Employer’s Anti-SLAPP Defense Slapped Down by Court

In 2011, the Texas Legislature passed the Texas Citizen’s Participation Act (or the Texas “Anti-SLAPP” statute).     This law was designed to protect against SLAPP (Strategic Lawsuit Against Public Participation) lawsuits.   These are meritless lawsuits filed for the purpose of censoring or intimidating persons who exercise their First Amendment rights.   For example, John Q. Public writes a blog entry criticizing a public official or corporation of unethical or illegal behavior.   In response, the public official or corporation sues John Q. Public for defamation, creating untold legal expenses and headaches to ensure the public criticism ceases.

The Anti-SLAPP law allows a judge to dismiss such frivolous lawsuits if the legal claims are based on, related to, or in response to a party’s exercise of their free speech rights.    This is a valuable law that is meant to protect our constitutional rights.    Unfortunately, this does not mean that the Anti-SLAPP law will not be misused by some defendants, including employers in employment related lawsuits.  Such was the case in Tony Rivers v. Johnson Custodial Homes, Inc. et al.  

Tony Rivers was employed as a Certified Nursing Assistant at a nursing home.  Rivers, who is male, would often wear women’s clothes, wigs and makeup.   Rivers alleged he was harassed at work, and was subsequently terminated based on false allegations of patient abuse.   After his termination, Rivers unsuccessfully applied for other jobs.  Rivers asserted that his former employer was giving negative references and telling prospective employers about the allegedly false claims of patient abuse. Rivers filed suit against his former employer asserting several claims, including a claim for defamation.

Rivers’ former employer sought a dismissal of the defamation claim under the Anti-SLAPP law, asserting that it engaged in free speech by providing information in the reference checks that benefited the public welfare.    The federal district court judge, however, was not persuaded by this argument.   The court held that the disclosures to the prospective employers were made privately, and therefore was not public speech subject to protection under the Anti-SLAPP law.   Secondly, even if these private statements were subject to protection, the court found that the employer failed to prove the alleged statements were made as a “matter of public concern.”

Good ruling by the court.  Rivers certainly did not file his lawsuit with the intent of chilling his former employer’s First Amendment rights.   Hopefully we don’t begin to see a trend by employers frivolously using this law, which was created to guard against frivolous claims.

“Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”

–        William O. Douglas

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.