INTRODUCTION
On July 18, 2024, Pennsylvania Governor, Josh Shapiro, signed House Bill 1499, which enacted a statute that profoundly impacts B&L’s defamation practice. The Bill is an Anti-SLAPP statute. “SLAPP” stands for Strategic Lawsuits Against Public Participation. Generally, such laws are designed to give another layer of protection for defendants in defamation cases by creating a procedure that allows a defendant to file an early motion to dismiss the case on the grounds that the defamation claim is frivolous. The stated purpose of Pennsylvania’s new Anti-SLAPP statute is to provide more comprehensive protections for free speech, in the context of public expression, by discouraging individuals from pursuing frivolous lawsuits arising from “protected public expression.” H.B. 1466. Given the fact that the statute relates to “protected public expression,” Pennsylvania’s new anti-SLAPP statute directly impacts defamation lawsuits. Defamation plaintiffs and defendants must understand the implications the new statute will have on such cases.
ANTI-SLAPP PROVISIONS
An anti-SLAPP motion asks the sitting court to dismiss the claims being made by the plaintiff as meritless, and often requires compensating the defendant who is sued for the frivolous claims. Usually, compensation will be provided based on what the defendant expended in litigation, including attorney fees, court fees, and any other expenses associated with litigation.
Before House Bill 1466, Pennsylvania had a narrow anti-SLAPP statute applying only to speech in the context of environmental law or regulation. 27 Pa. C.S.A §§ 7707 and 8301 through § 8305. There are 37 states that have some version of an Anti-SLAP statute, but only 17 of those states have the type of protectionist statute that Pennsylvania just passed. Indeed, Pennsylvania’s new statute expands the usage of anti-SLAPP motions to all defamation claims based on speech that is a “matter of public concern.”
House Bill 1466 extends anti-SLAPP motions to “protected public expression” defined as:
“A person’s:
- communication in a legislative, executive, judicial or administrative proceeding;
- communication on an issue under consideration or review in a legislative, executive, judicial or administrative proceeding; or
- exercise, on a matter of public concern, of the rights of freedom of speech or of the press, the right to assemble or petition or the right of association, guaranteed by:
- the First Amendment to the Constitution of the United States; or
- Section 7 or 20 of Article I of the Constitution of Pennsylvania.
H.B. 1466.
An anti-SLAPP motion under the new bill may be granted by a sitting court if the party asserting a claim arising from an instance of public expression “(1) fails to ‘establish a prima facie case as to each essential element’ of its claim, (2) fails to ‘state a cause of action upon which relief can be granted,’ or (3) ‘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.’”
IMPLICATIONS ON DEFAMATION PLAINTIFFS
As long as a claim involves “protected public expression” as defined by the Bill, the new statute is applicable to defamation lawsuits. As a result, the risk that a claim may not survive an early motion to dismiss – and therefore, the defamation plaintiff would be tagged with having to pay a defendant’s attorney fees – must be considered before a plaintiff decides to pursue a defamation lawsuit. If a plaintiff believes that they have been defamed in the context of “protected public expression” the plaintiff not only has to consider the validity of their claim to ensure time and money are not wasted on an early dismal, but they now may run the risk of being further punished by being required to compensate the opposing party for their attorney’s fees and costs. The new statute does allow a plaintiff to obtain discovery, but there is not an automatic right to discovery. Plaintiffs need to ask the court for permission to take discovery.
Plaintiffs who are seeking to file claims of defamation involving “protected public expression” must ensure that they have all the facts necessary to show that their claims are valid and can be properly sought under Pennsylvania defamation law. Seeking out proper legal guidance regarding the validity of a defamation claim is now, more than ever, essential to avoiding not only having a case dismissed, but also paying the price for the dismissal.
