The 2019 Texas Legislative session will be remembered for several hard-won victories by a coalition of advocates for free expression, news reporting, and open access to government records led by Jackson Walker client the Texas Association of Broadcasters (TAB). Among these were several priorities for the TAB, including some unfinished business from 2017 aimed at restoring Texans’ right to know how their government is spending their money in the wake of two unfortunate Texas Supreme Court decisions in 2015. But blocking and tackling proved equally important to protect one of the strongest anti-SLAPP statutes in the nation from being gutted by amendments which would have undermined vital protections afforded to the press and other speakers from the withering cost of defending against meritless lawsuits aimed at silencing them.
The Texas Citizens Participation Act (TCPA) provides defendants sued as a result of their exercise of constitutionally guaranteed rights of free expression an opportunity to test the merits of such claims by forcing plaintiffs to show their evidence early in the course of such lawsuits, before substantial defense costs and attorneys’ fees are incurred. Without this protection, the prospect of crushing litigation expenses can have a deterrent effect on newsrooms and independent journalists reporting on matters of public concern. Unhappy with losing the valuable weapon that litigation provides, those interested in suppressing speech sought numerous amendments to the TCPA which would have robbed the statute of its teeth. By a concerted effort, a coalition including TAB succeeded not only in fending off the worst of those amendments, but in actually improving the protections afforded journalists by including the definition of “matter of public concern” recently adopted by the U.S. Supreme Court, among other beneficial changes which make clear that the TCPA applies to news reporting.
In 2015, the Texas Supreme Court issued two decisions (known as Boeing and Greater Houston Partnership) which made it a practical impossibility for the public to obtain records concerning taxpayer funds spent on government contracts with private companies and by private municipal development groups. SB 943 effectively reversed those decisions by amending the Texas Public Information Act (TPIA) to restore the right of citizens to obtain copies of final contracts entered into by government agencies with private companies providing products or services, and restoring access to records of private development coalitions spending public funds to persuade businesses to relocate. Another priority was achieved by the passage of SB 944, which plugged a TPIA loophole by requiring that records concerning public business that are in private email accounts or held on private electronic devices by officials be turned over in response to a TPIA request for documents. And in a nimble move, TAB turned on a dime when the Court of Criminal Appeals ruled on February 27, 2019, that the prohibition on “walking quorums” in the Texas Open Meetings Act was unconstitutional, responding with SB 1640 which cured the identified statutory defect without having to wait for 2021.
It was my privilege as it has been in years past to testify both for and against bills on TAB’s behalf in what turned out to be a landmark session for free speech and press rights in Texas.
