Pennsylvania's New Anti-SLAPP Law Protects Press Freedom

Reprinted with permission from The Legal Intelligencer, August 1, 2024. © 2024 ALM Global, LLC. All rights reserved.

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By Michael Berry

We are blessed to live in a country with strong First Amendment freedoms. Thanks to legislation recently passed by the General Assembly and signed by Gov. Josh Shapiro, the people of Pennsylvania now have greater protection when they exercise those freedoms.

The tort of defamation protects people’s reputations and is an important check on free speech. It serves a valuable role in protecting people from being smeared by materially false statements of fact. But, all too often, people in the public eye have used defamation claims to punish critical news reporting and stifle critical commentary. These kinds of claims are SLAPP suits—Strategic Lawsuits Against Public Participation. For far too long, they have been tolerated in Pennsylvania. For years, the message to journalists and commentators in Pennsylvania has been “proceed at your peril.” Plaintiffs have been allowed to pursue baseless claims and thereby force journalists and others to incur substantial costs to defend themselves. The result has been to deter some people from speaking out on matters of public concern and to compromise our commitment to freedom of speech.

Earlier in the month, Pennsylvania took a big step to ending this practice. Shapiro signed a new anti-SLAPP law, Act 72 of 2024, which both the state House and Senate passed unanimously. In enacting this statute, Pennsylvania joins more than 30 states that have anti-SLAPP laws.

The new statute, titled the Uniform Public Expression Protection Act, builds on a model act proposed by the Uniform Law Commission and the collective experience of states with existing anti-SLAPP laws, while also accounting for distinctive features of our commonwealth’s Constitution and Pennsylvania legal practice.

At its core, Act 72 is designed to deter meritless defamation suits and allow parties subjected to such suits to recover the attorney’s fees they are forced to incur for defending against those claims. The law achieves this objective through its substantive provisions.

Specifically, the Act provides immunity from civil liability for any claim based on “protected public expression.” The statute defines “protected public expression” to include communications in government proceedings, communications about an issue under consideration in a government proceeding, or communications on a matter of public concern.

So, for example, the immunity can be invoked if a newspaper is sued for reporting on an issue impacting a local community or editorializing about the actions of a public official.

The law’s immunity does not extend to various kinds of claims. For instance, it does not apply to claims asserted against government agencies or employees acting in official capacities; claims arising under statutes involving protection from abuse and protection of victims of sexual violence or intimidation; and claims to enforce nondisparagement or noncompete agreements, misappropriation of trade secrets, and a variety of internal corporate disputes.

The immunity is granted if the party asserting a claim based on protected public expression fails to “establish a prima facie case as to each essential element” of its claim, “fails to state a cause of action upon which relief can be granted,” or “there is no genuine issue as to any material fact, and the person against whom the cause of action … has been asserted is entitled to judgment as a matter of law.” In other words, the immunity applies if the plaintiff cannot meet the standard for a demurrer or for summary judgment.

If a party is immune from suit under this provision—that is, if the claim against it fails as a matter of law for any of the three reasons set out in the statute—then, it is entitled to recover its attorney’s fees and costs. As a result, people subjected to SLAPP suits will be made whole for defending against meritless claims.

On the flip side, if a court determines that a party asserts the immunity frivolously or solely for the purpose of delaying the proceeding, the opposing party is entitled to recover its attorney’s fees and costs. This provision ensures the new law is not misused or abused.

Any determination of whether the immunity applies is subject to immediate appeal. The ability to take an interlocutory appeal as of right provides a safety valve so that people are not subjected to the burdens of ongoing litigation if a request for immunity is denied erroneously. Act 72 also creates a new cause of action for a party previously subjected to a SLAPP suit: If the party’s immunity was not determined in the prior litigation, it can file a new claim and recover the attorney fees and costs it incurred defending against the SLAPP suit.

The statute’s fee-shifting provision and its new cause of action should apply in both state and federal court. In recent years, some federal courts have held that various states’ anti-SLAPP laws do not to apply in federal court because they are procedural. Unlike those laws, Act 72’s fee-shifting is not tied to any particular procedure. Instead, a party subjected to any claim based on “protected public expression” is entitled to recover its fees if the claim is dismissed as a matter of law. A party is free to raise the immunity in preliminary objections in state court (or motion to dismiss in federal court), a motion for judgment on the pleadings, at summary judgment, or even on a directed verdict. Thus, the fee-shifting provision and new cause of action should be deemed substantive laws that apply in federal court.

Act 72 also provides that the immunity can be invoked through a new expedited special motion to dismiss. But, in accordance with the Pennsylvania constitutional requirement that only the Supreme Court can enact court procedures, the provisions relating to that motion will go into effect only if and when they are approved by the Supreme Court.

Act 72 provides a significant safeguard for speakers across the political spectrum. It ensures that people can continue to pursue meritorious defamation claims, while also serving to deter baseless suits. And, just as importantly, it makes sure that speakers subjected to SLAPP suits are not out-of-pocket when they are forced to defend against meritless claims. Ultimately, through these protections, Act 72 promotes public discourse and serves to protect our freedom of speech.

Michael Berry is a partner at Ballard Spahr, where his practice focuses on representing media clients in First Amendment matters, including in defending them against defamation and other claims arising from their newsgathering and reporting. He was instrumental in drafting the legislation that became Act 72.

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(No claim to original U.S. government material.)

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