Texas is currently one of 35 states with robust legal protections against SLAPP suits. New Texas resident Elon Musk is banding together with entrenched fossil fuel interests in a campaign to roll these protections back.
Texas is considering a sweeping set of legislative changes that would erode First Amendment protections, emboldening corporations and powerful individuals to use retaliatory lawsuits to silence their critics. If passed, the bills could unleash a torrent of defamation attacks against journalists and citizens at a time when major businesses, including Silicon Valley tech giants, are flocking to the state for its business-friendly regulatory and tax environment.
A shadowy cohort of high-net-worth individuals and fossil fuel interests is funding the lobbying groups pushing for these reforms, along with billionaire newcomers to the state like Elon Musk. If the lobbying campaign is successful, similar reforms could sweep across the country as states compete in a race to the bottom to attract businesses.
Yet rolling back constitutional protections at the behest of corporate interests has faced enormous populist opposition, and even within a deep-red state, it is dividing the Republican Party. A grassroots coalition of conservatives, wary of free speech being auctioned off to the highest bidder, has made unlikely allies with liberal nonprofits and media outlets that are equally threatened by the receding legal protections.
It’s become a proxy battle for a much larger civil war playing out nationwide in the Donald Trump era between the Republican Party’s tech-aligned faction trying to expand corporate power and the Right’s populist wing fighting to rein it in.
“The reality is wealthy people don’t need [First Amendment protections]. It’s the little guy who needs them, and it doesn’t matter if you’re left or right,” said Tony McDonald, a lawyer and GOP political insider in Texas who’s represented clients facing retaliation from Strategic Lawsuits Against Public Participation (SLAPP).
A Musk-backed attempt to erode civil liberties in Texas is particularly alarming to First Amendment lawyers as the Trump administration tries to silence its own critics across civil society with the full force of the federal government.
“A Bounty on the Heads of SLAPP Victims”
The Texas bills would expand the legal terrain for SLAPP suits, a type of legal intimidation, most commonly involving claims of defamation, used by business interests against those who’ve spoken out against them. SLAPP suits have been deployed by landlords to scare tenants from speaking out against them at city council meetings; by businesses against the authors of negative Yelp reviews; and by corporate tycoons against journalists and media personalities such as John Oliver.
These cases are usually not meant to win a verdict in court but rather to bully the defendant and inflict monetary damage.
Texas is currently one of thirty-five states where residents have more robust legal protections to ward off these cases. Passed in 2011, the Texas Citizen Participation Act (TCPA) allows targets of retaliatory defamation lawsuits to quickly and easily file motions to dismiss the efforts before being dragged through court.
The goal of these anti-SLAPP laws is to provide a legal bulwark against the onslaught of SLAPP intimidation lawsuits, which have become common with the rise of the internet and online forums that provide more venues for potential lawsuits.
Texas passed its law after a number of high-profile SLAPP cases. One involved author Carla Main, who wrote a nonfiction book in 2007 about the abuse of eminent domain by real estate developers, covering several incidents in Freeport, Texas. In 2008, a developer whose practices were scrutinized in the book sued Main, her publisher, a newspaper that reviewed the book, and a law professor who wrote a blurb on the back jacket.
Main ultimately prevailed in the case on appeal, with all the disputed claims found to be factual. But it took over three years of litigation and significant financial costs. The judge who initially ruled in favor of the developer was in the middle of his own SLAPP lawsuit, yet he didn’t recuse himself from the case. The judge was later pushed off the bench for unrelated improper behavior.
The controversy around Main’s case became a catalyst for reform, and her testimony at one of the state legislature’s hearings in 2011 helped pave the way for passing the Texas Citizen Participation Act, even though it was too late to help her own case.
“If an anti-SLAPP motion had been available to Carla, she could have filed a dismissal under TCPA and avoided this whole drawn-out ordeal,” said Arif Panju, an Austin-based attorney at public interest group Institute for Justice, which represented Main in her case at the time.
Now the bills making their way through the Texas legislature threaten to gut the law by stripping away key provisions that dissuade SLAPP abuse.
One bill would bar judges in SLAPP lawsuits from pausing the suit while a motion to dismiss makes its way through the court process. That would mean that defendants fighting to dismiss these cases could have to fight two lawsuits at once: the potential appeal of their motion and the ongoing initial lawsuit.
“People just won’t appeal because they can’t afford to fight two separate cases at once and take the risk,” said Laura Prather, a First Amendment attorney at Haynes Boone in Texas leading the fight against the new legislation. Prather helped get the state’s anti-SLAPP law passed in 2011.
The second bill also dramatically tilts the playing field in favor of SLAPP litigants. The legislation would allow plaintiffs in these cases to be exempted from state law forcing them to pay defendants’ attorney fees if they lose. If enacted, it would be up to the judge’s discretion to award attorney fees. Critics of the bill say the mandatory awarding of attorney fees has a powerful deterrent effect against plaintiffs bringing meritless intimidation lawsuits guaranteed to lose in court.
“Amending those fees would put a bounty on the heads of SLAPP victims,” Prather explained. “You’re just going to see people settle more and start self-censoring. . . . Why take the financial risk?”
This set of legislative changes is just the latest effort to kneecap Texas’s anti-SLAPP law. In 2019, the legislature approved an overhaul of the act that stripped out several categories of lawsuits covered by anti-SLAPP protections.
Those alterations to the Texas anti-SLAPP law are still being interpreted by Texas courts, which is why opponents of the bills argue that further changes would only cause more legal uncertainty.
Recent rulings from the Texas courts have also established new legal precedent that significantly limits freedom of speech in favor of powerful litigators.
In a 2018 decision, a judge ruled that even if the specific contents of a published work are factual, the author may still be liable for “defamation by gist,” an expansive reinterpretation of permissible speech under the First Amendment.
A Texas-Sized Lobbying Onslaught
Business groups say their backlash to Texas’s anti-SLAPP law is motivated by several grievances. They claim that anti-SLAPP cases are being filed at such high volumes that they’re clogging up the appellate court system, despite evidence to the contrary. More broadly, opponents of the state’s anti-SLAPP law argue the protections are letting too many people speak critically against private businesses with impunity. “Getting SLAPPed around by the TCPA” is how one business group describes it.
But the lobbying forces behind the bills suggest other motives at play. When identical bills were originally introduced in 2023, state insiders at the time saw them as the doing of a Texas businessman disgruntled about a SLAPP case he lost, which he blamed on the state’s protections. Brint Ryan, an influential state lobbyist and tax attorney, had been pursuing a lawsuit against media conglomerate Gannett for a USA Today article casting doubt on his business dealings in Arizona. Though the bills passed the Senate that year, they didn’t make it into law.
This year, however, the most prominent public-facing backer of both bills is an even more powerful force: Texans for Lawsuit Reform, a well-financed legal group with deep political connections in the Texas legislature described by insiders as the voice of the “business and political establishment.” Close allies with the Bush family, the group’s political action committee is bankrolled by a host of corporate forces, primarily the oil and gas industry.
This past election cycle, Texans for Lawsuit Reform received a million-dollar donation from the state’s new billionaire activist, Elon Musk, to help lift Republican candidates up and down the ballot. One of their affiliated PACs, which is focused on electing Republican judges, accepted another $2 million in donations from Musk. Overall, the group amassed a war chest of more than $20 million to spend across the state and federal elections in the 2024 elections. Most state lawmakers have received a financial boost at some point from the group’s PACs.
Texans for Lawsuit Reform frequently advocates for issues it believes will encourage companies to incorporate in Texas, siphoning business away from similarly laissez-faire states like Nevada and Delaware. One of the group’s signature legislative achievements came in 2023 when its lobbyists persuaded the legislature to approve specialized business courts to hear certain legal disputes. The arrangement, modeled on the Court of Chancery in Delaware, is generally more amenable to corporations.
The current anti-SLAPP bills would appear to be no different. If passed, eroding free speech protections could spread to other states competing with Texas.
The End of the “Bush Machine”?
The fate of the legislation, however, is hotly contested, even though Republicans control the legislature and the governor’s house.
The bills have inspired cross-ideological opposition from the “Protect Free Speech Coalition,” which includes liberal nonprofits like the American Civil Liberties Union and Public Citizen alongside conservative activist groups such as the National Right to Life Committee, plus media organizations spanning from Fox News to NBC. The bipartisan alliance, which has been calling lawmakers’ offices and mounting protests since the start of this year, is united by the belief that all its members benefit from stronger protections against SLAPP lawsuits filed in response to their political speech or criticisms of corporate practices.
On one level, the right flank of the coalition shares the same principles. But their hostility to the reforms also derives from the reputation that Texans for Lawsuit Reform has garnered as a vestige of the old-guard Bush era in Texas.
In today’s political climate, marked by Trump’s coup against the traditional Republican establishment, the Right’s country club wing has lost some political favor with the current populist GOP nationwide.
“A few years ago, [Texans for Lawsuit Reform] were still the 800-pound gorilla in the room. . . . They asked for something and they got it,” said Republican lawyer Tony McDonald, who’s been mobilizing conservative groups to oppose the anti-SLAPP bills. McDonald has been on the receiving end of SLAPP threats from Brint Ryan, the Texas tax attorney who once told McDonald on X, “Keep going and you’ll find the TCPA won’t protect false statements like this.”
The lobbying group’s grip on the state has recently slipped somewhat because of a major state fight they’re embroiled in. They are the bête noire of Texas attorney general Ken Paxton, a populist standard-bearer for the new Texas GOP who recently announced he’d primary Senator John Cornyn (R-TX) in 2026 for not being sufficiently MAGA.
Paxton very publicly blamed Texans for Lawsuit Reform and the “Bush machine” for instigating impeachment proceedings against him in 2023 for allegedly misusing public funds to help a donor, though those proceedings ultimately failed. Texans for Lawsuit Reform denies those allegations but remains a vocal opponent of the Paxton wing of the Texas GOP.
The group’s advocacy to undermine free speech has only provided more ammunition to its detractors. Many of Paxton’s allies view the legislation as another indication that the group is out of step with the conservative base. “This is more about establishment versus antiestablishment,” said McDonald.
Despite the financial power behind gutting SLAPP protections, proponents of the bills face a major challenge: even the Texas Republican Party includes a plank in its platform supporting the state’s anti-SLAPP law. That language, which was carefully slipped in last year by First Amendment advocates in anticipation of the current legislative fight, could be a harbinger of what’s to come in the final month of the legislative session.
This article was first published by the Lever, an award-winning independent investigative newsroom