This is the second in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the first Q&A with Carol Hemphill here.
ProPublica’s Charles Ornstein knows a thing or two about why laws protecting reporters from meritless lawsuits are so important.
In 2018, Dr. O.H. “Bud” Frazier sued Ornstein and another reporter, Mike Hixenbaugh, over an article they wrote reporting both on Frazier’s medical breakthroughs, and on accusations that he violated federal research rules and skirted ethical guidelines.
To defend themselves, the journalists and their outlets turned to the Texas Citizens Participation Act, a law that protects defendants from meritless lawsuits based on speech, known as strategic lawsuits against public participation, or SLAPPs. In 2024, the case was dismissed under the TCPA.
Ornstein has written about the impact of the lawsuit before. But as the Texas legislature considers proposals to change the TCPA in ways that would make it more expensive for SLAPP victims to defend themselves and more difficult to recover their attorneys fees, we wanted to revisit the case and get Ornstein’s take on why these parts of the law matter. Here’s what he had to say.
The lawsuit brought by Dr. Frazier against you took six years and two appeals to resolve. You’ve written about how the litigation wore on you. What were some of the impacts on you, personally, and professionally?
Being sued is a really nerve-wracking process. Every time we were sent a legal document, I felt a huge pit in my stomach. I also quickly learned that the simple fact of being a defendant has a ripple effect. When my wife and I applied for a mortgage, I answered truthfully that I was a defendant in a lawsuit. And even though ProPublica agreed that they would cover any liability within the scope of my employment, I was denied the mortgage and had to scramble to find another lender willing to “take the risk” of having me as a client.
More than that, the way I was portrayed in the legal papers filed by Dr. Frazier bore no resemblance to the careful journalist I have spent my whole career trying to be. Much of my reporting was based on official legal documents, correspondence involving a hospital’s board, federal records and on-the-record interviews. And yet I was portrayed as a callous journalist without regard for facts. It was a vindication when the court ruled that our story was a true representation of the proceedings.
The trial court twice denied motions to dismiss the case under the TCPA. You appealed, and the Court of Appeals said the trial court got it wrong both times and ultimately ordered that the case be dismissed. Under the TCPA, the trial court proceedings were stayed during your appeals. Why is the stay of trial court proceedings important to defendants like you?
The stay is crucial because it freezes the legal process known as discovery. During discovery, Dr. Frazier could have sought to depose us or try to obtain our reporting materials, including sensitive information about our sources. We might have had to fight over any agreements involving anonymity. For journalists, the ability to keep our sources confidential is a key reason people feel comfortable talking to us. If a plaintiff can force a journalist to identify a source before a final decision has been made on the TCPA motion, sensitive information could be disclosed unnecessarily. That’s not only unfair to journalists, it’s also unfair to whistleblowers and those who want to make their workplaces better and safer by trusting journalists with their stories. And remember the stay is not permanent. If the higher courts determine the lawsuit has a sound basis, discovery can begin. Also, it’s worth noting that our records were under a legal hold, meaning we couldn’t destroy them. So there was no risk that the records wouldn’t be there if discovery did begin.
If a plaintiff can force a journalist to identify a source before a final decision has been made on the TCPA motion, sensitive information could be disclosed unnecessarily.
Charles Ornstein
A new proposed bill would remove the automatic stay of proceedings during certain appeals of the denial of a TCPA motion, meaning that discovery and other trial proceedings could go forward while the case is on appeal. How would you and your co-defendants have been impacted if you had to continue your case in the trial court even as you were appealing it to the Court of Appeals?
As mentioned above, the idea of simultaneously being deposed and producing records while also trying to work on legal pleadings to prove the case was baseless would have been a lot for us and our lawyers. It also could have had a chilling effect on sources. The trial court judges in our case made clear errors of law in their rulings. In one instance, the judge adopted findings of fact written by the plaintiff even though we had established some of the evidence cited was mischaracterized by the plaintiff.
How much does a lawsuit like the one brought against you cost to defend, and why is it important that defendants who win a TCPA motion be able to recover the money they spend defending themselves?
These cases are so expensive. News organizations like ProPublica must take them incredibly seriously. Even with libel insurance, which we have, no news organization wants to lose a suit involving stories that are true and which were reported with integrity. Even if you win, they can cause premiums to go up, making it even more expensive to publish journalism in the public interest, as we do.
Recouping some of the funds it takes to defend against baseless suits to offset attorneys costs can be so important to cash-strapped newsrooms, and it hopefully acts as a deterrent for those who think that the mere threat of a lawsuit can head off a story they may not like. It’s fair to say that lawsuits like this cost many hundreds of thousands of dollars because, remember, it went up and down the Texas court system twice before being finally dismissed.
A new proposed bill would change the TCPA to make the award of attorneys fees to a winning defendant discretionary instead of mandatory. As someone who successfully used the TCPA to defend yourself but also had a trial court that ruled against you twice, do you have concerns about giving trial courts the option of denying fees to prevailing defendants?
Of course I do because, remember, the trial courts in our case erred twice in not throwing the case out under TCPA. The appeals court finally did that. If a lawsuit is determined to be baseless, the plaintiff should be required to pay for the attorney fees. (As I mentioned above, this can be extremely expensive as these cases can drag on for many years, even with the anti-SLAPP law.) If the whole goal is to reduce frivolous suits, then a finding that a suit was frivolous should automatically result in an award of attorney’s fees.
If the whole goal is to reduce frivolous suits, then a finding that a suit was frivolous should automatically result in an award of attorney’s fees.
Charles Ornstein
Do you think that weakening or repealing anti-SLAPP laws like the TCPA threatens journalism and free speech, and if so, why?
There’s a misperception that only journalists want anti-SLAPP laws. That’s not true. Businesses and others whose public participation can be seen as a threat want them, too. Speaking the truth should not subject you to drummed-up lawsuits, endless legal proceedings, and legal fees that, without an organization like ProPublica behind me, could have bankrupted me. Truthful articles like ours should be celebrated, not threatened, and weakening laws like TCPA sends the absolute wrong message.
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