Good news for Texans who like their speech free. Three bills that would have gutted speech protections under the Texas Citizens Participation Act are officially dead in the water.
At the start of the 2025 legislative session, FIRE teamed up with the Protect Free Speech Coalition — a broad coalition of civil liberties groups, news outlets, and other organizations that support free speech in Texas — to fight these bills.
The TCPA protects free speech by deterring frivolous lawsuits, or SLAPPs (strategic lawsuits against public participation), intended to silence citizens with the threat of court costs.
SLAPPs are censorship disguised as lawsuits. And laws like the TCPA are a vital defense against them.
The first bill, HB 2988, would have eroded the TCPA by cutting its provision of mandatory attorney fees for speakers who successfully get a SLAPP dismissed.
That provision ensures two very important things.
First, it makes potential SLAPP filers think twice before suing. The prospect of having to pay attorney’s fees for suing over protected speech causes would-be SLAPP filers to back off.
Second, when a SLAPP is filed, mandatory fees ensure the victim can afford to defend their First Amendment rights. They no longer face the impossible choice between self-censorship and blowing their life savings on legal fees. Instead, they can fight back, knowing that they can recover their legal fees when they successfully defend their constitutionally protected expression against a baseless lawsuit.
Even though the Constitution — and not one’s finances — guarantees the freedom to speak out about issues affecting their community and government, making TCPA fee-shifting discretionary would have undermined that freedom for all but the most deep-pocketed Texans.
FIRE’s own JT Morris testified in opposition to HB 2988 when it received a hearing in the Judiciary & Civil Jurisprudence committee.
The other two bills — SB 336 and HB 2459 — would have made it easier for SLAPP filers to run up their victim’s legal bills before the case gets dismissed, thereby putting pressure on victims to settle and give up their rights.
Since last fall, FIRE has been working with the Protect Free Speech Coalition to oppose these bills. We’ve met with lawmakers, testified in committee, publishedcommentary, and driven grassroots opposition.
All three bills are now officially dead for the 2025 legislative session, which ends today. That means one of the strongest anti-SLAPP laws in the country remains intact and Texans can continue speaking freely without fear of ruinous litigation.
Make no mistake: SLAPPs are censorship disguised as lawsuits. And laws like the TCPA are a vital defense against them. That defense still stands. And the First Amendment still protects you and your speech on important public issues — no matter how much money’s in your wallet.
Fourteen years ago, the legislature passed vital protections for freedom of speech in the Texas Citizens Participation Act. This week, they’re looking to gut it.
The TCPA addresses the common problem of strategic lawsuits against public participation, or SLAPPs. These are frivolous lawsuits brought by the wealthy or powerful against private citizens to stop them from exercising their free speech rights.
For example, say your loved one is in an assisted living facility, and you think the facility is neglecting their care. You file a complaint with state regulators and then post honest, negative reviews of the facility online so that other people can make an informed choice about sending their family members there.
Then the facility sues you, claiming that you defamed them. Even though the case is frivolous, and your criticism is protected by the First Amendment, you have a tough choice: stop talking about the facility or hire an attorney to defend you. You don’t want to be silenced, but you don’t want to go through a lengthy, expensive, and exhausting legal battle.
This was the choice facing Carol Hemphill when she was sued for criticizing the facility housing her brother, who needed daily care after a traumatic brain injury.
Thankfully, the TCPA helps people like Hemphill. It allows SLAPP victims to get cases dismissed quickly, without racking up huge legal bills. It also helps the victims get lawyers to stand up to the bullies trying to silence them through the courts.
First, the TCPA lets a victim immediately move to dismiss the case if they can show the claim is meritless and targets their speech on issues important to the community. Then, if the court denies the motion to dismiss, there’s another layer of protection. The law automatically pauses any further court proceedings while the victim appeals the ruling, so that the case doesn’t turn into a sprawling legal battle before the court of appeals gets the chance to toss it out.
When a victim successfully gets the case dismissed, the TCPA also requires the other side to pay their legal bills. This helps ensure SLAPP victims can afford legal representation to fight the case, and it deters people from filing SLAPPs in the first place. Plus, it’s just basic fairness: if someone deliberately brings a frivolous SLAPP against you, they should reimburse you for the costs of getting it dismissed.
These protections ensure that everyone, not just those with money, can afford to fight for their rights. They helped Hemphill get her case dismissed and her legal bills paid. They helped Ken Martin, an independent local journalist, who was sued by a politician for reporting factual information about him. And they helped Dante Flores-Demarchi, who was sued by a wealthy school board member for publicly raising concerns about corruption.
In addition to protecting individual victims, the TCPA protects a culture of open political discourse. In 2023, John Seago, the president of Texas Right to Life, testified against amending the TCPA because of its importance to individuals and organizations that work on important political issues. He testified that he, his organization, and other Texans had been hit with 19 different lawsuits simply for speaking about abortion after passage of the Texas Heartbeat Act, which banned most abortions in the state. “We turned to the TCPA since we were being targeted simply for our activism,” he said last year.
Despite this enormous success, the legislature is currently considering bills to tear chunks out of the TCPA.
This week, a House committee is going to vote on HB 2988, from Rep. Mano DeAyala, R-Houston, which would end the requirement for people who file SLAPPs to pay the other side’s legal bills when the case is dismissed. This would make it harder for SLAPP victims to get lawyers to defend their free speech rights, and invite more suits aimed at silencing people — a fundamental encroachment of constitutional rights.
In the coming weeks, we expect other committees to take up SB 336/HB 2459. The bills, authored by Sen. Bryan Hughes, R-Mineola, and Rep. Jeff Leach, R-Plano, would remove the TCPA’s automatic pause while a victim appeals their motion to dismiss the SLAPP.
The only people who benefit from weakening these parts of the TCPA are those with deep pockets who want to abuse the courts to silence their opponents. For those people, these bills are a gift.
For Texans like Hemphill, who just want to speak their mind without being hauled into court, they’re a slap in the face.
J. Ann Selzer planned to step back from election polling at the end of 2024. She had spent three decades working with The Des Moines Register and other media outlets, earning a reputation as “the best pollster in politics” for her consistent and reliable work. Selzer’s polls had correctly predicted the winner of every presidential race in Iowa since 2008, and she was hoping to end her election-related work with one last accurate survey of public opinion.
“Polling is a science of estimation, and science has a way of periodically humbling the scientist,” she said in a November 17 farewell column for The Register. “So, I’m humbled, yet always willing to learn from unexpected findings.”
Iowa pollster J. Ann Selzer
President Donald Trump, however, doesn’t seem to think “humbled” is enough. That same day, Trump took to Truth Social to accuse Selzer of intentionally fabricating her poll and committing possible election fraud. A month later, he sued Selzer and The Register for alleged election interference and violations of the Iowa Consumer Fraud Act.
It’s difficult to imagine a more thorough and obvious violation of basic First Amendment principles than this lawsuit. Polling the electorate is election participation, not interference—and reporting your findings is protected speech whether your findings turn out to be right or wrong. Iowa’s laws on election “interference” are about conduct such as using a counterfeit ballot or changing someone else’s ballot. This does not and cannot include asking voters questions about their votes.
Any attempt to punish and chill reporting of unfavorable news or opinion is an affront to the First Amendment. Our rights as Americans, and participants in our democracy, depend on it.
Trump’s claims of consumer fraud have even less merit. Consumer fraud laws target sellers who make false statements or engage in deception to get you to buy something, like a sleazy car salesman rolling back the odometer on an old sedan. This cannot logically—or legally—apply to a newspaper pollster who makes a wrong prediction.
Consumer fraud statutes have no place in American politics or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech. For example, a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary. And attorneys general on the right used the same, “We’re just punishing falsehoods” theory to target progressive outlets. Both Missouri Attorney General Andrew Bailey and Texas Attorney General Ken Paxton opened investigations into the nonprofit Media Matters for America for allegedly manipulating X’s algorithm with “inauthentic behavior.” In the Texas suit, Paxton argues that he can use the state’s Deceptive Trade Practices Act to punish speech even if it is “literally true,” so long as officials think it’s misleading.
Efforts to prohibit purportedly false statements in politics are as old as the republic. Indeed, our First Amendment tradition originated from colonial officials’ early attempts to use libel laws against the press.
America rejected this censorship after officials used the Sedition Act of 1798 to jail newspaper editors for publishing “false” and “malicious” criticisms of President John Adams. After Thomas Jefferson defeated Adams in the election of 1800, he pardoned and remitted the fines of those convicted, writing that he considered the act “to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
Trump’s allegations against Selzer are so baseless that you’d be forgiven for wondering why he even bothered. That is, until you realize that these claims are filed not because they have any merit or stand any chance of success, but in order to impose punishing litigation costs on his perceived opponents. The lawsuit is the punishment.
Lawsuits are costly, time-consuming, and often disastrous to people’s personal lives and reputations. If you have the threat of legal action hanging over you for what you’re about to say, you will think twice before saying it—and that’s the point.
In fact, Trump has a habit of doing this. He once sued an architecture columnist for calling a proposed Trump building “one of the silliest things anyone could inflict on New York or any other city.” The suit was dismissed. He also sued author Timothy L. O’Brien, business reporter at The New York Times and author of “TrumpNation: The Art of Being The Donald,” for writing that Trump’s net worth was much lower than he had publicly claimed. The suit was also dismissed.
But winning those lawsuits wasn’t the point, and Trump himself said so. “I spent a couple of bucks on legal fees, and they spent a whole lot more,” he said. “I did it to make his life miserable, which I’m happy about.” Back in 2015, he even threatened to sue John Kasich, then-governor of Ohio and a fellow Republican candidate for president, “just for fun” because of his attack ads.
This tactic is called a “strategic lawsuit against public participation,” or SLAPP for short, and it’s a tried-and-true way for wealthy and powerful people to punish their perceived enemies for their protected speech. It’s also a serious threat to open discourse and a violation of our First Amendment freedoms.
FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101
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A polling miss isn’t ‘consumer fraud’ or ‘election interference’ — it’s just a prediction and is protected by the First Amendment.
Lawsuits are costly, time-consuming, and often disastrous to people’s personal lives and reputations. If you have the threat of legal action hanging over you for what you’re about to say, you will think twice before saying it—and that’s the point. Trump’s dubious legal theory is a blatant abuse of the legal process, one that we cannot let stand. If we sued people every time we thought someone else was wrong about politics, nobody would speak about politics. A lawsuit requires a credible basis to believe your rights have been violated. You have to bring facts to court, not baseless allegations.
That is why my organization, the Foundation for Individual Rights and Expression (FIRE), is defending Selzer pro bono against Trump’s SLAPP suit. By providing legal support free of charge, we’re helping to remove the financial incentive of SLAPP suits—just as we did when a wealthy Idaho landowner sued over criticism of his planned airstrip, when a Reddit moderator was sued for criticizing a self-proclaimed scientist, and when a Pennsylvania lawmaker sued a graduate student for “racketeering.”
The protection of unfettered freedom of expression is critical to our political process. Any attempt to punish and chill reporting of unfavorable news or opinion is an affront to the First Amendment. Our rights as Americans, and participants in our democracy, depend on it.