UPEPA sweeps the nation
Last month, the Ohio Senate Judiciary Committee unanimously passed an anti-SLAPP bill, SB 237, based on the Uniform Law Commission’s Public Expression Protection Act. The model law is designed to prevent strategic lawsuits against public participation, or SLAPPs. These are lawsuits filed to try and silence speech — often that of journalists — typically through meritless defamation, privacy, or other tort claims. The Reporters Committee submitted written testimony in support of the bill, which will now be considered by the full Ohio Senate. In its testimony, the Reporters Committee made clear why anti-SLAPP laws in general, and UPEPA in particular, are so important.
With some exceptions for government agencies that bring lawsuits to enforce public safety, UPEPA applies broadly to claims based on a person’s exercise of their First Amendment rights “on matters of public concern.” When UPEPA applies, defendants have an opportunity early on in litigation (60 days after a claim is brought) to bring a special motion for expedited relief to dismiss the action entirely. Once that motion has been filed, all proceedings in the litigation, including discovery on the merits of the claims, are halted. This part is critical; it gives defendants the ability to end the case quickly, before costly and burdensome discovery.
Courts will dismiss these lawsuits if they find that the plaintiff failed to make out a valid argument for the essential elements of the claim, if defendants can show that plaintiff failed to state a claim upon which relief can be granted (the standard for a motion to dismiss in federal court), or if there is no genuine issue of material fact (the standard for summary judgment before trial). If defendants succeed on an anti-SLAPP motion, they will recover court costs and attorneys’ fees. If the court denies the anti-SLAPP motion and finds that it was not substantially justified or merely intended to delay the case from proceeding, the plaintiff is entitled to these same fees.
Thirty-four states and the District of Columbia have anti-SLAPP laws of some kind, but most are not as comprehensive as UPEPA, and many apply only to a small subset of cases. (For instance, Pennsylvania’s anti-SLAPP law applies only to individuals petitioning the government about environmental issues.) But this Ohio bill — and the traction it has been getting — is part of a trend. In the last three years, eight states have enacted versions of UPEPA. The most recent state was Minnesota, which passed UPEPA last month. And bills modeled after UPEPA, including the one in Ohio, have been introduced in nine states this year alone.
In Pennsylvania, a bill based on UPEPA unanimously passed in the state’s House of Representatives and will now be considered by the Pennsylvania Senate. The Reporters Committee endorsed that bill, and information on those advocating for its passage is available here.
It is hard to overstate the impact that UPEPA’s widespread adoption could have on journalists. In states without a process for expedited dismissal, harassing and meritless litigation takes years — and hundreds of thousands of dollars — to resolve. Comprehensive anti-SLAPP laws address those threats, without undermining or radically changing the existing structure of civil litigation.
Let’s hope that these bills keep getting traction.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.