This is my second installment of a series of articles that will explore the Uniform Public Expression Protection Act, or “UPEPA”. I must again give the caveat that while I served as an American Bar Association adviser to the drafting committee of the UPEPA, the comments and viewpoints herein are mine and mine alone, and are not those of either the Uniform Law Commission (ULC) or the American Bar Association (ABA); further, others on the drafting committee might well disagree (perhaps vehemently) on certain points.
In our previous episode, The Uniform Public Expression Protection Act: The Three-Phase Analysis, we looked at how UPEPA operates in general to dispose quickly of abusive lawsuits, while allowing meritorious lawsuits to pass on towards trial. We will now examine the extent to which speech and conduct is protected, or not, by the UPEPA — which is known as the “scope” of the Act.
Scope provides the initial test under UPEPA: If the speech or conduct does not fall within scope of the UPEPA, then a motion under UPEPA is not appropriate, should not be brought in the first place, and if it is brought then it should be immediately overruled and the case allowed to proceed in the normal course. On the flip side, if the speech or conduct does fall within the scope of the UPEPA, then by doing no more than making that singular showing, a defendant may properly tee up a UPEPA motion and require the court’s further examination of the issues.
The scope of the UPEPA is set forth in section 2, which is arranged by three subsections as follows:
Subsection (a) gives the definitions for the section;
Subsection (b) defines what is included within the scope of the UPEPA; and
Subsection (c) defines what is excluded from the scope of the UPEPA.
It is here that we find the so-called “chassis approach” of the UPEPA. During the drafting process, it was realized that some states may decide to add or subtract certain things from the scope of the UPEPA based on their local concerns. The organization of section 2 makes it easy for the states to do this. Very simply, if a state wants to add something to the coverage of the UPEPA then it places that in subsection (b), and if a state doesn’t want something covered by the UPEPA then that goes in subsection (c). The UPEPA thus provides the “chassis” upon which states can easily modify the scope of their own versions of the Act, should they choose to do so, without too much risk of unforeseen consequences caused to other sections.
Setting aside the definitions for now, let’s first look at what is included within the scope of UPEPA under subsection 2(b).
2(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:
Subsection 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.
For 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.
Subsection 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.
Note that the burden of proof, and ultimately on persuasion, is upon the defendant to show that the speech or conduct which is the subject of the cause of action falls within the ambit of the UPEPA’s scope.
Subsection 2(b) describes three categories of speech and conduct that falls within the scope of the UPEPA. The first of these categories follows.
2(b)(1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
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 to the commission 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 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 under § 2(b)(1). Note that Jane might still be able to assert a UPEPA motion under § 2(b)(3), however.
Let’s now move on to the second category of those things falling within the scope of the UPEPA protections.
2(b)(2) communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or
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. For 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). Note that Jane might still be able to assert a UPEPA motion under § 2(b)(3), however.
We now turn to the third and final category of matters that are protected under the UPEPA.
2(b)(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.
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 press
- 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.
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 academic and professional pages have been written over more than two centuries. 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.
The second, and much more dramatic, limitation is that the speech or conduct be “on a matter of public concern.” It is on this issue that much of the litigation involving Anti-SLAPP motions has revolved, and the same will likely be true for the UPEPA as well.
The UPEPA Reporter’s Comment to § 2(b)(3) notes that the California courts have addressed the public concern element with a two-part analysis. The first prong focuses on whether a public issue or matter of public interest exists at all, which is not difficult for a defendant to meet. The second prong is more difficult for defendants to meet, however, since it looks for some functional relationship between the speech and the “public conversation” about the issue or matter. That functional relationship means that the speech is not simply about the issue or matter, but in some way (however slight) seeks to further it.
We’ve now discussed §2(b) which says what UPEPA protects against. Now let’s examine § 2(c) which excludes certain things from those protections.
2(c) This [act] does not apply to a [cause of action] asserted:
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. It is here that the burden of proof, and ultimately of persuasion, transitions to the plaintiff who is bringing the allegedly-offensive cause of action, i.e., it is the plaintiff who must show that one or more of the following carve-outs applies to avoid a UPEPA special motion.
The first carve-out follows.
2(c)(1) against a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity;
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”.
The second carve-out follows.
2(c)(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
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”.
We now reach the third carve-out.
2(c)(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.
This is known as the commercial speech carve-out, and it exists for the historical reason that Anti-SLAPP motions were at one time or another (particularly in Texas) horribly misused to cause delays in garden-variety commercial cases having very little if anything to do with traditional protected speech, or to try to force an early resolution in those states whose civil procedure codes or rules do not permit motions to dismiss. Thus, this exception exists to reinforce that UPEPA’s scope does not include commercial speech, subject to the “exception to the exception” next to be discussed.
It is here that we must return to the previously-jumped definitional § 2(a):
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.
Think of a documentary film, which is created for the purpose of generating a profit (and thus is “commercial speech”), but which also furthers some journalistic goal that would ordinarily be protected by the First Amendment’s free speech clause. The purpose of § 2(a)(1) is to drag that production back into the scope and thus the protections of the UPEPA.
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.
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.
One might look at the UPEPA in the whole as the procedural boxing ring that is created by UPEPA for the litigants to duke it out over the substantive law created by the First Amendment or other constitutional law. In this analogy, section 2 says who gets to step in to the boxing ring, or not. How section 2 operates really isn’t rocket-science but instead is quite straightforward and easily understandable in the abstract. The issues involved in this section, however, will be where most of the action will take place in terms of litigation since it is here that the gnarly technical issues of whether something is constitutionally-protected speech or conduct will come to the fore ⸺ and that is exactly why so many Anti-SLAPP lawyers are also hardcore First Amendment lawyers.
In the next installment, we will look at the mechanics of a UPEPA special motion under section 3. Stay tuned.
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