The New Jersey legislature has adopted the Uniform Public Expression Protection Act (UPEPA) on June 27, 2023, as Senate Bill 2802 which you can read here. Signing by the New Jersey Governor is expected shortly, and the Act goes into effect 30 days after that. As will all UPEPA enactments, there are some local quirks that shall be described below (known as “non-uniform amendments”), but generally the New Jersey UPEPA is relatively clean of such amendments. Adoption of the UPEPA gives New Jersey one of the strongest Anti-SLAPP acts in the world.
New Jersey’s adoption of the UPEPA also marks a milestone for free speech. According to David Keating of the Institute for Free Speech, when S.B. 2802 becomes law, “a majority of the nation’s population will live in a jurisdiction with a relatively strong anti-SLAPP law – meaning a grade of “B” or better in our report card. Nearly 80% of the population would live in jurisdictions with anti-SLAPP laws.” As I have previously described, Anti-SLAPP laws essentially operate to weed out frivolous litigation brought in violation of a defendant’s First Amendment rights to free speech and to petition for redress. Thus, defendants who exercise these rights are not subjected to prolonged litigation only for an abusive litigant’s frivolous case to be thrown out in the end anyway.
The only modification of any gravity in the New Jersey UPEPA is that instead of a “motion for expedited relief” a party bringing an Anti-SLAPP motion will do so by way of an “application to show cause” (known by lawyers as an “OSC”). This, of course, is simply a change of nomenclature and does not create any substantive change as compared to the UPEPA promulgated by the Uniform Law Commission.
This is a good place to raise the quality of the various Anti-SLAPP Acts, which I would divide into four categories.
Category I — The best Anti-SLAPP laws are those based on the UPEPA. The reason for this is uniformity, which means that the courts of a state or territory that adopts the UPEPA may rely upon the court opinions from other UPEPA jurisdictions to resolve particular issues such that a more robust body of law is created. This is no small benefit as we shall next see.
Category II — The next-best Anti-SLAPP laws are those which are advanced, but are not uniform because they did not adopt the UPEPA. States in this category would include California, Nevada, New York and Texas. The problem with these statutes is that, not having any guidance from the rulings in other states, the courts in these states have sometimes interpreted these laws in ways that have sometimes run off into the weeds, and with nobody to correct them. Court opinions from the California Supreme Court have adopted positions that are at odds with the clear text of the California statute largely because the California statute has become largely out-of-date. The Nevada Supreme Court has likewise issued opinions that have raised eyebrows. The problems with the Texas Citizens Participation Act are legion and have resulted in ill-advised amendment attempts. We’ll have to see whether New York’s new Anti-SLAPP law runs into similar problems. Probably a majority of the Anti-SLAPP laws in the United States fall into this category.
Category III — These are jurisdictions that have adopted Anti-SLAPP laws, but those laws were so poorly drafted that their utility is significantly diminished to the point of nearly being practically useless. Arizona’s law is a good example of this. The Anti-SLAPP laws in these states are only marginally better than those in the next category.
Category IV — These are jurisdictions that do not have any Anti-SLAPP laws.
One of the major reasons for the UPEPA project was to provide the most modern Anti-SLAPP law primarily for adoption by those jurisdictions in Categories III and IV, but also for those jurisdictions in Category II which desire the great benefits of uniformity of decision. Whether these states in Category II will discard their existing quality acts for the UPEPA remains to be seen. Meanwhile, adoption of the UPEPA continues at a satisfying pace, which is good for the protection of some of our most important rights.
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