Maine
Maine has enacted a version of the Uniform Public Expression Protection Act (“UPEPA”). The bill became law without the Governor’s signature on April 13, 2024, and will take effect on January 1, 2025.
The Uniform Law Commission drafted UPEPA as a model law designed to prevent abusive litigation, known as strategic lawsuits against public participation or “SLAPPs,” aimed at silencing free speech through meritless defamation, privacy, or other nuisance claims. Maine became the seventh state to adopt UPEPA, following Oregon, New Jersey, Utah, Kentucky, Washington, and Hawaii; several other state legislatures are considering whether to do the same.
Currently, Maine’s anti-SLAPP law is narrow in scope, protecting only the right of petition under the federal and state constitutions. Me. Rev. Stat. Ann. tit. 14, § 556 (2019). Under the law, the petition right includes five categories of activities: statements made before a legislative, executive, or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements reasonably likely to encourage a governmental body’s consideration of an issue; statements reasonably likely to enlist public participation in an effort to bring about such governmental consideration; and any other statements protected by the constitutional right to petition the government. Id.
Maine’s highest court has held that “[u]nless a newspaper is petitioning on its own behalf, the newspaper is not exercising its own right of petition.” Gaudette v. Mainely Media, LLC, 160 A.3d 539, 543 (Me. 2017). In other words, when a media organization merely reports on current events without taking its own position, the state’s anti-SLAPP protections are likely not available. Id.
The Maine anti-SLAPP law gives defendants the ability to move to dismiss claims arising from their exercise of the petition right. Me. Rev. Stat. Ann. tit. 14, § 556. Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge, after a hearing on the matter, may permit “specified discovery” if the requesting party can show good cause for it. Id.
The judge will grant the motion unless the plaintiff can show that the defendant’s claimed exercise of the petition right lacked any reasonable factual support or arguable basis in law, and his or her acts caused actual injury to the plaintiff. Id. In making this determination, courts will consider the plaintiff’s complaint and the SLAPP defendant’s motion to dismiss and any sworn statements containing facts on which the assertions in those documents are based. Id.
Maine’s anti-SLAPP law includes a provision allowing the state attorney general, on his or her own behalf or on behalf of any governmental body to which the SLAPP defendant’s acts were directed, to intervene to defend or otherwise support the defendant on the motion to dismiss. Id.
If the court grants the motion to dismiss, it may—but is not required to—order the plaintiff to pay the prevailing SLAPP defendant’s costs and attorney’s fees. Id.
Maine’s Supreme Court has recognized a right to immediately appeal the denial of a special motion to dismiss under the anti-SLAPP law, reasoning that “a failure to grant review” of such decisions “would impose additional litigation costs on defendants, the very harm the statute seeks to avoid, and would result in a loss of defendants’ substantial rights.” Schelling v. Lindell, 942 A.2d 1226, 1229–30 (2008) (citation omitted).