Marcus Winkler from Pixabay

Imagine being the target of a vexatious lawsuit completely without merit in which you ultimately prevail—only to find out that you not only have to pay your attorney’s fees but also the other side’s. 

That’s the likely outcome if the Texas Legislature passes HB 2988 this session.

The bill, sponsored by Rep. Mano DeAyala, R-Houston, would gut the Texas Citizens Participation Act, leaving it basically toothless.

Right now, if Texans speak out on an issue of public importance and are sued because of that criticism, they have strong legal protections under the TCPA to help them head off meritless lawsuits designed to punish them for their speech. 

The TCPA and laws like it protect both conservatives and liberals from being targeted by their political opponents. 

In 2018, adult entertainment star Stormy Daniels was ordered to pay Donald Trump’s legal team nearly $300,000 under the TCPA while a Texas appeals court relied on the law in 2024 to dismiss a famed Houston heart surgeon’s lawsuit against the Houston Chronicle and ProPublica for their coverage of allegations of potential wrongdoing.  

More importantly, once Texans succeed in fending off the frivolous lawsuit, the law requires the plaintiff to pay the defendants’ legal fees. Because of this, the TCPA’s ultimate effect is to deter meritless lawsuits. 

A 2023 report by the Institute for Free Speech estimated the median cost of defending a meritless defamation lawsuit at around $39,000, but the report noted costs could run into the millions. 

But Rep. DeAyala’s bill would change that by making the award of attorney’s fees discretionary rather than mandatory. Even worse, it could allow plaintiffs to try to force defendants to pay the plaintiffs’ legal costs or give courts a mechanism to punish speakers with whom they disagree, dramatically chilling free speech.

Texas isn’t alone in having this mandatory ‘fee-shifting’ provision, as it’s called. Right now, 35 U.S. states have laws similar to the TCPA, and the Institute for Free Speech found the majority of them—certainly the ones that provide the most protection for free speech—also require unsuccessful plaintiffs to pay the defendant’s attorney’s fees.

The sole purpose of these vexatious lawsuits is to chill free expression and punish Texans who speak out by forcing them to endure the massive legal costs associated with defending themselves in court. Plain and simple, if HB 2988 becomes law, everyday Texans who choose to exercise their free speech rights will do so at their peril and will surely face more lawsuits.

Removing the mandatory fee-shifting provision takes away the most critical aspect of the law—the part that serves to deter these meritless and anti-democratic attempts to silence Texans and punishes those plaintiffs who insist on filing them.

“It is this mandatory award that provides the TCPA its teeth for the benefit of the successful movant,” wrote Houston trial attorney James Walker in a Texas Bar opinion column. 

This doesn’t mean that attorneys can submit astronomical bills and expect a windfall under the fee-shifting provision. Instead, the law limits the defendant’s recovery to “reasonable” fees only after the court has dismissed the frivolous lawsuit.

The Texas Supreme Court affirmed this position in Sullivan v. Abraham (2016) when it ruled that the courts have the sole discretion to determine whether fees are reasonable.

All Texans deserve the right to freely criticize their government and speak out on issues of importance in their communities without the fear of being dragged into court. 

It’s not too late to let Rep. DeAyala and your state lawmakers know that HB2988 would undermine the TCPA and chill free speech in the Lone Star state.

By Amy Kristin Sanders, the John and Ann Curley Chair in First Amendment at Penn State as well as a licensed attorney and former journalist. 

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