An Anti-SLAPP Bill That Packs a Powerful Punch
Strategic lawsuits against public participation (SLAPP) are lawsuits intended to intimidate or punish those engaged in constitutionally protected activity by, essentially, suing them into submission or silence through the prospect of costly and time-consuming litigation. Thirty-two states have enacted some form of anti-SLAPP legislation designed to weed out these cases and, in most instances, provide for dismissal of such actions early in the process. New Jersey is not one of those states.
That may soon change. State Senate Bill S2802, the Uniform Public Expression Protection Act (the “Act”), and its Assembly counterpart, A4393, were introduced in June 2022 and provide an expedited process for dismissal of SLAPP actions. The legislation is modeled after the Uniform Public Expression Protection Act (UPEPA) drafted by the National Conference of Commissioners on Uniform State Laws and approved and recommended by it in 2020 for enactment in all states.
The Act would apply to a civil cause of action against a person based on the person’s (1) communications during a legislative, executive, judicial, administrative, or other governmental proceeding; (2) communications on an issue under consideration or review by such a body; or (3) engagement in any other activity that is protected by the First Amendment freedoms guaranteed by the United State Constitution or New Jersey Constitution and that relates to a matter of public concern.
The proposed legislation is intended to deter SLAPP plaintiffs by suspending such litigation pending the outcome of an early motion to dismiss. In particular, the proposed legislation would:
- permit a party to file a special motion for expedited relief to dismiss the cause of action in whole or in part
- provide that, with limited exceptions, upon the filing of such a motion, all other proceedings including discovery are stayed until the motion is decided and the time to appeal has expired
- provide for an appeal as of right from an order denying, in whole or in part, the expedited motion, the appeal of which would generally stay the action
- award court costs, reasonable attorney’s fees, and reasonable litigation expenses related to the motion to the prevailing party, except that, in the case of a prevailing plaintiff, the court must also find that the motion was frivolous or filed solely with intent to delay the proceeding
Anti-SLAPP legislation is supported by groups across the political spectrum. We will continue to monitor this legislation to see whether the legislature passes it, the Governor signs it, and New Jersey thus follows the majority of states in enacting anti-SLAPP legislation.