Freedom of Speech laws in Texas could change, jeopardizing online reviews

Texas

AUSTIN (KXAN) — Carol Hemphill says she posted negative online reviews of the assisted living facility where her adult brother lived, and then her brother was evicted and she was slapped with a defamation lawsuit.

In 2016, Hemphill moved her brother to an assisted care facility closer to her home to keep an eye on things. He has a traumatic brain injury and needs assistance in his day-to-day life. 

After a time, she noticed problems in her brother’s treatment and care there. 

“We started to see signs that my brother was being seriously neglected,” Hemphill explained. “I discovered that they had failed to give him his doctor-ordered medications for four months.” 

Although she says she communicated with the facility staff repeatedly for months, Hemphill said the situation never improved. So, between September and October 2017, she says she filed a complaint with Texas Health and Human Services and posted a few negative online reviews about the facility. 

“I wrote some very honest reviews on senior care websites that people look at before taking their loved one to a facility. It wasn’t even the worst review I could write. It was just honest and factual.”

Her brother was evicted from the facility and a year later, Hemphill was served with a lawsuit for defamation. 

“When I first got the lawsuit, I didn’t even know what kind of attorney to call,” Hemphill said. 

That’s when she learned about the Texas Citizens Participation Act, or TCPA. The state law, passed in 2011, is designed to allow Texans to voice their concerns and opinions without fear of being sued for doing so. The law allows a defendant like Hemphill to dismiss a lawsuit quickly and shift the legal costs to plaintiffs.

The hope is it’ll discourage frivolous lawsuits in civil court. 

“[Without the TCPA], There would not have been any guarantee of recovering attorneys fees. It would have cost me a fortune with no guarantee of anything in return.”

In January 2019, a judge dismissed the lawsuit against Hemphill and awarded her attorneys fees and some punitive damages. 

Now, Hemphill is testifying in public hearings at the State Capitol in hopes of making sure the protections that assisted her in her legal battle don’t disappear as lawmakers work to change the anti-SLAPP legislation across the state.

There’s concern that if House Bill 2730 were to pass, Hemphill would be left without protection and possibly without representation.

“This statute has become something that it was never intended to be. We talk about the unintended consequences of legislation that we file, and I think this is a perfect example,” Rep. Jeff Leach, R-Plano, the bill’s author, said Monday in committee. “The current law, members, as we know — has been applied in cases never anticipated by the legislature in 2011. This includes family law and enforcement of trade secrets.” 

In an attempt to ease concerns by those in attendance, Leach continued:

“The Constitutional rights of speech, association and petition are protected. Participation in government is protected. The purpose of this bill is, by no means, to gut the TCPA. It’s to strengthen the TCPA.”

After about four hours of public testimony Monday in committee, Leach says his goal is to nail down the language of the bill this week. The committee meeting ended with HB 2730 still pending. 

To read the latest version of the bill, as was substituted, click here

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