by Paul Alan Levy
There have been two welcome developments in Texas with respect to the protection of consumer speech about companies and political figures, one in the state supreme court, and one in the state legislature.
In a decision this week, the Texas Supreme Court overturned an order denying motions to quash from two bloggers whose identities were sought in a pre-litigation discovery proceeding. According to the Court’s opinion, Google agreed to the disclosure despite the fact that the bloggers had filed pro se motions to quash. The trial court denied those motions on the ground that the agreement of the two parties to the petition – the would-be plaintiff who filed a motion for pre-litigation discovery, and the respondent from which the discovery was sought — was enough to warrant denying those motions.
The Texas Supreme Court, without reaching the First Amendment issues presented by such discovery, decided that Google’s alleged agreement was not reason enough to compel the discovery without the trial court making the findings or merit and fairness required by the Texas rules of procedure. The case has been remanded to the trial court, where, it is my understanding, the plaintiff is still pursuing the identification of the bloggers.
It is not at all clear that Google agreed to allow the discovery – in fact, Google both moved to quash the subpoena and argued in support of the mandamus petition that the bloggers’ First Amendment rights should be addressed before any discovery is allowed, and Exhbits B and E in the appendix to the mandamus petition show that Google’s procedural agreements with PRK reserved its own right, and the rights of its users, to object to the discovery. But the case is still significant, because there are ISP’s that do not insist on a chance for their users to protect their anonymity rights, and because the Supreme Court decided the case on the theory that Google had agreed.
Anti-SLAPP Statute Progresses in Texas
Several blogs are reporting progress in the effort to pass an anti-SLAPP statute in Texas. A bill has been approved by committees in both the state Senate and state House. The Texas bill seems to be modeled on California’s anti-SLAPP statute in that it broadly protects non-commercial speech on matters of public concern, not just speech directed to government bodies, provides for awards of attorney fees when a SLAPP motion to dismiss is granted, and requires an early look at whether the plaintiff has a realistic change of succeeding based on the evidence that the plaintiff can prsent at the outset of the case.
Obviously, given the danger of plaintiffs forum shopping to find the state with the weakest protections against SLAPP’s, the enactment of a federal anti-SLAPP statute as proposed during the last Congress would be ideal. But given the fact that the move to adopt a federal anti-SLAPP statute seems to have stalled out as Congress confronts other issues, it is good to seek the Texas legislature moving forward to limit attacks on free speech in that state.