New Jersey

On September 7, 2023, New Jersey’s governor signed into law a version of the Uniform Public Expression Protection Act (“UPEPA”).  The law took effect on October 7, 2023.  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. New Jersey became the fifth state to adopt UPEPA, following Utah, Kentucky, Washington, and Hawaii; several other state legislatures are considering whether to do the same.

New Jersey’s new law, N.J.S.A. 2A:53A-49 et seq., applies broadly to suits based on a person’s exercise of speech, press, assembly, petition, or association rights “on a matter of public concern.” N.J.S.A. 2A:53A-50. UPEPA also applies to lawsuits based on a person’s communications in a legislative, executive, judicial, administrative, or other government proceeding and to communications on an issue under consideration by any of those bodies. N.J.S.A. 2A:53A-50(2)(b).

Like the model statute, UPEPA exempts suits against government employees and entities acting in their official capacities, suits brought by the government to enforce public health or safety measures, and suits against people primarily engaged in the business of selling or leasing goods or services if the communications at issue are related to that business. N.J.S.A. 2A:53A-50(2)(c).

Defendants have 60 days after a claim is brought to file a special motion to dismiss the suit. N.J.S.A. 2A:53A-51. Once the motion is filed, all proceedings between the parties—including discovery—are stayed, though the court may allow limited discovery if it relates to a material issue. N.J.S.A. 2A:53A-52. The court must then hold a hearing on the motion “as expeditiously as possible.” N.J.S.A. 2A:53A-53. The court must then rule “as soon as practicable.” N.J.S.A. 2A:53A-56.

To have the SLAPP dismissed, the defendant must first establish that their speech is covered by the Act’s scope, and the plaintiff must fail to establish otherwise. N.J.S.A. 2A:53A-55(a)(1)­–(2). Once that threshold is established, the court will dismiss the case if either 1) the plaintiff fails to establish a prima facie case as to each essential element of their claims or 2) if the defendant shows that the plaintiff has failed to state a claim upon which relief can be granted (the same standard used in a traditional motion to dismiss) or that there is no genuine issue of material fact and that the defendant is therefore entitled to judgment as a matter of law (the same standard used in a traditional motion for summary judgment to resolve claims before trial N.J.S.A. 2A:53A-55(3)(a)­–(b). If the court denies the anti-SLAPP motion, the defendant may appeal as of right within 30 days. N.J.S.A. 2A:53A-57.

If the court grants the special motion to dismiss, it must award the defendant their court costs, attorney’s fees, and litigation expenses related to the motion. N.J.S.A. 2A:53A-58. However, if the court denies the motion and finds it was frivolous or brought solely to delay the proceeding, the plaintiff is entitled to recover these fees from the defendant. Id.

The statute provides that it should be interpreted and applied broadly to protect the exercise of constitutional rights. N.J.S.A. 2A:53A-59.