As one First Amendment attorney I’m friends with once said to his detractors, “Try Harder!” which is part of the takeaway from the 1st Houston COA in Chesser v. Aucoin, 01-20-00425-CV, 2020 WL 7391711 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet. h.). The facts are straightforward and typical in a promissory note case: plaintiff loaned money to defendant, defendant failed to repay it back, lawsuit is filed. But things took a very un-Holiday spirit turn when the defendant filed a Texas Anti-Slapp based on RFS and ROA (under the New TPCA – effective Sept. 1, 2019), arguing that because the loan was for a cybersecurity venture the promissory note lawsuit was an assault on defendant’s constitutional rights. The trial court denied the motion to dismiss and defendant appealed.
The Houston COA affirmed, first pointing out that the recent changes in the New TCPA were designed to align it with constitutional protections under the First Amendment:
The listed subject matters are based in part on and track language from Snyder v. Phelps, the landmark decision in which the United States Supreme Court explained when speech deals with matters of public concern and is thus entitled to special protection under the First Amendment:
Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.
562 U.S. 443, 453 (2011) (quotation marks and citations omitted).
Thus, the current definition of a “matter of public concern” more strongly emphasizes the term’s public component and thereby furthers the TCPA’s stated and unchanged purpose: “to encourage and safeguard the constitutional rights of persons to … speak freely.” CIV. PRAC. & REM. § 27.002 (emphasis added).
Having set the framework for the New TCPA, the Houston COA noted the absence of argument or authority for why private funding of a cybersecurity venture falls within the revised definition of “public concern.”
Here, Chesser contends that Aucoin’s legal action is based on or in response to communications made in connection with the funding of his cybersecurity business venture. Chesser further contends that the funding of his cybersecurity business venture is “a matter of … social … or other interest to the community” as well as “a subject of concern to the public.” Id. § 27.001(7)(B), (C). But Chesser does not explain how or why. Nor does he cite any authority in support of his contention. Instead, he simply asserts, without explanation or authority, that the funding of his cybersecurity business venture qualifies as a matter of public concern. In the absence of any argument or authority in support for his contention, we cannot conclude that the private funding of Chesser’s privately-owned business venture is anything other than a purely private matter. See, e.g., Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 136 (Tex. 2019) (holding that lessor’s communications to third parties about alleged termination of oil and gas lease, which had “a limited business audience concerning a private contract dispute,” did not relate to matter of public concern under prior version of TCPA); Schmidt v. Crawford, 584 S.W.3d 640, 650 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding that allegedly fraudulent statements in real property dispute did not constitute matter of public concern under prior version of TCPA when statements “affected [defendants’] own financial well-being” but not well-being of broader economy); Caliber Oil & Gas, LLC v. Midland Visions 2000, 591 S.W.3d 226, 239– 40 (Tex. App.—Eastland 2019, no pet.) (holding that “communications … made in connection with the purchase and sale of interests in [real] property” did not relate to matter of public concern under prior version of TCPA but rather “related only to the parties’ personal financial well-being”).
Also, take note of the reliance on the Texas Supreme Court’s decision in Creative Oil.
As the COAs contour the types of cases that fall within public concern expect to see lots of references to Creative Oil.
Typically, there are a flurry of opinions released right before the new year. So perhaps I’ll have another
Otherwise, Happy Holidays.
*Photo attribution https://www.google.com/url?sa=i&url=https%3A%2F%2Fwww.dreamstime.com%2Fphotos-images%2Fchristmas-stocking-coal.html&psig=AOvVaw1WSQ5uxG-sRL8pbRnu6cm4&ust=1609093194584000&source=images&cd=vfe&ved=0CAIQjRxqFwoTCJDMn7Kh7O0CFQAAAAAdAAAAABAG