 This week's conversation is sponsored by Trinity Market at Trinity University. So we're here at Nowcast SA Studios on the sixth floor of Central Library, and we're having a conversation about slap suits, strategic lawsuits against public participation. With me today is Alicia Calzada, a former photojournalist who is now a first amendment attorney with Haynes and Boones in the San Antonio office, right? And also a state representative, Diego Bernal, who represents District 1, 2, 3. And he's also an attorney and a former San Antonio City Councilman. Alicia, you were instrumental in getting Texas to pass a law against slap suits. Tell me what's behind that and how the bill came about. Sure, Texas and many other states have been plagued with lawsuits that were not based on merit, but had been filed as a way of punishing people for exercising their first amendment right. And for about 10 years, my boss Lord Praetor had been trying to get a law passed, an anti-slap law passed here in Texas based on the one that's in California. And the California's had an anti-slap law for about 10 years. The lawmakers in Texas in 2011 saw some great testimony and just heard some very compelling stories about how people were just driven to hundreds of thousands of dollars in expense in retaliatory lawsuits for things like speaking out against their homeowners association or media companies who report on Medicaid fraud and are getting sued, that kind of thing. And so the legislature unanimously passed in both houses the Texas Citizens Participation Act. And the TCPA or the Texas Citizen Participation Act is an anti-slap law. It's a type of anti-slap law. And what it does is it allows somebody who's been sued for activities or communications based on their first amendment rights to ask for an early dismissal at which point the plaintiff has to demonstrate that there's some kind of a case there. They have to present evidence of elements of what's called a prima facie case. So basically what that means is they have to show the court that there is something here. This isn't just me trying to charge you with a big penalty of hassle as a way of bullying you to shut up. And that's really how it came about. I mean that these suits were being filed as a means of bullying people who were speaking out, whether it was news organizations or whether it was you said someone speaking out about their homeowners association and saying just being exercising their first amendment rights, right? Yeah, there was a woman that testified at the Senate hearings in 2011 who had been sued by her homeowners association for putting signs in her yard. And I think they sued her even for RICO. I mean just all kinds of crazy stuff. RICO being under racketeering law. And so she was a great example of somebody who'd just been devastated by the ability of people to just go into the courthouse and file a lawsuit. Because most of us feel like well as anybody can file a lawsuit and then it's up to me and all the expenses on me to try to defend myself against this lawsuit even if the lawsuit is simply something that is designed to bully me or shut me up. Yes, exactly. And so what the Anti Slap Law Texas Citizens Participation Act does is turns that around and says to the person who filed the lawsuit, prove that you have a real case, right? One of the real important elements of the Texas Citizens Participation Act is if it gets dismissed, then the plaintiff who forced you to go and hire a lawyer and defend yourself can be assessed with attorney's fees against the defendant. And so one of the things this has done is it's caused people really to think twice when they're filing a lawsuit that is connected to your First Amendment rights. That's terrific. So Representative Bernal, you and State Senator Menendez just issued some educational material to focus about this. Right, we made a bilingual flyer designed to let community members know what their rights are and participating, let's say, in a designated city process, for example, is a protected act that there's nothing illegal about it. And so if they're threatened with a lawsuit or actually sued that they have protections and should know that going forward, it also is a way for them to know that in the event someone friends them with the lawsuit, they can say, hey, hey, I know what you're doing and just know that I know my rights and I think you might be up to no good. And sometimes that alone gets people to back off. To letting them know that you do know your rights, right? That's right. Right. And this is important because... Well, first of all, it's important for people to always know their rights, especially with something as important as the cornerstone of who we are as a country, as the First Amendment. You know, in the office, you're sort of a folk hero because it's so important to us. But this really came about because there was a actual situation where there was a neighborhood association that was opposing an element of a developer's project and they lost the first round of it and were about to appeal to the Board of Adjustments the second round. Under a formal city process. A formal city process. And the developer had his attorney send them a letter saying, if you don't withdraw your appeal, I'm going to sue you. And he sent it to the association and individual members. And they backed off. And what was striking to me about that was this was a neighborhood that is full of professionals, attorneys even, architects, people in the medical field. And I thought, all right, so if this is happening here and they were scared enough or shaken enough to back off, you go to one neighborhood to the west, east to the south, and those places are even more vulnerable. And so we wanted to make sure that all of these people knew that engaging in a process as straightforward as that was a protected act, that threat was illegal, a lawsuit would certainly be illegal. And at the minimum, because of the state law, the state senator I decided, we need to make sure they know what their rights are. That engaging those processes are is a protected act and it's legal and they should feel secure in doing it. And so we just created this quick flyer and we made it English and Spanish and we've been passing it out ever since. But it's also what it's done is it's brought us together to think about what else we can do in the coming legislative session where we can make this even stronger. So a good relationship has come from that also. It's been really nice for us. Well, that's terrific. I mean, because one of the things that I'd heard was that Texas has one of the strongest anti-slap suits in the country, which is terrific. But more can be done, you think. Right. I mean, I think that the law itself is very, very strong, but that doesn't necessarily mean that it's as user-friendly or that the process itself is user-friendly. The courts are not always user-friendly, especially to vulnerable folks or folks who don't have a lot of resources who can't afford to go and get an attorney. So we've been talking about ways to make that process even easier and honestly cheaper for them. And she's been amazing. I'll let you talk about that. Yeah, well, and to be clear, we're not talking about changing the legislation itself or the statute itself. What we've been talking about is ways to help people use it to their benefit more and ways that the legislature or the court system can assist them with that because it is a really powerful law and it was designed to help the everyday person who probably can't come to me and hire me to help them necessarily. Although we certainly consult with people all the time to pass out information to folks when asked. And we work with other lawyers around the state if they have questions about the statute and that kind of thing. So the idea is really to see how we can make sure that this statute is accessible to everyone who could potentially use it. And so I'm pretty excited about what we've been working on. That's absolutely terrific because, yes, and it goes back to the well-educated members of that neighborhood association didn't know and didn't know what was available to them and also may have felt like the barriers were too high. So knowing that the barriers may not be as high or making those barriers, making people better aware of how they can get through those barriers is really, really important. Right now there's still to some degree, you're not always going to be around the state, you're not always going to be able to find those as rich as this one. It's someone who is willing to do it pro bono and who knows it that well. So to the degree that someone still has to go and hire an attorney just to get in the courtroom door and make their case to the judge, we want to find a way to democratize that. So the cost of entry is lower. There's a lot of different ways to try to do that, but we're being experimental and thoughtful about it. But if you looked it up to me by myself, I'd totally mess it up. I don't know what you're referring to and all of a sudden things get better. Well, let's go back to who your firm just did. It's been five years now, right? It's been five years since this law passed. And your firm just did a recap of what's happened in those five years. Talk to me about some of the kinds of people this has helped. Yeah, it's been a huge range as expected. When we went to the legislature five years ago and said we want you to pass this law, we think it's important. We brought to them examples or people even showed up on their own when they heard about it, examples from the whole spectrum, as I said, individuals who've been targeted by for speaking out about their homes and stuff like that to large media corporations. And sure enough that has played out in the last five years. So a huge range of people, homeowners, bloggers, a lot of folks who say comment on a business on Yelp or Yahoo comments or Google reviews or something like that. A business owner say doesn't like what they say and they might threaten to sue them or actually do it. So that's a perfect classic example of a slap suit. And a person who is just an ordinary person going about their business of writing a Yelp review and suddenly faced with a lawsuit. And to be clear, you don't have a right to defame somebody and write things or write Yelp reviews that are blatantly untrue and defamatory. But if you're writing a truthful review and you're representing your opinion and saying, well, they did things this way and I didn't really like it or whatever, that's protected. And so we have certainly seen a lot of people in that situation who've taken advantage of the statute and certainly we've had media companies who've reported on things people don't like hearing the truth about themselves, frankly. And so there have been a lot of situations where companies didn't really like when certain information came out about them and so they've tried to sue and we've been able to use the anti-slab law to prevent that. The Better Business Bureau has made use of the law quite a bit. Again, people don't like it when you talk about their business in a way that doesn't make them look shining. But that's our country as we're allowed to do that. You mentioned also bloggers and I have to say as an independent publisher, I know one of my fellows, the Austin Bulldog publisher, also actually your colleague in Austin represented him and he won a suit and was awarded $10,000 in attorney's fees as a result of the action that she helped him bring against. So, I mean, it goes all over the place and it's up close and personal to publishers as well. So that's terrific. When somebody uses the slap law, how does it work? Or the anti-slab law. Sure. The anti-slab law comes into play after a lawsuit is filed against you. So somebody would file a lawsuit against you and then you would file an anti-slab motion that says this lawsuit looks like it was based on my communication, the right to free speech or the right to petition or the right of association. So if a lawsuit is based on any of those things, you can file an anti-slab law and it's the burden of the defendant to say the statute applies. So you would have to actually have, that's what you're talking about, have an attorney help file a motion or you could do it yourself? Well, plenty of people have done it themselves. It's pretty tricky, some of the elements of the law and so it's very good to get the help of a lawyer if you can because you don't want to make a wrong step. Right. One of the strengths of the law though is that in this particular instance the process to respond is truncated as opposed to a more traditional lawsuit. And a more traditional lawsuit, sometimes it takes a few steps to get to that point and here you get that option right away to jump in and push back. Is it within like 60 days or something? 60 days, yeah. So you file a motion within 60 days and importantly it stops all discovery. One of the most expensive things of a lawsuit is discovery and so if you're doing depositions and discovery, that drives up the cost of a lawsuit significantly. An anti-slab motion will cut off discovery and force the other side to say, look I have the very basics of a lawsuit here and so we can proceed or I don't which is often the case frankly and then they can all under proceed. And another great thing about the law is that if you succeed in your anti-slab motion then the plaintiff who's been determined to file a slap to the Institute will be assessed with your attorney's feet and possibly sanctions. The law also works before that so there's being sued and then there's being threatened with a lawsuit which is what often happens and the law that she helped craft in the past also protects people from that. So sometimes just the knowledge of what a slap lawsuit is and letting them know that you know helps push them back because you're saying I know what you're up to and you're up to no good and just know that I have this protection so if you want to get it on we can do that but when they find out that you're aware sometimes that's enough to scare them off. And to just prevent the whole thing from happening to begin with, right? That's why the public awareness is so important is to get ahead of that piece. And we've definitely had circumstances at our firm where someone has called us and said I've been threatened with a lawsuit and we've responded to the person who threatened them or the company that's threatened them and pointed out the law and in one case I got a call back from a opposing counsel I wasn't going to sue, I wasn't going to sue. Good. Now I know you won't. Exactly. And it's nice because even if you win an anti-slap motion or you win the lawsuit or you win on summary judgment once you've been involved in a lawsuit it's not a pleasant experience and so regardless of whether you're going to win at the end or not it's a deterrent to speaking out and speaking freely and I have plenty of people who call me and say I know you can file this anti-slap motion for me I know I have rights I know I would win but you know what I'm going to take down that review because I just don't want the hassle or the expense or the risk. And so you can imagine in a sort of private setting whether it's Yelp or Yahoo or Google how that would happen but if you're a neighborhood, if you're engaging in a government process if you're showing up to citizens to be heard or you're making comments to the state legislature that's a whole different realm and people, regardless of their opinion or their political persuasion they shouldn't be required to have that conversation much less than someone else and so that's also where we sort of fit in and that prong of the statute we talk a lot about the right to free speech but the right to petition your government, the right to go to your representative or go to your city council or go to the historic district and participate in the processes I mean that's the foundation of our society So I'm really proud of Texas for doing this That's terrific I always love hearing when the state did something right Thank you both so much for being here I really appreciate it and we'll embed a link where people can find some more information on this Alright, thanks a lot