When Tommy filed his motion to dismiss my libel lawsuit, he insisted that I had SLAPPed his client, thus forcing him to file an anti-SLAPP motion against me.
No, Tommy wasn’t claiming that I had physically assaulted his client. Rather, he was saying that, when I sued Sonia for saying that I had exposed myself, I had violated her right of free speech. (No, I’m not making this up.)
Anti-SLAPP Laws
The purpose of a lawsuit is to seek justice (often in the form of money) because you’ve been wronged.
Let’s say that a careless driver ran a red light and slammed into your car. Or you paid a contractor to build a new fence, but he took your money and never showed up. Or a mining company poisoned your groundwater. Or somebody accused you of committing a crime that you did not commit.
But sometimes, people don’t sue you because they think you’ve wronged them. Sometimes people sue you because they want to shut you up.
These kinds of lawsuits are known as “Strategic Lawsuits against Public Participation,” or just SLAPP suits. And laws designed to protect people from SLAPP suits are known, appropriately enough, as anti-SLAPP laws.
The first anti-SLAPP law was enacted in California in 1992, basically to protect activists and journalists who were being sued by big companies because those companies didn’t like the things that the activists and journalists were saying about them.
If you’re a powerful corporation, one time-honored way to stop people from criticizing you is to sue them, on the theory that no private citizen (especially one with limited resources) wants to have to endure a long and expensive legal process with an uncertain outcome. In other words: Yeah, maybe that mining company did poison your groundwater – but if you say that in public and they sue you, do you really have the time and money to prove that you’re right? And if you lose the lawsuit, is there a chance that you might lose your home as well?
Anti-SLAPP laws allow you to quickly get a court to dismiss a SLAPP suit – and typically they allow you to recover your attorneys’ fees as well.
By now, nearly 40 states have some form of anti-SLAPP law. In Texas, that law is known as the “Texas Citizens Participation Act,” or just the TCPA. California’s anti-SLAPP law is still considered to be the strongest such law in the US, but the TCPA is considered to be a very strong law in its own right. After all, Texas is the home of rugged individualism – and we rugged individuals want to be able to tell anybody what we think of them without having to worry that we’re going to get sued out of existence. So: Don’t Mess With Texans.
Tommy’s TCPA Motion
To move this discussion into the context of my libel lawsuit:
- Sonia, Tommy, and S&S (Tommy’s law firm) accused me of exposing myself.
- I sued Sonia, Tommy, and S&S for libel.
- Sonia, Tommy, and S&S asked the court to dismiss the lawsuit under the terms of the TCPA because, they claimed, the purpose of my lawsuit was to violate their First Amendment rights.
Yes, that’s an oversimplification. Here’s a broader summary of what Tommy actually said in his Motion to Dismiss Pursuant to the Texas Citizens Participation Act.
1. I appeared to be dressed in the photo.
Yes, Tommy admitted, he did say that I simply seem to enjoy exposing myself to Sonia’s security cameras. But that statement was accompanied by a photo of me in which I am, apparently, fully clothed. So he didn’t really mean that I was exposing myself; rather, he meant that I was “evincing conspicuousness.”
So although he had explicitly alleged in his Trespass Counterclaim that I had exposed myself, he now asked the court to believe that “the only allegation in the Counterclaim was that Mr. Mishkoff trespassed onto Ms. Bryant’s real property and made sure he was in full display of her security cameras when doing so.”
2. Sonia was simply exercising her First Amendment rights.
Because the defamatory statement was made in a motion filed in court, the fact that I sued Sonia for what she said violated her “right to petition.” Sonia didn’t submit a “petition” in the informal sense of the word – but in a legal sense (from what I understand), the act of filing a claim (or, in this case, a counterclaim) with the court is a way of “petitioning” the government.
And to make sure that the court understood the First Amendment implications of the case, Tommy added that “it is arguable that Mishkoff’s Petition also implicates the separate constitutional right of free speech under section 8 of the Texas Bill of Rights.”
3. They don’t think I can prove my case.
Tommy told the court that I would be unable to provide any evidence to prove my case. In particular, he told the court, I would be unable to prove that Sonia’s statement was false because when he claimed that I enjoyed exposing myself, he was expressing an opinion, he wasn’t making a statement of fact. And opinions are just opinions – everybody has them, everybody is free to express them. They’re not true, they’re not false, they’re just reflections of the way we feel. Right?
I couldn’t prove that he made a false statement, Tommy said, because I “will be unable to prove that the statement in Paragraph 9 of the Counterclaim is anything other than the author’s opinion that Mr. Mishkoff enjoys being caught on Ms. Bryant’s security cameras” and that “a reasonable person could only interpret such statement as an opinion.” So in saying that I had exposed myself, he wasn’t stating a fact (which could be true or false), he was merely expressing his opinion. Or something like that.
4. Tommy is free to defame me in a legal filing.
Even if he did libel me, Tommy said, he’s allowed to do that because of something called the Judicial Proceedings Privilege, which basically says that you’re free to say anything you want to say in a filing in a court case, even if it’s patently defamatory. The Judicial Proceedings Privilege, Tommy claimed, is “absolute,” and is “more properly thought of as immunity.”
“It is undisputed,” Tommy pointed out, “that these statements were made explicitly in a pleading and had some relation to that proceeding.” Well, the first part was obviously true: Tommy did accuse me of exposing myself in a pleading. But did that statement bear “some relation to that proceeding”? Is committing a sex crime a typical component of a property dispute?
I guess we’ll find out.
5. Tommy is free to defame me because he’s a lawyer.
In addition to being protected by the Judicial Proceedings Privilege, Tommy claimed that he was doubly protected by the Doctrine of Attorney Immunity, which generally states that attorneys are immune from civil liability for actions they take in connection with representing a client in litigation.
Tommy admitted that Attorney Immunity wouldn’t protect him from “conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer.” So I guess he was saying that accusing someone of exposing himself is an integral component of the way that any good lawyer would mount a defense to a property dispute, and thus he’s immune to my libel suit.
(I should point out that Tommy somehow neglected to include the Attorney Immunity defense as part of his original TCPA motion. Instead, he had to submit an amended motion the next day to remind the court that he could say anything he wanted to say about me, even if it had nothing to do with the case, simply because he’s a Super Lawyer.)
6. They want my money.
Finally, Tommy wanted me to reimburse Sonia for the fees she had paid him and his firm to defend her from my lawsuit.
Unlike the procedure in most other countries, litigants in the US typically have to bear their own legal expenses – a principle that, in fact, is known as the “American Rule.” But the TCPA specifically allows litigants to recover their attorneys’ fees from their opponents, which makes it an exception to the American Rule.
And in addition to billing me for his attorneys’ fees, Tommy wanted the court to sanction me to the tune of $10,000 because, he said, I’m a serial litigator. A “serial litigator” is “someone who repeatedly files lawsuits, often in large numbers, and sometimes in a way that appears strategic or opportunistic rather than based on genuine disputes.” This is the second lawsuit I’ve filed in my entire life. Describing me as a “serial litigator” seemed like a stretch.
That’s a summary of the details of Tommy’s motion to dismiss my libel lawsuit. But at a higher level, I couldn’t help but feel that the TCPA, Texas’ version of an anti-SLAPP law, which was specifically designed to protect me from powerful people who might try to shut me up, was instead being used as a club to try to cudgel me into submission.
“The Supreme Court’s interpretation has transformed the TCPA
from a shield to protect citizens from meritless lawsuits
into a sword that can be used to silence and dismiss legitimate claims.”
– Judge Terry Jennings, Justice of the Texas First Court of Appeals
Document Links
Tommy’s TCPA motion to dismiss
Tommy’s amended TCPA motion to dismiss
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