An Open Letter in Support of the Uniform Law Commission’s Uniform Public Expression Protection Act

June 23, 2022   •  By IFS Staff   •    •  
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PDF of letter available here

The undersigned organizations represent an array of views across the political spectrum, which often results in disagreements on certain issues. Yet protection from meritless lawsuits to punish speech, known as Strategic Lawsuits Against Public Participation (“SLAPP”), is one principle that we all agree on. Our organizations strongly support robust anti-SLAPP laws modeled after the Uniform Law Commission’s (“ULC”) Uniform Public Expression Protection Act (“UPEPA”).

The First Amendment protects our right to freedom of speech, press, assembly, and petition, which are fundamental to free expression, liberty, and democracy. Some individuals and entities seek to suppress or punish speakers, artists, or publishers through SLAPPs. Such unscrupulous litigants will start expensive and meritless litigation in an effort to intimidate and harass a speaker into silence.

Anti-SLAPP laws protect the public from frivolous lawsuits that arise from speech on matters of public concern. These laws protect speakers by providing special procedures for defendants to defeat weak or meritless claims. The stronger the statute, the more deterrence there is against filing SLAPP lawsuits.

Already, 32 states have anti-SLAPP statutes, though most could be significantly improved by adopting some or all of the UPEPA’s language. Every state should adopt an anti-SLAPP law that follows the provisions in the UPEPA to provide national uniformity against abusive litigation that undermines First Amendment-protected freedom of expression.

The following six features in the UPEPA are necessary for an effective anti-SLAPP law:

1. Protection of all expression on matters of public concern.

Strong anti-SLAPP statutes protect a wide spectrum of speech. The best statutes protect all speech on matters of public concern in any forum, as the UPEPA does.

2. Minimization of litigation costs by allowing defendants to file an anti-SLAPP motion in court.

Under the UPEPA, the filing of an anti-SLAPP motion automatically halts discovery and all other proceedings until the court rules on the motion. Discovery, which includes document production and depositions, imposes expensive and invasive burdens on defendants. Instructing courts to rule promptly on the anti-SLAPP motion minimizes the cost of meritless lawsuits that harm free expression rights.

3. Requiring plaintiffs to show they have a legitimate case early in the litigation.

The UPEPA puts the burden of proof on the plaintiff when responding to an anti-SLAPP motion to “establish a prima facie case as to each essential element” of the lawsuit. It forces plaintiffs to substantiate their claims, and demonstrate that they can overcome any applicable First Amendment protection, at an early stage of the litigation. Alternatively, the defendant can win the anti-SLAPP motion by showing that the plaintiff “failed to state a claim” or that “there is no genuine issue as to any material fact and the [defendant] is entitled to judgment as a matter of law.” If the court approves the anti-SLAPP motion, the case is dismissed.

4. The right to an immediate appeal of an anti-SLAPP motion ruling.

The UPEPA and strong anti-SLAPP statutes also reduce the coercive and punitive nature of litigation by providing the defendant with the right to immediately appeal a denial of an anti-SLAPP motion. This is important because lower courts can err in judgment, and a successful appeal of a ruling denying an anti-SLAPP motion can avoid an expensive and stressful trial that would burden a speaker’s First Amendment rights.

5. Award of costs and attorney fees.

Strong anti-SLAPP statutes, like the UPEPA, require the court to award costs and reasonable attorney’s fees to a prevailing defendant. This is a vital deterrent against SLAPP lawsuits. Without an award, a defendant might win the lawsuit, but still suffer financial devastation from costs owed to their lawyers. Every state should reduce the punishment that unscrupulous litigants can mete out to their critics and adversaries. Automatic costs and attorney’s fee awards do just that. Importantly, such fee-shifting also enables more attorneys to represent those with limited means fighting a SLAPP.

6. Broad judicial interpretation of anti-SLAPP laws to protect free speech.

The UPEPA and several state anti-SLAPP statutes instruct judges to read the statute broadly and/or liberally to protect free expression rights.

We appreciate the work of the Uniform Law Commission to craft the UPEPA and support its passage in states across the country with weak or no anti-SLAPP laws. Please share this letter with those working to enact or improve anti-SLAPP laws. Our organizations are ready and willing to lend support to such efforts.


Organizing Signers:

American Civil Liberties Union
Institute for Free Speech
Institute for Justice
Public Participation Project
Reporters Committee for Freedom of the Press

Joined by:

American Society of Journalists and Authors
Authors Guild
Center for Biological Diversity
Center for Individual Freedom
Comic Book Legal Defense Fund
Competitive Enterprise Institute
Defending Rights & Dissent
Electronic Frontier Foundation
Foundation for Individual Rights and Expression
International Association of Better Business Bureaus
James Madison Center for Free Speech
League of Conservation Voters
Motion Picture Association, Inc.
National Association of Broadcasters
National Coalition Against Censorship
National Right to Life Committee
National Taxpayers Union
News Leaders Association
News Media Alliance
PEN America
R Street Institute
Society of Professional Journalists
Woodhull Freedom Foundation

IFS Staff

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