Pennsylvania

Pennsylvania is the latest state to enact a version of the Uniform Public Expression Protection Act (UPEPA). The bill was signed by Gov. Josh Shapiro on July 17, 2024. The bill is split into two sections — one substantive and the other procedural; the substantive section goes into effect immediately.

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. Pennsylvania became the ninth state to adopt a version of UPEPA, following Minnesota, Maine, Oregon, New Jersey, Utah, Kentucky, Washington, and Hawaii; several other state legislatures are considering whether to do the same.

Pennsylvania’s new law, codified at 42 Pa. Stat. 8320.1 et seq., recognizes that “there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of protected public expression” and, as such, “grants immunity to those groups or parties exercising the rights to protected public expression.”  Id. at 8340.12. The law defines “protected public expression” to include, among other things, news articles and commentary about issues on matters of public concern; it 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.  Id. at 8340.13(1)–(2).

Immunity is granted under the law if the party asserting a claim based on protected expression (1) fails to “establish a prima facie case as to each essential element” of its claim; (2) fails to “state a cause of action upon which relief can be granted,” or (3) “there is no genuine issue as to any material fact, and the person against whom the cause of action … has been asserted is entitled to judgment as a matter of law.”  42 Pa. Stat. 8340.15.

A party deemed immune pursuant to this section is entitled to attorney’s fees and costs, including in a situation where the opposing party voluntarily discontinues its action after a party asserts protected public expression immunity.  42 Pa. Stat. 8340.18. However, in the case of an unsuccessful assertion of immunity, the opposing party may be entitled to recover its fees and costs if the court determines that the party asserted the immunity frivolously or solely for the purpose of delaying the proceeding. Id.

Finally, the law includes a “SLAPP-back” provision that applies in limited circumstances, permitting a party that prevailed against a SLAPP suit but which did not receive a ruling on its immunity to file a new lawsuit seeking to recover its attorney’s fees and costs.

The remainder of the law is procedural and has not gone into effect. The Pennsylvania Constitution declares that only the Supreme Court of Pennsylvania can implement court procedures; as such, the procedural portion of the anti-SLAPP law will only go into effect if and when the Supreme Court takes particular actions, such as promulgating a rule of civil procedure consistent with the statute or communicating to the General Assembly that the procedural provisions do not violate the Pennsylvania Constitution.

If it goes into effect, the procedural provisions of the law would create a new special motion to dismiss the suit based on the party’s protected public expression immunity, which would need to be filed no later than 60 days after being served with a pleading asserting a cause of action based on protected public expression. 42 Pa. Stat. 8340.16; 8340.16(b)(1). If implemented, the procedural provisions would require that, in most circumstances, the court hear oral argument on the motion within 60 days after the motion is filed and issue its ruling within 60 days after hearing oral argument. Id. at 8340.16(d)(1)­­–(5). The procedural provisions also provide for a stay of all proceedings in a case, with some limited exceptions, as well as the potential for limited discovery when “necessary to establish whether a party has satisfied or failed to satisfy” its burden to show whether the claim at issue is subject to the immunity provision under the law. Id. at 8340.16(e).