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Pennsylvania Anti-SLAPP Laws Acts UPEPA
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42 Pa.C.S.A. § 8340.11 — Short title of subchapter
- Effective: July 17, 2024
This subchapter shall be known and may be cited as the Uniform Public Expression Protection Act.
UNIFORM LAW COMMENT
Although “SLAPP”--an acronym for “Strategic Lawsuit Against Public Participation”--does not appear in the Act’s title, the Uniform Public Expression Protection Act should be considered an anti-SLAPP act. Although “[t]he paradigm SLAPP is a suit filed by a large developer against environmental activists or a neighborhood association intended to chill the defendants’ continued political or legal opposition to the developers’ plans,” SLAPPs “are by no means limited to environmental issues, nor are the defendants necessarily local organizations with limited resources.” Hupp v Freedom Commc’ns, 163 Cal. Rptr. 3d 919, 922 (Cal. Ct. App. 2013). “[W]hile SLAPP suits ‘masquerade as ordinary lawsuits’ the conceptual features which reveal them as SLAPP’s are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Id.
Uniform Law:
This section is based upon Uniform Public Expression Protection Act § 1. See Uniform Laws Annotated, Master Edition, or Uniform Laws Annotated on Westlaw.
Comments provided by the National Conference of Commissioners on Uniform State Laws relate to the Uniform Public Expression Protection Act. The Pennsylvania act may differ to some degree in style or substance.
42 Pa.C.S.A. § 8340.17 — Interlocutory appeal
- Effective: July 17, 2024
An order granting, denying or otherwise determining immunity under this subchapter is immediately appealable under section 702 (relating to interlocutory orders).
UNIFORM LAW COMMENT
1. “If the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression. Thus, [anti-SLAPP statutes] protect the defendant from the burdens of trial, not merely from ultimate judgments of liability.” Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003) (superseded by statute on unrelated grounds as stated in Fyk v. Facebook, Inc., No. 19-16232, 2020 WL 3124258, at *2 (9th Cir. June 12, 2020)).
2. This section should not be construed to foreclose an interlocutory appeal of an order granting, in whole or in part, a motion under Section 3, if state law would otherwise permit such an appeal.
3. This section is not intended to affect any separate writ procedure a state may have.
4. This section is not intended to prevent a court from entering an order certifying a question or otherwise permitting an immediate appeal of an order that dismisses only part of a claim.
5. A party who chooses not to interlocutorily appeal under this section should not be foreclosed from filing an ordinary, non-interlocutory appeal of a court’s denial of a motion under Section 3 following the entry of a final, appealable judgment.
Uniform Law:
This section is based upon Uniform Public Expression Protection Act § 9. See Uniform Laws Annotated, Master Edition, or Uniform Laws Annotated on Westlaw.
42 Pa.C.S.A. § 8340.18 — Awards
- Effective: July 17, 2024
(a) Party asserting immunity.--If a cause of action based on protected public expression is commenced against a party, all of the following apply:
(1) If the party is immune under section 8340.15 (relating to grant of immunity), the court shall award the party attorney fees, court costs and expenses of litigation jointly and severally against each adverse party that asserted the cause of action.
(2) If the party asserts protected public expression immunity and the opposing party voluntarily discontinues the action under Pa.R.C.P. No. 230 (relating to voluntary nonsuit), with or without prejudice, the court shall award the asserting party attorney fees, court costs and expenses of litigation jointly and severally against each adverse party that asserted the cause of action.
(b) Party opposing immunity.--If the court determines that a party’s assertion of protected public expression immunity is frivolous or filed solely with intent to delay the proceeding, the court shall award the opposing party attorney fees, court costs and expenses of litigation, incurred in opposing the assertion of protected public expression immunity.
UNIFORM LAW COMMENT
1. The mandatory nature of the relief provided for by this section is integral to the uniformity of the Act. States that do not impose a mandatory award upon dismissal of a cause of action will become safe havens for abusive litigants. Without the prospect of having to financially reimburse a successful moving party, SLAPP plaintiffs will be able to file their frivolous suits in such states with impunity, knowing that, at worst, their claims will only be dismissed. But because moving parties would be financially responsible for the expense of obtaining that dismissal, the effect of the abusive cause of action is nevertheless achieved. The only way to assure a truly uniform application of the Act is to require the award of attorney’s fees to successful moving parties.
2. Nothing in this section should be construed to prevent a court, in appropriate circumstances, from awarding sanctions under other applicable law or court rule against a party, the party’s attorney, or both. For instance, many states have adopted court rules analogous to Fed. R. Civ. P. 11, and the constricted breadth of Section 10 should not act as a shield or restriction against the imposition of such sanctions where they would be otherwise warranted.
3. The term “costs” includes filing fees, as well as other monetary amounts a state may define as a “cost.”
4. The term “attorney’s fees” means the fees paid to the attorney to compensate for his or her time and effort in the prosecution or defense of the motion.
5. The term “litigation expenses” means the hard costs an attorney incurs in the prosecution or defense of the motion. Typical expenses in a case can include copies and faxes, postage, couriers, expert witnesses, consultants, private court reporters, and travel.
Uniform Law:
This section is based upon Uniform Public Expression Protection Act § 10. See Uniform Laws Annotated, Master Edition, or Uniform Laws Annotated on Westlaw.
42 Pa.C.S.A. § 8340.14 — Scope of subchapter
- Effective: July 17, 2024
(a) Coverage.--Except as provided in subsection (b), this subchapter applies to a cause of action based on protected public expression.
(b) Exclusions.--This subchapter does not apply to any of the following claims asserted in a civil action:
(1) Against a government unit or an employee or agent of a government unit acting in an official capacity.
(2) By a government unit or an employee or agent of a government unit acting in an official capacity to enforce a law, regulation or ordinance.
(3) Against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services.
(4) Seeking damages for bodily injury or death unless the claim:
(i) is for:
(A) defamation;
(B) publication of private facts;
(C) false light invasion of privacy;
(D) misappropriation of likeness; or
(E) intentional or negligent infliction of emotional distress; or
(ii) arises solely from a communication on a matter of public concern.
(5) Arising under any of the following:
(i) 23 Pa.C.S. Ch. 61 (relating to protection from abuse).
(ii) Chapter 62A (relating to protection of victims of sexual violence or intimidation).
(iii) The act of May 17, 1921 (P.L. 682, No. 284), known as The Insurance Company Law of 1921.1
(6) Arising under an insurance contract.
(7) Asserting misappropriation of trade secrets or corporate opportunities against the person that allegedly misappropriated the trade secret or corporate opportunity.
(8) Enforcing a nondisparagement agreement or a covenant not to compete against a party to the agreement or covenant.
(9) Arising out of the internal affairs, governance, dissolution, liquidation, rights or obligations between or among stockholders or partners. This paragraph includes the interpretation of the rights or obligations under the governing organic law, articles of incorporation, bylaws and agreements.
(10) Liability or indemnity of managers of business corporations, partnerships, limited partnerships, limited liability partnerships, professional associations, business trusts, joint ventures or other business enterprises. This paragraph includes the interpretation of the rights or obligations under the governing organic law, articles of incorporation, bylaws or agreements.
UNIFORM LAW COMMENT
1. Most courts explain the resolution of anti-SLAPP motions in terms of either a three- or two-pronged procedure. E.g., Younkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (“Reviewing a[n anti-SLAPP] motion to dismiss requires a three-step analysis.”); Wilson v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019) (“A court evaluates an anti-SLAPP motion in two steps.”). Section 2 of the Act constitutes the first step of that procedure, where the moving party (typically the defendant) must show that the responding party’s (typically the plaintiff’s) cause of action arises from the movant’s exercise of First Amendment rights on a matter of public concern. This step focuses on the movant’s activity, and whether the movant can show that it has been sued for that activity. See, e.g., Navellier v. Sletten, 52 P.3d 703, 711 (Cal. 2002) (“The anti-SLAPP statute’s definitional focus is not [on] the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.” (emphasis original)). If the movant cannot satisfy the first step--in other words, cannot show that the cause of action is linked to First Amendment activity on a matter of public concern--then the court will deny the motion without ever proceeding to the second or third step. THOMAS R. BURKE, ANTI-SLAPP LITIGATION § 1.2 (2019). Further discussion of how a court adjudicates the first step, including the parties’ burdens and the materials a court should review, appears in Comments 2 and 3 to Section 7.
2. Although the Act operates in a procedural manner--specifically, by altering the typical procedure parties follow at the outset of litigation--the rights the act protects are most certainly substantive in nature. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applying California’s anti-SLAPP law to diversity actions in federal court because the statute was “crafted to serve an interest not directly addressed by the Federal Rules: the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.”’). Otherwise stated, the Act’s procedural features are designed to prevent substantive consequences: the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13-CV-124, 2014 WL 2611746, at * 1 (S.D. Tex. June 11, 2014). A s stated by one California court, “[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (4th Dist. 2004).
3. The statute is only applicable to civil actions. It has no applicability in criminal proceedings.
4. The term “civil action” should be construed consistently with Fed. R. Civ. P. 1.
5. The term “cause of action” refers to a group of operative facts that give rise to one or more bases for recovery in a civil action. The term contemplates that in one civil action, a party seeking relief may assert multiple causes of action that invoke different facts and theories for relief. In some jurisdictions, other terms of art, such as “claim for relief,” “ground of action,” “right of action,” or “case theory,” might be more appropriate than “cause of action.” See, e.g., Baral v. Schnitt, 376 P.3d 604, 616 (Cal. 2016) (holding that when the California Legislature used the term “cause of action” in its anti-SLAPP statute, “it had in mind allegations of protected activity that are asserted as grounds for relief” (emphasis original)). Regardless of the term used by a state, the Act can be utilized to challenge part or all of a single cause of action, or multiple causes of action in the same case. See id. at 615 (“A single cause of action ... may include more than one instance of alleged wrongdoing.”). Otherwise stated, a single civil action can contain both a cause of action subject to the Act and one not subject to the Act.
6. Sections 2(b)(1) and (2) apply to a cause of action brought against a person based on the person’s communication. “Communication” should be construed broadly--consistent with holdings of the Supreme Court of the United States--to include any expressive conduct that likewise implicates the First Amendment. See Texas v. Johnson, 491 U.S. 397, 404 (1989) (“[W]e have long recognized that [First Amendment] protection does not end at the spoken or written word.”); Spence v. Washington, 418 U.S. 405, 409-11 (1974) (holding that conduct constitutes “communication” when it is accompanied by an intent to convey a particularized message and, given the surrounding circumstances, the likelihood is great that the message will be understood by those who view it); Rumsfeld v. Forum for Acad. and Institutional Rights, 547 U.S. 47, 65-66 (2006); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). Conduct is not specifically mentioned in the Act so as to avoid parties from attempting to use it to shield themselves from liability for nonexpressive conduct that nevertheless tangentially relates to a matter of public concern. See United States v. O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”). But the Act is intended to protect expressive conduct. For example, a person’s work on behalf of a political campaign might include constitutionally protected expressive conduct, such as putting up campaign signs or organizing a rally. The Act would protect that conduct. But a person who damages another candidate’s campaign signs or physically threatens attendees at an opposing rally would not be engaging in expressive conduct, and therefore should not be able to utilize the Act, even though the conduct tangentially relates to matters of public concern.
7. Sections 2(b)(1)-(3) identify three different instances in which the Act may be utilized. Section 2(b)(1) protects communication that occurs before any legislative, executive, judicial, administrative, or other governmental proceeding--effectively, any speech or expressive conduct that would implicate one’s right to petition the government. Section 2(b)(2) operates similarly, but extends to speech or expressive conduct about those matters being considered in legislative, executive, judicial, administrative, or other governmental proceedings--the speech or conduct need not take place before the governmental body. Section 2(b)(3) operates differently than (1) and (2) and provides the broadest degree of protection; it applies to any exercise of the right of free speech or press, free association, or assembly or petition, so long as that exercise is on a matter of public concern.
8. The terms “freedom of speech or of the press,” “the right to assemble or petition,” and “the right of association” should all be construed consistently with caselaw of the Supreme Court of the United States and the state’s highest court.
9. The term “matter of public concern” should be construed consistently with caselaw of the Supreme Court of the United States and the state’s highest court. See, e.g., Snyder v. Phelps, 562 U.S. 443, 453 (2011) (holding that “[s]peech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public”’ (citations omitted)); Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011) (“The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”). “The [matter-of-public-concern] inquiry turns on the ‘content, form, and context’ of the speech.” Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). The term should also be construed consistently with terms like “public issue” and “matter of public interest” seen in some state statutes. See, e.g., CAL. CIV. PROC. CODE § 425.16 (employing the terms “public issue” and “issue of public interest”); FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1164-65 (Cal. 2019).
The California Supreme Court breaks “matter of public concern” (or in its statute, “public issue” or “issue of public interest”) into a two-part analysis. FilmOn.com, 439 P.3d at 1165. “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates--a question we answer by looking to the content of the speech. Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.” Id. (citation omitted). The court observed that the first step is typically not difficult for the movant: “[V]irtually always, defendants succeed in drawing a line--however tenuous--connecting their speech to an abstract issue of public interest.” Id. But the second step is where many movants fail. The inquiry “demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.” Id. (citation omitted). As other California courts have noted, “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497, 506 (Cal. Ct. App. 2004); see also Dyer v. Childress, 55 Cal. Rptr. 3d 544, 548 (2007) (“The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not enough.” (citation omitted)).
The California Supreme Court explains that what it means to “contribute to the public debate” “will perhaps differ based on the state of public discourse at a given time, and the topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant--through public or private speech or conduct--participated in, or furthered, the discourse that makes an issue one of public interest.” FilmOn, Inc., 439 P.3d at 1166.
Further discussion of how a court adjudicates whether a cause of action is based on the moving party’s exercise of First Amendment rights on a matter of public concern, including the movant’s burden and the materials a court should review, appears in Comment 2 to Section 7.
10. Section 2(c) provides a list of exemptions, or situations to which the Act does not apply. It is the burden of the responding party to establish the applicability of one or more exemptions. Thus, even if a movant can show the Act applies under Section 2(b), the Act may nevertheless not apply if the non-movant can show the cause of action is exempt. Further discussion of how a court adjudicates whether a cause of action is exempt, including the responding party’s burden and the materials a court should review, appears in Comment 3 to Section 7.
11. The term “governmental unit or an employee or agent of a governmental unit acting in an official capacity” includes any private people or entities working as government contractors, to the extent the cause of action pertains to that government contract.
12. The term “dramatic, literary, musical, political, journalistic, or artistic work” used in Section (a)(3) should be construed broadly to include newspapers, magazines, books, plays, motion pictures, television programs, video games, or Internet websites or other electronic mediums.
13. Section 2(c)(3) carves out from the scope of the Act “communication[s] related to [a] person’s sale or lease of [ ] goods or services” when that person is primarily engaged in the selling, leasing, or licensing of those goods or services. In other words, “commercial speech” is exempted from the protections of the Act. By way of illustration, if a mattress store is sued for false statements made in its advertising of mattresses--whether by an aggrieved consumer or a competitor--the mattress store would not be able to avail itself of the Act. But if the same mattress store were sued for tortious interference for organizing a petition campaign to oppose the building of a new school, its activity would not be related to the sale or lease of goods or services, and it could use the Act for protection of its First Amendment conduct.
But the “commercial-speech exemption” does not apply to the creation, dissemination, exhibition, or advertisement of a dramatic, literary, musical, political, journalistic, or artistic work. This is consistent with the holdings of most courts that the contents of works protected by the First Amendment are not considered “goods or services,” even if sold for profit. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (“That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.”); Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1036 (9th Cir. 1991) (ideas and expressions in a book are not a product); Way v. Boy Scouts of Am., 856 S.W.2d 230, 239 (Tex. 1993) (“We conclude that the ideas, thoughts, words, and information conveyed by the magazine ... are not products.”). This ensures that claims targeting those in the business of making and selling works protected by the First Amendment are not denied the ability to invoke the Act. See Dyer v. Childress, 147 Cal. App. 4th 1273, 1283 (2007) (expressive works exception to the commercial speech exemption was “intended to ‘exempt the news media and other media defendants (such as the motion picture industry) from the [commercial-speech exemption] when the underlying act relates to news gathering and reporting to the public with respect to the news media or to activities involved in the creation or dissemination of any works of a motion picture or television studio.” ’ (citations omitted)).
42 Pa.C.S.A. § 8340.13 — Definitions
- Effective: July 17, 2024
The following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“Cause of action based on protected public expression.” A cause of action under section 8340.14 (relating to scope of subchapter).
“Goods or services.” The term does not include the creation, dissemination, exhibition or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic or artistic work.
“Protected public expression.” A person’s:
(1) communication in a legislative, executive, judicial or administrative proceeding;
(2) communication on an issue under consideration or review in a legislative, executive, judicial or administrative proceeding; or
(3) exercise, on a matter of public concern, of the rights of freedom of speech or of the press, the right to assemble or petition or the right of association, guaranteed by:
(i) the First Amendment to the Constitution of the United States; or
(ii) section 7 or 20 of Article I of the Constitution of Pennsylvania.
“Protected public expression immunity.” Immunity under section 8340.15 (relating to grant of immunity).
UNIFORM LAW COMMENT
1. Most courts explain the resolution of anti-SLAPP motions in terms of either a three- or two-pronged procedure. E.g., Younkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (“Reviewing a[n anti-SLAPP] motion to dismiss requires a three-step analysis.”); Wilson v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019) (“A court evaluates an anti-SLAPP motion in two steps.”). Section 2 of the Act constitutes the first step of that procedure, where the moving party (typically the defendant) must show that the responding party’s (typically the plaintiff’s) cause of action arises from the movant’s exercise of First Amendment rights on a matter of public concern. This step focuses on the movant’s activity, and whether the movant can show that it has been sued for that activity. See, e.g., Navellier v. Sletten, 52 P.3d 703, 711 (Cal. 2002) (“The anti-SLAPP statute’s definitional focus is not [on] the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.” (emphasis original)). If the movant cannot satisfy the first step--in other words, cannot show that the cause of action is linked to First Amendment activity on a matter of public concern--then the court will deny the motion without ever proceeding to the second or third step. THOMAS R. BURKE, ANTI-SLAPP LITIGATION § 1.2 (2019). Further discussion of how a court adjudicates the first step, including the parties’ burdens and the materials a court should review, appears in Comments 2 and 3 to Section 7.
2. Although the Act operates in a procedural manner--specifically, by altering the typical procedure parties follow at the outset of litigation--the rights the act protects are most certainly substantive in nature. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applying California’s anti-SLAPP law to diversity actions in federal court because the statute was “crafted to serve an interest not directly addressed by the Federal Rules: the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.”’). Otherwise stated, the Act’s procedural features are designed to prevent substantive consequences: the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13-CV-124, 2014 WL 2611746, at * 1 (S.D. Tex. June 11, 2014). A s stated by one California court, “[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (4th Dist. 2004).
3. The statute is only applicable to civil actions. It has no applicability in criminal proceedings.
4. The term “civil action” should be construed consistently with Fed. R. Civ. P. 1.
5. The term “cause of action” refers to a group of operative facts that give rise to one or more bases for recovery in a civil action. The term contemplates that in one civil action, a party seeking relief may assert multiple causes of action that invoke different facts and theories for relief. In some jurisdictions, other terms of art, such as “claim for relief,” “ground of action,” “right of action,” or “case theory,” might be more appropriate than “cause of action.” See, e.g., Baral v. Schnitt, 376 P.3d 604, 616 (Cal. 2016) (holding that when the California Legislature used the term “cause of action” in its anti-SLAPP statute, “it had in mind allegations of protected activity that are asserted as grounds for relief” (emphasis original)). Regardless of the term used by a state, the Act can be utilized to challenge part or all of a single cause of action, or multiple causes of action in the same case. See id. at 615 (“A single cause of action ... may include more than one instance of alleged wrongdoing.”). Otherwise stated, a single civil action can contain both a cause of action subject to the Act and one not subject to the Act.
6. Sections 2(b)(1) and (2) apply to a cause of action brought against a person based on the person’s communication. “Communication” should be construed broadly--consistent with holdings of the Supreme Court of the United States--to include any expressive conduct that likewise implicates the First Amendment. See Texas v. Johnson, 491 U.S. 397, 404 (1989) (“[W]e have long recognized that [First Amendment] protection does not end at the spoken or written word.”); Spence v. Washington, 418 U.S. 405, 409-11 (1974) (holding that conduct constitutes “communication” when it is accompanied by an intent to convey a particularized message and, given the surrounding circumstances, the likelihood is great that the message will be understood by those who view it); Rumsfeld v. Forum for Acad. and Institutional Rights, 547 U.S. 47, 65-66 (2006); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). Conduct is not specifically mentioned in the Act so as to avoid parties from attempting to use it to shield themselves from liability for nonexpressive conduct that nevertheless tangentially relates to a matter of public concern. See United States v. O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”). But the Act is intended to protect expressive conduct. For example, a person’s work on behalf of a political campaign might include constitutionally protected expressive conduct, such as putting up campaign signs or organizing a rally. The Act would protect that conduct. But a person who damages another candidate’s campaign signs or physically threatens attendees at an opposing rally would not be engaging in expressive conduct, and therefore should not be able to utilize the Act, even though the conduct tangentially relates to matters of public concern.
7. Sections 2(b)(1)-(3) identify three different instances in which the Act may be utilized. Section 2(b)(1) protects communication that occurs before any legislative, executive, judicial, administrative, or other governmental proceeding--effectively, any speech or expressive conduct that would implicate one’s right to petition the government. Section 2(b)(2) operates similarly, but extends to speech or expressive conduct about those matters being considered in legislative, executive, judicial, administrative, or other governmental proceedings--the speech or conduct need not take place before the governmental body. Section 2(b)(3) operates differently than (1) and (2) and provides the broadest degree of protection; it applies to any exercise of the right of free speech or press, free association, or assembly or petition, so long as that exercise is on a matter of public concern.
8. The terms “freedom of speech or of the press,” “the right to assemble or petition,” and “the right of association” should all be construed consistently with caselaw of the Supreme Court of the United States and the state’s highest court.
9. The term “matter of public concern” should be construed consistently with caselaw of the Supreme Court of the United States and the state’s highest court. See, e.g., Snyder v. Phelps, 562 U.S. 443, 453 (2011) (holding that “[s]peech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public”’ (citations omitted)); Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011) (“The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”). “The [matter-of-public-concern] inquiry turns on the ‘content, form, and context’ of the speech.” Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). The term should also be construed consistently with terms like “public issue” and “matter of public interest” seen in some state statutes. See, e.g., CAL. CIV. PROC. CODE § 425.16 (employing the terms “public issue” and “issue of public interest”); FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1164-65 (Cal. 2019).
The California Supreme Court breaks “matter of public concern” (or in its statute, “public issue” or “issue of public interest”) into a two-part analysis. FilmOn.com, 439 P.3d at 1165. “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates--a question we answer by looking to the content of the speech. Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.” Id. (citation omitted). The court observed that the first step is typically not difficult for the movant: “[V]irtually always, defendants succeed in drawing a line--however tenuous--connecting their speech to an abstract issue of public interest.” Id. But the second step is where many movants fail. The inquiry “demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.” Id. (citation omitted). As other California courts have noted, “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497, 506 (Cal. Ct. App. 2004); see also Dyer v. Childress, 55 Cal. Rptr. 3d 544, 548 (2007) (“The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not enough.” (citation omitted)).
The California Supreme Court explains that what it means to “contribute to the public debate” “will perhaps differ based on the state of public discourse at a given time, and the topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant--through public or private speech or conduct--participated in, or furthered, the discourse that makes an issue one of public interest.” FilmOn, Inc., 439 P.3d at 1166.
Further discussion of how a court adjudicates whether a cause of action is based on the moving party’s exercise of First Amendment rights on a matter of public concern, including the movant’s burden and the materials a court should review, appears in Comment 2 to Section 7.
10. Section 2(c) provides a list of exemptions, or situations to which the Act does not apply. It is the burden of the responding party to establish the applicability of one or more exemptions. Thus, even if a movant can show the Act applies under Section 2(b), the Act may nevertheless not apply if the non-movant can show the cause of action is exempt. Further discussion of how a court adjudicates whether a cause of action is exempt, including the responding party’s burden and the materials a court should review, appears in Comment 3 to Section 7.
11. The term “governmental unit or an employee or agent of a governmental unit acting in an official capacity” includes any private people or entities working as government contractors, to the extent the cause of action pertains to that government contract.
12. The term “dramatic, literary, musical, political, journalistic, or artistic work” used in Section (a)(3) should be construed broadly to include newspapers, magazines, books, plays, motion pictures, television programs, video games, or Internet websites or other electronic mediums.
13. Section 2(c)(3) carves out from the scope of the Act “communication[s] related to [a] person’s sale or lease of [ ] goods or services” when that person is primarily engaged in the selling, leasing, or licensing of those goods or services. In other words, “commercial speech” is exempted from the protections of the Act. By way of illustration, if a mattress store is sued for false statements made in its advertising of mattresses--whether by an aggrieved consumer or a competitor--the mattress store would not be able to avail itself of the Act. But if the same mattress store were sued for tortious interference for organizing a petition campaign to oppose the building of a new school, its activity would not be related to the sale or lease of goods or services, and it could use the Act for protection of its First Amendment conduct.
But the “commercial-speech exemption” does not apply to the creation, dissemination, exhibition, or advertisement of a dramatic, literary, musical, political, journalistic, or artistic work. This is consistent with the holdings of most courts that the contents of works protected by the First Amendment are not considered “goods or services,” even if sold for profit. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (“That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.”); Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1036 (9th Cir. 1991) (ideas and expressions in a book are not a product); Way v. Boy Scouts of Am., 856 S.W.2d 230, 239 (Tex. 1993) (“We conclude that the ideas, thoughts, words, and information conveyed by the magazine ... are not products.”). This ensures that claims targeting those in the business of making and selling works protected by the First Amendment are not denied the ability to invoke the Act. See Dyer v. Childress, 147 Cal. App. 4th 1273, 1283 (2007) (expressive works exception to the commercial speech exemption was “intended to ‘exempt the news media and other media defendants (such as the motion picture industry) from the [commercial-speech exemption] when the underlying act relates to news gathering and reporting to the public with respect to the news media or to activities involved in the creation or dissemination of any works of a motion picture or television studio.” ’ (citations omitted)).
42 Pa.C.S.A. § 8340.16 — Pretrial motion
- (a) Authorization.--A party may file a special motion for dismissal of or judgment on a cause of action, or part of a cause of action, based on a party’s protected public expression immunity.(b) Time.--A motion under subsection (a) must be made as follows:(1) Except as provided in paragraph (2), no later than 60 days after being served with a pleading asserting a cause of action based on protected public expression.(2) The court may extend the time under paragraph (1) upon a showing of good cause.(c) Effect.--A motion under subsection (a) does not preclude a party from asserting protected public expression immunity through other pleadings and motions under the Pennsylvania Rules of Civil Procedure.(d) Procedure.--Upon motion under subsection (a), all of the following apply:(1) Subject to paragraphs (2) and (3), the court shall hear oral argument on the motion within 60 days after the motion is filed.(2) The court may extend the time period under paragraph (1):(i) to allow discovery under subsection (f)(2)(i); or(ii) for good cause.(3) If paragraph (2) applies, the court shall hear argument as follows:(i) For an extension under paragraph (2)(i):(A) within 60 days after the court order allowing the discovery; or(B) for good cause, on the date specified by the court.(ii) For an extension under paragraph (2)(ii), on the date specified by the court.(4) In ruling on a motion under subsection (a), the court shall consider the record as defined in Pa.R.C.P. No. 1035.1 (relating to Motion for Summary Judgment. Definition), the special motion and responses and the evidence which can be considered on a motion for summary judgment under Pa.R.C.P. No. 1035.2 (relating to motion).(5) Within 60 days after hearing oral argument under paragraph (1) or (3), the court shall:(i) rule on a motion under subsection (a); and(ii) place on the record a written opinion stating its reasoning for its ruling.(e) Stay.--If a motion under subsection (a) is made, all of the following apply:(1) Except as provided in subsection (f), all other proceedings in the action are stayed. This paragraph includes discovery and the moving party’s obligation to file a responsive pleading.(2) A stay under paragraph (1) shall remain in effect until the order ruling on the motion becomes final. This paragraph includes an appeal of the order.(f) Exceptions to stay.--During a stay under subsection (e), all of the following apply:(1) A party may challenge service of a writ or complaint, personal or subject matter jurisdiction or venue.(2) A court may take any of the following actions:(i) Allow limited discovery if a party shows that specific information:(A) is necessary to establish whether a party has satisfied or failed to satisfy a burden under section 8340.15 (relating to grant of immunity); and(B) is not reasonably available unless discovery is allowed.(ii) Upon a showing of good cause, hear and rule on a request for special or preliminary injunctive relief to protect against an imminent threat to public health or safety.(iii) Upon a showing of good cause, permit a proceeding relating exclusively to a cause of action:(A) in response to which no party has asserted protected public expression immunity; and(B) which does not implicate an issue relevant to a party’s assertion of protected public expression immunity or to the cause of action for which that immunity has been asserted.(3) A party may voluntarily discontinue all or part of the party’s action.(4) A party may move to recover attorney fees, court costs and expenses of litigation under section 8340.18 (relating to awards).
UNIFORM LAW COMMENT--§ 3
1. Unlike a defense under Fed. R. Civ. P. 12(b), the motion need not be filed prior to other pleadings in the case, and a party should not be estopped from filing a motion by taking any other actions in the case.
2. The Act should apply not just to initial claims brought by a plaintiff against a defendant, but to any claim brought by any party who seeks to punish or intimidate another party for the exercise of its constitutional rights. In this connection, initial defendants frequently use their ability to bring counterclaims and crossclaims for abusive purposes, and the Act should be available to seek dismissal of such claims.
3. The terms “complaint” and “petition” are intended to include any amended pleadings that assert a cause of action for the first time in a case.
4. “Crossclaim” means a cause of action asserted between co-plaintiffs or co-defendants in the same civil action.
5. “Counterclaim” means a cause of action asserted by a party against an opposing party after an original claim has been made by that opposing party. The term should be construed synonymously with terms like “counteraction,” “countersuit,” and “cross-demand.”
6. “Third-party” claim should be construed in accordance with Fed. R. Civ. P. 14.
7. “Good cause” means a reason factually or legally sufficient to appropriately explain why the motion was not brought within the prescribed deadline. This section should not be construed to require a party to seek leave of court prior to filing a motion later than the prescribed deadline. Instead, a court should make any good-cause determination as part of its ruling on the motion under Section 8.
8. Some states may choose to title their special motion one to “dismiss,” while others may title it one to “strike.” The choice of title is not substantive in nature and does not affect uniformity or construction of the statute.
UNIFORM LAW COMMENT--§ 4
1. Section 4 furthers the purpose of the Act by protecting a moving party from the burdens of litigation--which include not only discovery, but responding to motions and other potentially abusive tactics--until the court adjudicates the motion and the moving party’s appellate rights with respect to the motion are exhausted.
2. Section 4(a)(1) provides that the stay only applies to proceedings between the parties to the motion, but Section 4(a)(2) allows the moving party to seek a stay of proceedings and discovery between other parties if there are legal or factual issues at play in those proceedings that are material to the party’s motion. Otherwise stated, if a defendant moves to dismiss a plaintiff’s cause of action, that motion should not stay proceedings or discovery between the plaintiff and other defendants--or between other defendants themselves--unless those proceedings involve legal or factual issues that are material to the motion, or the discovery is relevant to the motion.
By way of illustration, a candidate for political office sues two defendants--his opponent, for defamation over comments made about the plaintiff during the campaign, and his opponent’s campaign manager, for hacking into the plaintiff’s campaign’s computer files and erasing valuable donor lists and other data. Only the plaintiff’s opponent moves to dismiss under the Act; the campaign manager does not. In that case, the plaintiff could still proceed with discovery and dispositive motions against the campaign manager, because the claim concerning the hacking is entirely unrelated to the defamation claim. The moving defendant has no interest that would be affected by the hacking claim. But under slightly altered facts, a different outcome might exist: The plaintiff alleges that (1) the opposing campaign manager violated the plaintiff’s privacy rights by stealing sensitive personal information in the hacking incident; and (2) the opposing candidate violated the plaintiff’s privacy rights by disclosing that sensitive personal information in a speech. Again, the opposing candidate moves to dismiss under the Act; the campaign manager does not. In that case, the causes of action are so interrelated that the moving defendant would not be able to protect his interests without participating in the case against his co-defendant--something he would not have to do if he prevails on the motion. In such an example, the court should grant a request to stay the proceedings as between the plaintiff and non-moving defendant, because the moving defendant would have no way of protecting his interests without participating in the case.
3. Section 4(c) provides that all proceedings between all parties in the case are stayed if a party appeals an order under the Act. This subsection protects a moving party from having to battle related claims--some of which might be subject to a motion under the Act and some which are not--at the same time in two different courts. For example, if two plaintiffs file causes of action against a single defendant, and the defendant only moves to dismiss against one plaintiff but not the other, the defendant should be able to appeal a denial of that motion without also having to simultaneously defend related causes of action (albeit ones not subject to the Act) in the trial court brought by the other plaintiff.
By way of illustration, multiple plaintiffs--all contestants on a reality TV show contest--sue one defendant--the TV producer--in a single case for their negative treatment on the show. Each plaintiff’s claim is distinct and centers on separate statements. The defendant files a motion to dismiss under the Act against only one plaintiff. The motion is denied; the defendant appeals under Section 9. At that point, all the proceedings are stayed, because the defendant should not be required to try claims in the trial court while appealing other claims from the same case in the appellate court.
To the extent any party not subject to the motion desires to move forward in the trial court on what it believes are unrelated causes of action while the appeal of the motion’s order is pending, it retains the right under Section 4(f) to request a severance of those causes of action.
4. Section 4(d) provides the court with discretion to permit a party to conduct specified, limited discovery aimed at the sole purpose of collecting enough evidence to meet its burden or burdens under Section 7(a) of the Act. This provision recognizes that a party may not have the evidence it needs--for example, evidence of another individual’s state of mind in a defamation action--prior to filing or responding to a motion. The provision allows the party to attempt to obtain that evidence without opening the case up to full-scale discovery and incurring those burdens and costs.
5. Section 4(g) serves the ultimate purpose of the Act: to allow a party to avoid the expense and burden of frivolous litigation until the court can determine that the claims are not frivolous. In that connection, a court should be free to hear any motion that does not affect the moving party’s right to be free from an abusive cause of action, including a motion to conduct discovery on causes of action unrelated to the cause of action being challenged under the Act, and motions for preliminary injunctive relief seeking to protect against an imminent threat to public health or safety.
UNIFORM LAW COMMENT--§ 5
1. Section 5 should not be construed to prevent the parties from agreeing to a later hearing date and presenting that agreement to the court with a request to find “other good cause” for a later hearing. Nevertheless, the court, and not the parties, is responsible for controlling the pace of litigation, and the court should affirmatively find that good cause does exist independent of a mere agreement by the parties to a later hearing date.
2. The question of whether the Act requires a live hearing or whether a court may consider the motion on written submission should be governed by the local customs of the jurisdiction.
3. State law and local customs of the jurisdiction should dictate the consequences for a court failing to comply with the timelines set forth in this section.
UNIFORM LAW COMMENT--§ 6
1. The Act establishes a procedure that shares many attributes with summary judgment. See Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co., 434 P.3d 1152, 1157 (Cal. 2019) (describing the California statute as a “summary-judgment-like procedure”); Gundel v. AV Homes, Inc., 264 So. 3d 304, 312-13 (Fla. Dist. Ct. App. 2019) (equating a motion under Florida’s law to one for summary judgment). So, consistent with summary-judgment practice, parties should submit admissible, competent evidence--such as affidavits, deposition testimony, or tangible evidence--for the court to consider. See Sweetwater Union High Sch. Dist., 434 P.3d at 1157 (“There are important differences between [anti-SLAPP motions and motions for summary judgment]. Chief among them is that an anti-SLAPP motion is filed much earlier and before discovery. However, to the extent both schemes are designed to determine whether a suit should be allowed to move forward, both schemes should require a showing based on evidence potentially admissible at trial presented in the proper form.”). A court should use the parties’ pleadings to frame the issues in the case, but a party should not be able to rely on its own pleadings as substantive evidence. See id.; Church of Scientology v. Wollersheim, 49 Cal. Rptr. 2d 620, 636, 637 (Cal. Ct. App. 1996), disapproved of on another point in Equilon Enters. v. Consumer Cause, Inc., 124 Cal. Rptr. 2d 507, 519 n.5 (Cal. Ct. App. 2002). A party may rely on an opposing party’s pleadings as substantive evidence, consistent with the general rule that an opposing party’s pleadings constitute admissible admissions. See Faiella v. Fed. Nat’l Mortg. Ass’n, 928 F.3d 141, 146 (1st Cir. 2019) (“A party ordinarily is bound by his representations to a court”); PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120, 123 (2d Cir. 1984) (“[S]tipulations and admissions in the pleadings are generally binding on the parties and the Court.”).
2. The question of whether the Act requires a live hearing or whether a court may consider the motion on written submission should be governed by the local customs of the jurisdiction.
UNIFORM LAW COMMENT--§ 8
State law and local customs of the jurisdiction should dictate the consequences for a court not complying with the timelines set forth in this section.
Uniform Law:
This section is based upon Uniform Public Expression Protection Act §§ 3, 4, 5, 6 and 8. See Uniform Laws Annotated, Master Edition, or Uniform Laws Annotated on Westlaw.
Pennsylvania Opinions