UPEPA02 Scope ScopePublicExpressionProtectionAntiSLAPP
SECTION 2. SCOPE.
(Without Commentary — With Commentary Interlineated Is Below)
(a) In this section:
(1) "Goods or services" does not include the creation, dissemination, exhibition, or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic, or artistic work.
(2) "Governmental unit" means a public corporation or government or governmental subdivision, agency, or instrumentality.
(3) "Person" means an individual, estate, trust, partnership, business or nonprofit entity, governmental unit, or other legal entity.
(b) Except as otherwise provided in subsection (c), this [act] applies to a [cause of action] asserted in a civil action against a person based on the person's:
(1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
(2) communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or
(3) exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or [cite to the state's constitution], on a matter of public concern.
(c) This [act] does not apply to a [cause of action] asserted:
(1) against a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity;
(2) by a governmental unit or an employee or agent of a governmental unit acting in an official capacity to enforce a law to protect against an imminent threat to public health or safety; or
(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.
SECTION 2. SCOPE.
(With Commentary Interlineated)
Legislative Note:
If a state does not use the term "cause of action", the state should use its comparable term, such as "claim for relief" in subsections (b) and (c).
The state also should substitute its comparable term for the term "[cause of action]" in Sections 3, 4(f), 7, 13, and 14.
JayNote:
Section 2 effectively defines the types of causes of action against which which a UPEPA special motion may be brought, or not.
§ 2 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 comment 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).
As 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).
(a) In this section:
(1) "Goods or services" does not include the creation, dissemination, exhibition, or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic, or artistic work.
§ 2 comment 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.
(2) "Governmental unit" means a public corporation or government or governmental subdivision, agency, or instrumentality.
JayNote:
This is a standard ULC definition, and may practically be equated with "any governmental body".
(3) "Person" means an individual, estate, trust, partnership, business or nonprofit entity, governmental unit, or other legal entity.
JayNote:
This is a standard ULC definition, and "person" may be practically equated with "anybody or anything who has the legal stature to defend a lawsuit.
(b) Except as otherwise provided in subsection (c), this [act] applies to a [cause of action] asserted in a civil action against a person based on the person's:
JayNote:
Section 2(b) makes clear that a UPEPA special motion is only and exclusively available to a "cause of action" (or its equivalent, depending on the jurisdiction), but is not available to a mere motion.
Example. Neighbor brings a suit for defamation against neighbor. The UPEPA special motion is available. By contrast, party in lawsuit brings a Motion in Limine to preclude certain testimony at trial. The Motion in Limine is not a "cause of action" and so therefore a UPEPA special motion is not available to contest the motion.
Section 2(b) also makes clear that a UPEPA special motion is only available to civil actions, as defined by local state law, but which will almost always not be available at least most garden-variety criminal proceedings. To the extent that a cause of action might be of a mixed criminal-civil nature, the UPEPA special motion should be available to the extent that the cause of action is civil in nature, and not available to the extent that it is criminal in nature. Practically, the court should look at the nature of the proceedings: If criminal procedure with its heightened due process protections is utilized, then the UPEPA special motion will not be available, but if civil procedure is used even for a cause of action based on criminal law (i.e., a civil suit for damages based on the violation of a criminal statute), then the UPEPA special motion should be available to the defendant.
Section 2(c) provides the exceptions to the availability of a UPEPA special motion a/k/a the "carve outs".
§ 2 comment 3.
The statute is only applicable to civil actions.
It has no applicability in criminal proceedings.
§ 2 comment 4.
The term "civil action" should be construed consistently with Fed. R. Civ. P. 1.
§ 2 comment 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.
§ 2 comment 7.
Sections 2(b)(1)-(3) identify three different instances in which the Act may be utilized.
(1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
JayNote:
Section 2)(b)(1) effectively asks, "Where was the communication said?" If the communication was made in a protected setting, such as a hearing on something or other, or in a court proceeding, then the communication will be protected by a UPEPA motion under this section.
What is unsaid but reasonably inferred is that the communication must have some minimal relation to the proceeding. For example:
Appearing before a county development commission to oppose a project of real estate developer Bill, Jane states that "Bill is a child molester." Bill later sues Jane for defamation based on that comment. Because the statement was made in a governmental proceeding, and had at least a minimal relations to that proceeding, Jane may assert a UPEPA special motion to strike based on § 2(b)(1).
By contrast, Jane is sitting in the audience watching a trial, and says to Betty, "Bill is a child molester." Although the statement was made within the environs of the courtroom (a protected setting), Jane's comment is not a communication in that proceeding, and thus Jane may not assert a UPEPA motion to strike under § 2(b)(1) [Jane might still be able to assert a UPEPA motion under § 2(b)(3), however.]
§ 2 comment 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.
§ 2 comment 7.
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.
(2) communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or
JayNote:
Section 2(b)(2) effectively asks, "What does the communication relate to?" If the communication relates to an issue involved in governmental proceeding, then the communication will be protected by a UPEPA special motion under this section — even if the communication was not actually made at a hearing.
As with 2(b)(1), what is unsaid is that the communication must have some minimal relationship to the proceeding.
Example. A county development commission is considering a project of real estate developer Bill. In a letter to one of the commissioners protesting the development, Jane states that "Bill is a child molester." Bill later sues Jane for defamation based on that comment. Because the statement was made in a governmental proceeding, and had at least a minimal relations to that proceeding, Jane may assert a UPEPA special motion to strike based on § 2(b)(2).
By contrast, Jane sends an e-mail to Betty having nothing to do with the project, stating that, "Bill is a child molester." Although the statement was made while proceedings involving Bill were ongoing, Jane's comment is not a communication on an issue in that proceeding, and thus Jane may not assert a UPEPA motion to strike under § 2(b)(1) [Jane might still be able to assert a UPEPA motion under § 2(b)(3), however.]
§ 2 comment 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.
§ 2 comment 7.
Section 2(b)(2) operates similarly [to (1)], 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.
(3) exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or [cite to the state's constitution], on a matter of public concern.
JayNote:
The ambit of § 2(b)(3) is so broad that it arguably renders §§ 2(b)(1) and (2) superfluous, since § 2(b)(3) effectively states that if whatever the defendant said or did is protected by either the U.S. or applicable state constitution, the defendant has available the UPEPA motion to strike. There are two limitations, however.
The first limitation of § 2(b)(3) is that the speech or conduct must fall within at least one of four finite guarantees, being
Freedom of speech (which can include conduct that amounts to speech, such as the burning of a flag);
Freedom of the right to assemble or petition (the latter of which includes the filing of a lawsuit or administrative claim, etc.); and
Freedom of association.
The second, and much more dramatic, limitation is that the speech or conduct be "on a matter of public concern."
Suffice it to say that a discussion of these issues is far beyond the purview of this commentary, as it would included, among other things, a discourse on nearly the entirety of American defamation law of which literally billions of pages have been written.
The critical point is that if the defendant could assert a constitutional defense to the plaintiff's cause of action, then the UPEPA special motion is available to that defendant.
§ 2 comment 7.
Section 2(b)(3) operates differently than [2(b)](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.
§ 2 comment 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.
§ 2 comment 9 ¶ 1.
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).
§ 2 comment 9 ¶ 2.
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.
§ 2 comment 9 ¶ 3.
"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)).
§ 2 comment 9 ¶ 4.
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.
§ 2 comment 9 ¶ 5.
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.
(c) This [act] does not apply to a [cause of action] asserted:
JayNote:
Section 2(c) provides the so-called "carve outs" from UPEPA coverage, i.e., those causes of action to which a UPEPA special motion is not available.
§ 2 comment 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.
(1) against a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity;
JayNote:
A UPEPA special motion is generally not available to a "governmental unit" as defined in § 2(a)(2), or to a government employee or agent acting under color of their official capacity. Note that this is a one-way street: A private litigant can bring a UPEPA special motion against a lawsuit brought by a governmental unit, but a governmental unit cannot bring a UPEPA special motion against a private litigant except in the limited circumstances described in the following § 2(c)(2). This result is accomplished by the use of the word "against".
§ 2 comment 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.
(2) by a governmental unit or an employee or agent of a governmental unit acting in an official capacity to enforce a law to protect against an imminent threat to public health or safety; or
JayNote:
A UPEPA special motion is available to a "governmental unit" as defined in § 2(a)(2), if the governmental unit is attempting to take some immediate litigation action to protected against a threat to public health or safety which is imminent, i.e., a dire emergency. This very limited exception permits a governmental unit to use a special motion to obtain an early dismissal of an abusive or frivolous action meant to stop the governmental unit from addressing the dire emergency. The limiting word here is "imminent" ⸺ which means that the threat is (1) very likely to occur, and (2) will happen pretty quickly. The use of "imminent" keeps a governmental unit from using a UPEPA special motion for ordinary or run-of-the-mill lawsuits, considering that attorneys for governmental units are artists at characterizing pretty much anything as a "threat to public health or safety".
§ 2 comment 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.
(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.
JayNote:
Note that in the definitional § 2(a):
(1) "Goods or services" does not include the creation, dissemination, exhibition, or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic, or artistic work.
Here is how this works: First, the scope of the UPEPA includes speech. Second, however, there is a "carve out" in § 2(c)(3) for what amounts to commercial speech, which is not protected by UPEPA. Third, there is a "carve out from the carve out" in § 2(a)(1), which excludes certain speech from commercial speech, and which is therefore protected under UPEPA.
And, yes, it would have made much more sense to simply make § 2(a)(1) the second sentence of § 2(c)(3), but the ULC's Style Committee has inane rules which prevent that common-sense organization, so it is what it is.
§ 2 comment 13 ¶ 1.
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.
§ 2 comment 13 ¶ 2.
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)).
ARTICLES
- 2021.05.11 ... The Uniform Public Expression Protection Act: Scope And Applicability
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