Scope
Uniform Public Expression Protection Act (UPEPA)
SECTION 2. SCOPE.
(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.
Legislative Note:
Comments
§ 2 comment 1.
→ 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.").
→ 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)).
→ THOMAS R. BURKE, ANTI-SLAPP LITIGATION § 1.2 (2019).
§ 2 comment 2.
→ 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.'").
→ Williams v. Cordillera Comms., Inc., No. 2:13–CV–124, 2014 WL 2611746, at * 1 (S.D. Tex. June 11, 2014).
→ People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (4th Dist. 2004).
§ 2 comment 3.
§ 2 comment 4.
§ 2 comment 5.
→ 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)).
→ See id. at 615 ("A single cause of action ... may include more than one instance of alleged wrongdoing.").
§ 2 comment 6.
→ 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).
→ 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.").
§ 2 comment 7.
§ 2 comment 8.
§ 2 comment 9 ¶ 1.
→ 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.").
→ Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).
→ 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.
→ FilmOn.com, 439 P.3d at 1165.
§ 2 comment 9 ¶ 3.
→ Id.
→ Id. (citation omitted).
→ 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.
→ FilmOn, Inc., 439 P.3d at 1166.
§ 2 comment 9 ¶ 5.
§ 2 comment 10.
§ 2 comment 11.
§ 2 comment 12.
§ 2 comment 13 ¶ 1.
§ 2 comment 13 ¶ 2.
→ 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.").
→ 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)).
CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT
SECTION 1 ... SHORT TITLE
SECTION 2 ... SCOPE
SECTION 3 ... SPECIAL MOTION FOR EXPEDITED RELIEF
SECTION 4 ... STAY
SECTION 5 ... HEARING
SECTION 6 ... PROOF
SECTION 7 ... [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART
SECTION 8 ... RULING
SECTION 9 ... APPEAL
SECTION 10 ... COSTS, ATTORNEY'S FEES, AND EXPENSES
SECTION 11 ... CONSTRUCTION
SECTION 12 ... UNIFORMITY OF APPLICATION AND CONSTRUCTION
SECTION 13 ... TRANSITIONAL PROVISION
[SECTION 14 ... SAVINGS CLAUSE]
[SECTION 15 ... SEVERABILITY]
[SECTION 16 ... REPEALS; CONFORMING AMENDMENTS]
SECTION 17 ... EFFECTIVE DATE
ARTICLES ON ANTI-SLAPP
ARTICLES CURRENT
2021.02.26 ... The Uniform Public Expression Protection Act: Background And Underpinnings
2020.08.29 ... Federal Anti-SLAPP Legislation Re-Introduced In Congress But Needs Updating
__________
UNITED STATES ANTI-SLAPP LAWS
Arizona ..... A.R.S. § 12-751, et seq.
Alabama ..... No Anti-SLAPP statute when last checked.
Alaska ..... No Anti-SLAPP statute when last checked.
Arkansas ..... A.C.A. § 16-63-502, et seq.
California ..... C.C.P. § 425.16, et seq.
Colorado ..... No Anti-SLAPP statute when last checked.
Connecticut ..... No Anti-SLAPP statute when last checked.
Delaware ..... 10 Del.C. § 8136, et seq.
Florida ..... F.S. § 768.295
Georgia ..... Ga.C. § 9-11-11.1.
Hawaii ..... HRS § 634F-1, et seq.
Idaho ..... No Anti-SLAPP statute when last checked.
Illinois ..... 735 ILCS 110/1, et seq.
Indiana ..... I.C. § 34-7-7-1, et seq.
Iowa ..... No Anti-SLAPP statute when last checked.
Kansas ..... Kan.Stat. § 60-5320
Kentucky ..... No Anti-SLAPP statute when last checked.
Louisiana ..... C.C.P. Art. 971
Maine ..... 14 Me.R.S. § 556
Maryland ..... MD Code, Courts & Jud. Proceedings § 5-807
Massachusetts ..... M.G.L. 231 § 59H
Michigan ..... No Anti-SLAPP statute when last checked.
Minnesota ..... Mn.Stat. § 554.01, et seq.
Mississippi ..... No Anti-SLAPP statute when last checked.
Missouri ..... Mo.Stat. § 537.528
Montana ..... No Anti-SLAPP statute when last checked.
Nebraska ..... Neb.Rev.Stat. § 25-21, 242, et seq.
Nevada ..... N.R.S. § 41.635, et seq.
New Hampshire ..... No Anti-SLAPP statute when last checked.
New Jersey ..... No Anti-SLAPP statute when last checked.
New Mexico ..... N.Mex.Stat. § 38-2-9.1, et seq.
New York ..... N.Y.Civ.Rights.L. § 70-a.
North Carolina ..... No Anti-SLAPP statute when last checked.
North Dakota ..... No Anti-SLAPP statute when last checked.
Ohio ..... No Anti-SLAPP statute when last checked.
Oklahoma ..... Okla.Stat. § 12-1430, et seq.
Oregon ..... O.R.S. § 31.150, et seq.
Pennsylvania ..... 27 Pa.C.S.A. § 7707.
Rhode Island ..... R.I.Gen.Laws § 9-33-1, et seq.
South Carolina ..... No Anti-SLAPP statute when last checked.
South Dakota ..... No Anti-SLAPP statute when last checked.
Tennessee ..... Tenn.Stat. § 4-21-1001, et seq.
Texas ..... Tex.Civ.Prac. & Rem.Code § 27.001, et seq.
Utah ..... Utah Code § 78B-6-1401, et seq.
Vermont ..... 12 V.S. § 1041.
Virginia ..... No Anti-SLAPP statute when last checked.
Washington ..... Wa.Stat. § 4.24.525.
West Virginia ..... No Anti-SLAPP statute when last checked.
Wisconsin ..... No Anti-SLAPP statute when last checked.
Wyoming ..... No Anti-SLAPP statute when last checked.
District of Columbia ..... D.C.St. § 16-5501, et seq.
Guam ..... 7 G.C.A. § 17101, et seq.
Puerto Rico ..... No Anti-SLAPP statute when last checked.
U.S. Virgin Islands ..... No Anti-SLAPP statute when last checked.
FEDERAL LEGISLATION: Speak Free Act of 2015 (not enacted, presumed dead).
UNIFORM PUBLIC EXPRESSION PROTECTION ACT
CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT
SECTION 1 ... SHORT TITLE
SECTION 2 ... SCOPE
SECTION 3 ... SPECIAL MOTION FOR EXPEDITED RELIEF
SECTION 4 ... STAY
SECTION 5 ... HEARING
SECTION 6 ... PROOF
SECTION 7 ... [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART
SECTION 8 ... RULING
SECTION 9 ... APPEAL
SECTION 10 ... COSTS, ATTORNEY'S FEES, AND EXPENSES
SECTION 11 ... CONSTRUCTION
SECTION 12 ... UNIFORMITY OF APPLICATION AND CONSTRUCTION
SECTION 13 ... TRANSITIONAL PROVISION
[SECTION 14 ... SAVINGS CLAUSE]
[SECTION 15 ... SEVERABILITY]
[SECTION 16 ... REPEALS; CONFORMING AMENDMENTS]
SECTION 17 ... EFFECTIVE DATE
OTHER INFORMATIONAL WEBSITES
by Jay D. Adkisson
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