A legal spat between a Texas attorney and an Arizona man has prompted over three dozen media groups to sign onto a brief with the Fifth Circuit Court of Appeals in a case that would determine if Texas’s anti-SLAPP law can be used to fight alleged “nuisance” lawsuits that are filed in federal court.
The nation’s largest media corporations and organizations are among those that have filed in support of defendant Thomas Retzlaff, including the Associated Press, the Washington Post, The New York Times and National Public Radio.
A SLAPP suit — shorthand for a “strategic lawsuit against public participation” — is an action to discourage the exercise of some First Amendment rights, including free speech. In 2011, the Texas Legislature passed the Texas Citizens Participation Act to combat such lawsuits, which have been used to stymie investigations by media entities and others seeking public records or reporting fully on news events. The suits are intended to intimidate defendants with the potential cost of legal fees.
Denton attorney Jason Lee Van Dyke filed a $100 million damages lawsuit against Retzlaff in state court in March, alleging that Retzlaff cost him a job in the Victoria County prosecutor’s office in 2017 by calling the office and accusing Van Dyke of, among other things, being a member of a white supremacist group.
The case was moved to a federal court in April because of the potential conflict between Arizona and Texas jurisdictions. Retzlaff asked the court to dismiss Van Dyke’s action under Texas’s anti-SLAPP law.
A Sherman federal judge in July denied the motion to dismiss, sending the case to the federal appeals court.
The media groups, in their amicus brief, contend that that case “has potentially broad ramifications” for their organizations and others that depend on anti-SLAPP protections to avoid the sometimes debilitating costs of “litigating meritless claims that infringe their First Amendment rights.”
However, Van Dyke recently filed his own motion to drop the complaint against Retzlaff.
Retzlaff refuses to drop his appellate case, including the question of whether he will be awarded attorney’s fees.
The Texas anti-SLAPP law is considered one of the broadest in the nation with regard to First Amendment protections.
“It will be interesting if the Fifth [Circuit Court] rules on this during the [legislative] session,” said state Rep. Todd Hunter (R-Corpus Christi), who carried the anti-SLAPP bill in the House in 2011. He said that there has been some interest in retooling the law.
“We don’t want it to be abused, and there is some interest in making sure of the differences between anti-SLAPP and real libel cases,” Hunter said.
The District of Columbia and 33 states have anti-SLAPP statutes, most of them passed in the last decade as the rise of online commentary has made avenues of criticism more available to the public.
“If people like Tom Retzlaff are allowed to call people pedophiles and get them fired from their jobs, then the First Amendment needs to be repealed,” Van Dyke said in an interview. He said Retzlaff has not only cost him his job in the Victoria County Attorney’s office, but Retzlaff’s complaints to the State Bar of Texas have resulted in his license being challenged.
Retzlaff contends that Van Dyke’s representation of a group called the “Proud Boys” — self-described “western chauvinists” with an “anti-white guilt” agenda — indicates racist sentiments. Van Dyke alleges Retzlaff also wrote libelous blog posts calling Van Dyke a Nazi and a white supremacist. Retzlaff denies doing so.
“This statute, this anti-SLAPP law, is being used by psychopaths to abuse the First Amendment,” said Van Dyke, who is representing himself. “This type of thing would not have happened during the time of our founding fathers.”
The two litigants have made accusations regarding each other’s character and connections to shady groups, both peppering their diatribes with expletives.
The Ninth Circuit Court of Appeals has consistently allowed the California anti-SLAPP law to be used to fight SLAPP suits filed in federal court there while the Tenth Circuit in Denver has disallowed that state’s anti-SLAPP statute.
The Texas law has never been ruled on by the Fifth Circuit although that appellate court has ruled that Louisiana’s version of the law can be applied.
The Texas statute was used, though, when exotic dancer and porn actress Stormy Daniels sued President Donald Trump over tweets and statements the president made regarding her character. Daniels is a Texas resident, and Trump’s lawyer in California contended that Texas’ anti-SLAPP law prohibited Daniels from suing him.
The California appellate court agreed. “This is the definition of protected rhetorical hyperbole,” it said in its ruling.
“We now have the prospect that the Texas anti-SLAPP law will apply in nine states [covered by the Ninth Circuit Court of Appeals] but not in Texas,” said Jeffrey Dorrell, the Houston attorney representing Retzlaff.
He said the urgency with which the Texas bill was passed in 2011 indicates how serious state lawmakers were in protecting speech.
The law was approved unanimously by both chambers; because it passed by more than a two-thirds majority, it went into effect immediately.
The Texas law was backed from the outset by media groups and individuals who had been sued for defamation and, in one case, racketeering.
In asking the court last week to dismiss his lawsuit, Van Dyke said that, “Short of locking Defendant in a prison cell for the rest of his natural life, there is nothing that this or any other court can do that will stop Defendant from continuing to harass Plaintiff.”
The motion has not yet been ruled on.
While Van Dyke can dismiss his claim with the court’s assent, Retzlaff refuses to drop his claim for legal relief on the anti-SLAPP question.
Both men tend to wrap themselves in the First Amendment when explaining the case.
Van Dyke said in an interview and in his most recent brief that the anti-SLAPP law is unconstitutional and allows individuals to “abuse the First Amendment.”
“The First Amendment protects me 100 percent,” Retzlaff insisted in an interview with Texas Monitor. “Van Dyke is a public official, not just for being an attorney licensed in four states but in his capacity as a potential assistant district attorney. The right to political speech and the right to petition our government is one of our most sacred constitutional rights.”
Steve Miller can be reached at [email protected].