On July 17, 2024, Pennsylvania’s Governor signed into law the Pennsylvania Uniform Protected Public Expression Act, House Bill 1466 of the 2023 legislative session, enrolled as 2024 Act 72, which provides the Keystone State with a modern Anti-SLAPP Act. Prior to the adoption of the PUPEPA, Pennsylvania did not have anything rising to the dignity of Anti-SLAPP legislation, although there was a provision for awarding attorney fees and costs in certain environmental litigation to a successful defendant who had participating in trying to change the environmental laws, e.g., where some chemical company had sued an environmental activist lobbying for changes in those laws. So, the PUPEPA is very welcomed to protect the free expression rights of those in Pennyslvania.
Why didn’t the Pennsylvania Assembly simply adopt the UPEPA as is? The answer goes to a funky relationship between the Pennsylvania Assembly and the Pennsylvania Supreme Court. The Assembly can adopt substantive law, but the Pennsylvania state Constitution provides that procedural rules can only be adopted by the Supreme Court.
Recall that the UPEPA, like nearly all other Anti-SLAPP laws, is a law that provides for the substantive right to be free of meritless litigation in public expression cases, but it is couched in terms of a procedural statute. In other words, the UPEPA is a hybrid substantive/procedural statute. Thus, to put the UPEPA into effect in Pennsylvania requires that the Assembly promulgate some portions as statutory law (the PUPEPA) and then — at the request of the Assembly — Supreme Court next promulgates the balance of the provisions as procedural rules, which its hasn’t done as of this writing but is expected soon. This is all explained in the excellent article by Michael Berry and Leslie Minora of the Ballard Spahr law firm, Pennsylvania Protects Press Freedom, Passes Anti-SLAPP Statute (July 16, 2024), and the PUPEPA is further analyzed by Michael Berry in the article, Pennylvania’s New Anti-SLAPP Law Protect Press Freedom (Aug. 1, 2024).
Like some other states that have adopted the UPEPA, Pennyslvania has built on some of its own custom provisions, known with the uniform laws community as “non-uniform provisions”. As I have frequently explained, there is nothing wrong with this so long as these non-uniform provisions do not stray too far from the purposes of the UPEPA, and in fact experimentation by the states can ultimately lead to better laws for everybody.
Having said that, the PUPEPA significantly expands certain sections of the UPEPA, such as including a definitional section, and expanded list of actions that are excluded from the scope of actions amenable to the motion that is filed, and numerous other provisions that the UPEPA considered but did not include as they were left to the discretion of the courts. The UPEPA also changes some terms so that “immunity” or the “party asserting immunity”, etc. Also, there does not appear to be a clause requiring the uniformity of construction with the UPEPA in other states, i.e., all courts in all states are to strive for their interpretation of the UPEPA provisions to be consistent with each other, which is one of the primary benefits of having uniform legislation in the first place.
Still, at the end of the day, there is no doubt that the PUPEPA faithfully follow the UPEPA in substance and structure. Pennsylvania now certainly has a Grade A quality Anti-SLAPP statute where it really didn’t have one at all before. Moreover, watching how some of these non-uniform provisions will be interpreted will be very interesting going forward.
Read the full article here
