to free speech, a free press, and the right to petition the government. Though its direct statutory measures in section 27 afford equal constitutional protection to all parties whose First Amendment rights are threatened by a SLAPP suit, its direct statutory measure in section 51.014(a)(6) favors media speakers over ordinary speakers. Implied in the right to speak is the recipient’s right to listen, a right to receive information; likewise, implied in the right to publish is a right to collect information. See Richmond Newspapers v. Va., 448 U.S. 555, 599 n.15 (1980) (Stewart, J., concurring). When government decides who may speak, it also decides what one may hear; when government decides who may publish and by what means, it also decides what information one may collect to inform his or her understanding of this limited life he or she has. The right to freedom of speech is a very fragile right; one must be on guard to detect subtle impositions to it—indeed, an imposition may sometimes come in the guise of protecting the very right it diminishes.