Gavin Howe
In 2023, Utah passed a new anti-SLAPP law to protect free speech against retaliatory lawsuits. SLAPP stands for strategic lawsuits against public participation, and they are used to intimidate critics by burdening them with legal fees. Utah originally adopted an anti-SLAPP law in 2001, but it was considered ineffective and received a D- rating from the Institute for Free Speech. The new law, called the Public Expression Protection Act, seeks to address the limitations of the previous law and provide stronger protections for free speech.
| Characteristics | Values |
|---|---|
| Year of implementation of the new anti-SLAPP law | 2023 |
| Name of the new anti-SLAPP law | Public Expression Protection Act |
| Other names of the new anti-SLAPP law | Uniform Public Expression Protection Act (UPEPA) |
| Previous rating of Utah's anti-SLAPP law | D- |
| Current rating of Utah's anti-SLAPP law | A- |
| Previous limitations of the anti-SLAPP law | High burden of proof on defendants, limited scope, no provision for attorney fees |
| New provisions of the anti-SLAPP law | Broad interpretation of the law, provision for attorney fees, deterrence of forum shopping |
| Scope of the new anti-SLAPP law | Any exercise of First Amendment rights on a matter of public concern |
| Exclusions from the new anti-SLAPP law | Suits against government employees and entities, suits for public health or safety, suits against businesses selling or leasing goods or services |
| Time limit for filing a special motion to dismiss a claim | 60 days |
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What You'll Learn
- Utah's anti-SLAPP law covers lawsuits based on communications in a government proceeding
- The defendant must establish their speech is covered by the Act's scope for the SLAPP to be dismissed
- The Uniform Public Expression Protection Act (UPEPA)
- The previous anti-SLAPP law was rated D- by the Institute for Free Speech
- The new law will help deter forum shopping
Utah's anti-SLAPP law covers lawsuits based on communications in a government proceeding
Utah's anti-SLAPP law, the Public Expression Act, was signed into law in 2023. The law enacts the Uniform Public Expression Protection Act (UPEPA) and applies to lawsuits based on a person's communications in a government proceeding. This includes legislative, executive, judicial, administrative, or other government proceedings, as well as communications on issues under consideration by these bodies.
Utah's previous anti-SLAPP law covered only defendants who believed they had been sued primarily for their participation in the "process of government" and as a means of harassment. The new law, however, provides broader protection and applies to any exercise of First Amendment rights on a matter of public concern. It instructs courts to interpret the law broadly to protect such rights.
The UPEPA also exempts suits against government employees and entities acting in their official capacities, suits brought by the government to enforce public health or safety measures, and suits against people primarily engaged in the business of selling or leasing goods or services if the communications at issue are related to that business. Defendants have 60 days after a claim is brought to file a special motion to dismiss the suit.
Utah's adoption of the UPEPA is significant as it is a clean" version of the act, meaning it was adopted without any changes or amendments. This makes Utah the first state to interpret the UPEPA in its purest form. The UPEPA has also been adopted by Hawaii, Kentucky, and Washington, while several other states are considering its enactment.
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The defendant must establish their speech is covered by the Act's scope for the SLAPP to be dismissed
Utah has adopted the Uniform Public Expression Protection Act (UPEPA), which came into effect on May 3, 2023. This new statute dramatically improves Utah's anti-SLAPP law, which previously received a “D-" grade from the Institute for Free Speech.
Under the UPEPA, Utah's anti-SLAPP law now covers any exercise of First Amendment rights on a matter of public concern and instructs courts to interpret the law broadly to protect such rights. This means that to have a SLAPP suit dismissed, the defendant must first establish that their speech is covered by the Act's scope, and the plaintiff must fail to counter this. Once this threshold is established, the court will dismiss the case if either:
- The plaintiff fails to establish a prima facie case for each essential element of their claims.
- The defendant shows that the plaintiff has failed to state a claim upon which relief can be granted (using the same standard as a traditional motion to dismiss) or that there is no genuine issue of material fact, and the defendant is entitled to judgment as a matter of law (the same standard as a traditional motion for summary judgment).
If the court denies the anti-SLAPP motion, the defendant may appeal within 30 days. Additionally, defendants have 60 days after a claim is brought to file a special motion to dismiss the suit.
Utah's anti-SLAPP law is relatively narrow in scope compared to other states. It exempts lawsuits against government employees and entities acting in their official capacities, suits brought by the government to enforce public health or safety measures, and suits against people primarily engaged in the business of selling or leasing goods or services if the communications are related to that business.
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The Uniform Public Expression Protection Act (UPEPA)
The UPEPA puts the burden of proof on the plaintiff when responding to an anti-SLAPP motion. The plaintiff must establish a prima facie case as to each essential element of their claims and demonstrate that they can overcome any applicable First Amendment protection early in the litigation process. If the plaintiff fails to do so, the court will dismiss the case. Alternatively, the defendant can win the anti-SLAPP motion by showing that the plaintiff has failed to state a claim or that there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law.
The UPEPA also minimises litigation costs by allowing defendants to file an anti-SLAPP motion in court. The filing of this motion automatically halts all proceedings until the court rules on the motion. Additionally, the UPEPA provides for the right to an immediate appeal of an anti-SLAPP motion ruling, reducing the coercive and punitive nature of litigation.
Utah adopted the UPEPA in 2023 to update its anti-SLAPP laws, joining states like Hawaii, Kentucky, and Washington. The UPEPA in Utah covers lawsuits based on an individual's communications in government proceedings or on issues under consideration by government bodies. It also exempts suits against government employees and entities acting in their official capacities and suits against businesses related to their commercial communications. Utah's previous anti-SLAPP law, which had been rated as "D-" by the Institute for Free Speech, was considered relatively narrow in scope. The adoption of the UPEPA is expected to significantly improve Utah's anti-SLAPP legislation.
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The previous anti-SLAPP law was rated D- by the Institute for Free Speech
The Institute for Free Speech (IFS) is an organisation that promotes and defends the First Amendment rights to free speech, assembly, publication, and petitioning the government. The IFS tracks the strength of anti-SLAPP laws in the United States, and in their 2022 Anti-SLAPP Report Card, Utah's previous anti-SLAPP law was rated D- (almost worthless).
The previous anti-SLAPP law in Utah was narrow in scope. It covered only defendants who believed they had been sued primarily for their participation in the "process of government" and as a means of harassment. The law also had a limited definition of what constituted a SLAPP (strategic lawsuit against public participation) defendant.
In 2023, Utah adopted the Uniform Public Expression Protection Act (UPEPA), which dramatically improved the state's anti-SLAPP law. The new statute covers any exercise of First Amendment rights on matters of public concern and instructs courts to interpret the law broadly to protect such rights. The UPEPA allows for the early dismissal of baseless claims, stays discovery, and grants an immediate right to appeal. It also includes a fee-shifting provision that deters abusive litigation.
Utah's UPEPA is a "clean" version of the model UPEPA, meaning it was adopted without the alterations made by other states. This makes Utah an interesting test case for how the UPEPA will be interpreted in its purest form. The adoption of the UPEPA is expected to bring Utah into the "A-" range under the IFS's ratings, joining the top-rated states that have also adopted the UPEPA: California, Nevada, Hawaii, Kentucky, and Washington.
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The new law will help deter forum shopping
In 2023, Utah adopted the Uniform Public Expression Protection Act (UPEPA), which enacts the Uniform Public Expression Protection Act. This new law represents a dramatic improvement for Utah, which previously received a D- grade in the 2022 Anti-SLAPP Report Card by the Institute for Free Speech.
Utah's new anti-SLAPP law will help deter forum shopping by creating uniformity with other states that have adopted the UPEPA. Forum shopping is when plaintiffs file SLAPP suits in a state without an anti-SLAPP law or with a weak anti-SLAPP law to take advantage of favourable laws and jurisdictions. By adopting the UPEPA, Utah's anti-SLAPP law is now aligned with other states, making it more difficult for plaintiffs to forum shop.
Previously, Utah's anti-SLAPP law only covered defendants who believed they were sued primarily for their participation in the "process of government" and as a means of harassment. The new law covers any exercise of First Amendment rights on a matter of public concern and instructs courts to interpret the law broadly to protect such rights. This broader scope makes it less likely that plaintiffs can find loopholes in the law to forum shop.
In addition, the new law provides for interlocutory appeal of an order denying an anti-SLAPP motion, allowing defendants to challenge the ruling and seek costs, attorney's fees, and expenses. This creates a stronger deterrent for plaintiffs considering forum shopping as they now face a higher risk of having to pay the defendant's legal costs.
Overall, Utah's new anti-SLAPP law will help deter forum shopping by creating uniformity with other states, broadening the scope of protected speech, and providing stronger deterrents for abusive plaintiffs.
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Frequently asked questions
Yes, Utah has an anti-SLAPP law.
SLAPP stands for "strategic lawsuit against public participation".
The law aims to protect free speech and prevent retaliatory lawsuits.
Utah's anti-SLAPP law was passed in 2001 and updated in 2023 with the adoption of the Uniform Public Expression Protection Act (UPEPA).
