Anti-SLAPP Law Modernized: The Uniform Public Expression Protection Act (eBook)

Jay Adkisson (Autor)

Carl Berthold (Herausgeber)

eBook Download: EPUB

2022 | 1. Auflage
188 Seiten
Bookbaby (Verlag)
978-1-6678-3467-2 (ISBN)

Infos

Detailed discussion of the Uniform Public Expression Protection Act which seeks to make uniform the various Anti-SLAPP Laws throughout the United States.

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A phrase-by-phrase examination of the Uniform Public Expression Protection Act, including insights as to why the drafting committee of the Uniform Law Commission chose particular drafting language for what is hoped will become a uniform Anti-SLAPP law throughout the United States.

Textauszug

I. INTRODUCTION

Here we consider the Uniform Public Expression Protection Act (UPEPA, pronounced "You-Pep-Uh"), adopted by the Uniform Law Commission (ULC) in 2020, which was drafted for the purpose of providing a consistent body of Anti-SLAPP law among the states. Although I was an American Bar Association (ABA) adviser to the drafting committee, the commentary in this and the following articles represents my viewpoint and mine alone — not those of the ABA, the ULC, or anybody else. Other folks who were involved in this project, many of them admittedly smarter than I, more experienced with this subject matter, or frequently both, might and probably will disagree with my commentary on some points — and perhaps on a few points quite vigorously. Again, this is my own unofficial commentary, based on my own sometimes faulty memory and notoriously poor note-taking, and should be so digested.

First we must understand the problem that UPEPA is meant to solve, which are lawsuits brought by a party that doesn't care so much about winning as about punishing the other party with legal fees, legal expenses, and emotional harassment so long as the litigation may be made to last. These sorts of abusive lawsuits were traditionally known as strike suits but in more modern times they have become known as SLAPP suits, with the acronym meaning Strategic Lawsuit Against Public Participation.

A very common scenario is where a journalist writes an article which, although perfectly true, displeases somebody very wealthy. To try to force a retraction of the article, the wealthy person brings a defamation lawsuit against the journalist with the threat of bankrupting the journalist with legal fees. Another common scenario is where former best friends and lovers are now embroiled in a bitter divorce, and one of the ex-spouses files a defamation lawsuit against the other to try to force a better settlement. These are just a couple of examples out of a wide range of scenarios where bad people bring abusive litigation to try to extort an innocent party lacking the economic power to fight back.

Why has such abusive litigation so infested our legal system? The first answer is that the courts have generally done a terrible job in either identifying at any early stage or ultimately redressing such litigation — and almost never preventing the harm in the first place. The second answer is that procedural rules themselves are amenable to being abused, so long as the abusive party is able to draft a pleading that can withstand an ordinary motion to dismiss (or demurrer in some states). Meeting this pleading standard is not at all difficult since the courts are required, by other arcane procedural rules, to presume that what the abusive party has pled is actually true, even if it has not the slightest connection with Planet Reality. In other words, abusive litigation can survive and thrive because of a legal loophole which rewards crafty — though dishonest — drafters who use the court's own rules in their favor and then sit back smiling because the court's cannot effectively deal with their junk before it has wrought its intended harm.

The answer to this came not from the courts, which for centuries have shown a remarkable ability to utterly ignore their own most obvious and serious failings, but through the state legislatures which passed Anti-SLAPP statutes. The effect was to force on the courts by way of legislative fiat the necessary remedy to this sort of abusive litigation. This point, that Anti-SLAPP statutes represent an instance of forced judicial reform cannot be emphasized enough. Early iterations of Anti-SLAPP laws were sometimes initially met by the courts with some variant of "the legislature really doesn't mean that", and the legislatures then had to re-draft their statutes to include so-called purposes clauses to essentially tell the courts that they really did. The legacy of this struggle is found in the UPEPA when we get to § 11's mandate to expansive interpret parts of the Act to protect parties from abusive litigation.

A quick bit is necessary about the process by which UPEPA was adopted. The UPEPA drafting committee consisted of a diverse collection of folks who volunteered a great deal of their time and effort, and in some cases no insubstantial travel and lodging expenses. Their experience with Anti-SLAPP laws ranged from a few who had almost no experience with this body of law specifically but were simply very good lawyers, to a few who were undoubtedly among the contemporary experts in the field. The rest (including Yours Truly) were somewhere in the middle.

The most important thing to know on this point is that the committee members individually and as a whole proceeded with the singular motivation to simply create the best uniform legislation that could be created — there were no hidden agendas or self-motivations pulling the UPEPA one way or the other on any issue. Although the committee contained at least a few hardcore Republican conservatives and probably an equal number of hardcore Democratic liberals, with (again) most of us being somewhere in the middle, there was never anything like an ideological struggle or the pulling of UPEPA one way or the other. Persons who may claim later that the UPEPA evinces some sort of ideological bent by the drafting committee members in any direction, other than their collective belief that Anti-SLAPP laws generally are a good thing, would be utterly wrong.

To the extent that there was any external pressure, it came in the form of concerns about the so-called enactability. It is not enough that the final drafting product be good, or even perfect if such a thing is even possible, but that it also be amenable to passage by the state legislatures when the time came. These concerns were identified by considering the history of enactment and later amendment of the existing Anti-SLAPP acts nationwide. In particular, the Texas experience was most telling, because while the UPEPA drafting committee was engaged in its work, the Lone Star State was itself going through a big brouhaha to amend its relatively new Act (and which amendments were adopted by the Texas legislature before UPEPA reached its final form).

Within these concerns of enactability, those of the trial lawyers nationwide were probably given the greatest weight, but not because of any particular substantive issue. Instead, it was recognized that the trial lawyers in many states have a very powerful and energetic lobbying presence which could impede the enactment of UPEPA should they so choose. The trial lawyers' concerns fell into three buckets. First, that any legislation not seek to limit the right to jury trials found in the federal and states constitutions. Second, that the legislation not alter the so-called American Rule by which in most cases each party bears its own attorney's fees. Third, that certain types of cases be excluded from the ambit of Anti-SLAPP laws. As drafted, the UPEPA met these first two concerns without much trouble, but as to the third it was determined to exclude from UPEPA's scope only a minimum of types of cases, and leave the consideration of further exclusions to the enacting legislatures since such exclusions tend to be only local in importance anyway.

Here it should be noted that Anti-SLAPP laws, including UPEPA, are far more beneficial to the clients of trial lawyers than any potential harms in the three areas identified. Typically, their clients are the stereotypical "little guy" who is the subject of exactly the sort of abusive litigation that Anti-SLAPP laws and UPEPA are meant to address, i.e., trial lawyers and their clients are considerably more likely to bring Anti-SLAPP motion than to initiate abusive litigation. But for the very practical reason relating to enactability, the concerns of the trial lawyers were given special attention by the drafting committee.

Another significant force that influenced the drafting of UPEPA, albeit in an internal and wholly non-substantive way, was the style committee of the Uniform Laws Commission. The style committee's task is to review drafts and make suggestions — often rising to the level of demands —that all uniform statutes be drafted a certain way. Suffice it to say that the desires of the drafting committee and the requirements of the style committee were often at loggerheads, to be kind.

The style committee certainly did make a few excellent suggestions which substantively advanced the UPEPA and for which the drafting committee was grateful. Nonetheless, adherence to their rules results in readers of the statute being forced to jump back and forth in a dizzying fashion through various sections to divine the meaning of particular phrases. Indeed, the beginning of the operative analysis isn't found until the middle (the operative section of the UPEPA is not found until § 3 and the decisive section is in § 7), against all organizational logic. The style committee's rules often have an effect akin to a snake eating itself and should be considered in any future criticism of the UPEPA committee for the organization of the Act. This criticism might even be considered by the style committee itself as to whether some of its drafting rules might in the aggregate often be counterproductive.

Another overarching consideration that played into the organization of UPEPA is that the UPEPA is...

Produkt-Details

• Erscheint lt. Verlag: 4.3.2022
• Sprache: englisch
• Themenwelt: Recht / Steuern ► Strafrecht
• ISBN-10: 1-6678-3467-3 / 1667834673
• ISBN-13: 978-1-6678-3467-2 / 9781667834672