On June 17, 2022, Hawaii enacted the Hawaii Public Expression Protection Act (“HPEPA”), a version of the Uniform Public Expression Protection Act (“UPEPA”). The Uniform Law Commission drafted UPEPA as a model law designed to prevent abusive litigation, known as strategic lawsuits against public participation or “SLAPPs,” aimed at silencing free speech through meritless defamation, privacy, or other nuisance claims. Hawaii became the third state to adopt UPEPA, following Kentucky and Washington; several other state legislatures are considering whether to do the same.
Hawaii’s new law, which took effect immediately, applies broadly to suits based on a person’s exercise of speech, press, assembly, petition, or association rights “on a matter of public concern.” HPEPA, S.B. 3329, sec. 2, § 2(a)(3). HPEPA also applies to lawsuits based on a person’s communications in a legislative, executive, judicial, administrative, or other government proceeding and to communications on an issue under consideration by any of those bodies. Id. § 2(a)(1)–(2). Previously, Hawaii’s anti-SLAPP law covered only statements made to a government body during a government proceeding. Haw. Rev. Stat. Ann. § 634F-1 (2021). In adopting HPEPA, the legislature found that the old “anti-SLAPP law ha[d] not been effective at protecting citizen participation” and expressed a desire to better “ensure citizens are protected from punitive SLAPP suits.” HPEPA, S.B. 3329, sec. 1.
Like the model statute, HPEPA exempts suits against government employees and entities acting in their official capacities, suits brought by the government to enforce public health or safety measures, and suits against people primarily engaged in the business of selling or leasing goods or services if the communications at issue are related to that business. Id. at sec. 2, § 2(b).
Defendants have 60 days after a claim is brought to file a special motion to dismiss the suit. Id. § 3. Once the motion is filed, all proceedings between the parties—including discovery—are stayed, though the court may allow limited discovery if the parties require it to substantiate or resist the motion. Id. § 3(b)(1), (e). The court must then hold a hearing on the motion within 60 days of the filing, unless the court orders a later hearing to allow for discovery or for “other good cause.” Id. § 4(a). The court must then rule within 60 days of hearing the motion. Id. § 7.
To have the SLAPP dismissed, the defendant must first establish that their speech is covered by the Act’s scope, and the plaintiff must fail to establish otherwise. Id. § 6(a)(1)–(2). Once that threshold is established, the court will dismiss the case if either 1) the plaintiff fails to establish a prima facie case as to each essential element of their claims or 2) if the defendant shows that the plaintiff has failed to state a claim upon which relief can be granted (the same standard used in a traditional motion to dismiss) or that there is no genuine issue of material fact and that the defendant is therefore entitled to judgment as a matter of law (the same standard used in a traditional motion for summary judgment to resolve claims before trial). Id. § 6(a)(3). If the court denies the anti-SLAPP motion, the defendant may appeal as of right within 30 days. Id. § 8.
If the court grants the special motion to dismiss, it must award the defendant their court costs, attorney’s fees, and litigation expenses related to the motion. Id. § 9(a)(1). However, if the court denies the motion and finds it was frivolous or brought solely to delay the proceeding, the plaintiff is entitled to recover these fees from the defendant. Id. § 9(a)(2).
The statute provides that it should be interpreted liberally to effectuate its remedial purpose of protecting the exercise of constitutional rights. Id. § 10.
HPEPA does not apply to proceedings that began before its June 17, 2022 effective date. Id. at sec. 4.