The Uniform Public Expression Protection Act (UPEPA) was ratified by the New Jersey legislature on June 27, 2023, as Senate Bill 2802, which you can read here. The New Jersey Governor’s signature is anticipated momentarily, and the Act will go into effect thirty days later.
As with all UPEPA enactments, there are a few local idiosyncrasies that will be described below (referred to as “non-uniform amendments”), but the New Jersey UPEPA is relatively devoid of such amendments. The adoption of the UPEPA provides New Jersey with one of the world’s most robust Anti-SLAPP statutes.
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The passage of the UPEPA in New Jersey is also a landmark for free expression. According to David Keating of the Institute for Free Speech, when S.B. 2802 becomes law, “the majority of the nation’s population will reside in a jurisdiction with a relatively robust anti-SLAPP law—a “B” or higher on our report card. Nearly 80 percent of the population would reside in jurisdictions with anti-SLAPP statutes.
As I have previously described, Anti-SLAPP laws primarily serve to eliminate meritless lawsuits filed in violation of a defendant’s First Amendment rights to free speech and to seek redress.
Thus, defendants who exercise these rights are not subjected to protracted litigation only to have a frivolous case brought by an abusive litigant tossed out in the end.
In lieu of a “motion for expedited relief,” a party pursuing an Anti-SLAPP motion in New Jersey will submit an “application to show cause” (also known as an “OSC”). This is, of course, merely a change in terminology and does not affect the substance of the UPEPA promulgated by the Uniform Law Commission.
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This is an excellent opportunity to improve the Anti-SLAPP Acts, which I would divide into four categories.
Category I: The finest anti-SLAPP statutes are UPEPA-based. The reason for this is uniformity, which allows the courts of a state or territory that adopts the UPEPA to rely on the court opinions of other UPEPA jurisdictions to resolve specific issues, thereby creating a more robust body of law. As we will see next, this is not a minor advantage.
Categorization II: The second-best anti-SLAPP statutes are those that are advanced but not uniform because they have not adopted the UPEPA. Included in this group are California, Nevada, New York, and Texas.
The problem with these statutes is that, in the absence of guidance from the decisions of other states, the courts in these states have occasionally interpreted them in ways that have veered off into the weeds, and no one has ever attempted to rectify them.
Court opinions from the California Supreme Court have adopted positions that contradict the plain text of the California statute, primarily because the California statute has become largely obsolete. Similarly, the Supreme Court of Nevada has issued opinions that have aroused eyebrows. Numerous attempts at amending the Texas Citizens Participation Act have been ill-advised due to its numerous flaws.
We’ll have to see if New York’s new Anti-SLAPP law faces similar difficulties. The majority of Anti-SLAPP laws in the United States probably fall into this category.
Category III: These are jurisdictions that have adopted Anti-SLAPP statutes, but those statutes were so poorly drafted as to render them virtually ineffective. The law of Arizona is an excellent example of this. These states’ anti-SLAPP statutes are marginally superior to those in the next category.
Category IV: These jurisdictions lack Anti-SLAPP legislation.
One of the primary goals of the UPEPA initiative was to provide the most up-to-date Anti-SLAPP statute, primarily for adoption by jurisdictions in Categories III and IV but also for jurisdictions in Category II desiring the great benefits of decisional uniformity.
Uncertainty exists as to whether these Category II states will abandon their existing quality acts for the UPEPA. In the meantime, the ratification of the UPEPA continues at a satisfactory rate, which is beneficial for the protection of some of our essential rights.
