Scope Public Expression Protection Anti SLAPP

 

Adkisson's

Anti-SLAPP Laws

Anti-Strategic Lawsuit Against Public Participation

and the Uniform Public Expression Protection Act

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:

• 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.

Comments

§ 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).

§ 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 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.

• 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.

§ 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.

§ 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.

§ 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 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 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)).

 

 

 

CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

OVERVIEW

 

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

 

 

Drafting Committee for a Uniform Anti-SLAPP Act (mostly lately called the "Uniform Public Expression Protection Act"), began its project in 2017 and hopes to submit final Uniform Act by 2020. The author of this website, Jay D. Adkisson, is the American Bar Association's Business Law Section Adviser to this Committee, and the originator of this Uniform Law Commission project. Click here for more.

 

 

CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

OVERVIEW

 

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

 

 

• Jay Adkisson - More about Jay D. Adkisson, background, books, articles, speaking appearances.

 

• Captive Insurance Companies - Licensed insurance companies formed by the parent organization to handle the insurance and risk management needs of the business, by the author of the best-selling book on the topic: Adkisson's Captive Insurance Companies.

 

• Asset Protection Book - The all-time best-selling book on asset protection planning by Jay Adkisson and Chris Riser.

 

• Judgment Collection - An explanation of common creditor remedies, strategies and tactics to enforce a judgment, including a discussion of common debtor asset protection strategies.

 

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• Private Retirement Plans - An exploration of a unique creditor exemption allowed under California law which can be very beneficial but is often misused.

 

• Charging Orders - The confusing remedy against a debtor's interest in an LLC or partnership is explained in reference to the Uniform Partnership Act, the Uniform Limited Partnership Act, and the Uniform Limited Liability Company Act.

 

• Protected Series LLCs - An examination of the single most complex statutory legal structure yet created, with particular reference to the Uniform Protected Series Act of 2017.

 

• California Enforcement of Judgments Law - Considers the topic of judgment enforcement in California, including the California Enforcement of Judgments Law and other laws related to California creditor-debtor issues.

 

© 2020 by Jay D. Adkisson. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. Questions about this website should be directed to jay [at] jayad.com or by phone to 702-953-9617 or by fax to 877-698-0678. This website is https://antislapplaws.com