NJ flips to strongly protecting free speech from lawsuits

September 28, 2023   •  By David Keating   •    •  

This piece originally appeared in the Press of Atlantic City on September 27, 2023.


Unifying moments worthy of celebration are woefully rare in modern politics. Especially when it comes to free speech.

New Jersey just earned one.

That’s because Gov. Phil Murphy recently signed a new law — passed unanimously by both houses of the legislature — that strengthens the free speech rights of all New Jerseyans.

The law, called the Uniform Public Expression Act (UPEPA), is what’s known as an “anti-SLAPP” law. SLAPP stands for “strategic lawsuit against public participation.” SLAPPs are lawsuits aimed at preventing speakers from exercising political speech rights, usually using a meritless defamation claim as the pretense for a suit. Without anti-SLAPP protections, plaintiffs with deep pockets can use costly litigation to silence speech they don’t like.

Laws like UPEPA help speakers of all kinds defend themselves against SLAPPs. Without such defenses, the burdens and costs of fighting SLAPPs can not only crush political speech but can also be personally and financially devastating to speakers targeted by such lawsuits. Moreover, in jurisdictions without anti-SLAPP protections, the looming threat of potential SLAPPs chill speech. This means that would-be speakers will avoid speaking in the first place for fear of suffering serious consequences merely for exercising their First Amendment rights.

In passing UPEPA, New Jersey joins 32 other states and the District of Columbia as jurisdictions with anti-SLAPP laws. Even better, New Jersey becomes the 20th state to pass a strong anti-SLAPP law. New Jersey previously had no anti-SLAPP protection at all, which prompted it to earn a grade of “F” in the Institute for Free Speech’s 50-state Anti-SLAPP Report Card.

UPEPA dramatically improves that dismal free-speech landscape. The law closely tracks the model anti-SLAPP language recommended by the respected, nonpartisan Uniform Law Commission. This language ensures that an anti-SLAPP law contains key provisions that enhance deterrence of SLAPPs.

These provisions help to deter SLAPPs and minimize litigation costs for defendants, including permitting a winning defendant to recover an award of costs and attorney fees. Other essential provisions include a requirement that plaintiffs show that they have a legitimate case early in the proceedings. Defendants also have a right to an immediate appeal if the court denies an anti-SLAPP motion. Finally, the new law instructs judges to interpret the law’s speech protections broadly, helping to ensure that those protections extend to expression on any matter of public concern.

The effectiveness of this language and the importance of such laws have attracted the support of groups from across the political spectrum. In fact, a diverse coalition of 28 signers, including organizations such as the ACLU, National Right to Life, International Association of Better Business Bureaus, Motion Picture Association, and the News Media Alliance, published an open letter in support of the Uniform Law Commission’s model UPEPA in 2022, with the Institute for Free Speech as an organizing member.

This wide range of support reflects the positive impact that anti-SLAPP laws have on the fundamental right to free expression. Even in these politically charged times, anti-SLAPP laws often enjoy tremendous bipartisan support because they safeguard everyone’s right to free speech.

That was certainly the case in New Jersey. The bill that became UPEPA had deep bipartisan sponsorship and passed without a single “no” vote in either the Assembly or the Senate.

Now, New Jerseyans of either party or no party can celebrate the fact that their elected officials have not only addressed a significant legal shortcoming in the state, but they have done so with a new law that is among the strongest in the entire country.

As a result, New Jersey speakers can speak more freely, secure in the knowledge that they enjoy legal protections against those who would silence them.

David Keating

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