On April 20, 2022, Kentucky enacted 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. Kentucky became the second state to adopt UPEPA, following Washington state; several other state legislatures are now considering whether to do the same.
The new law applies broadly to suits based on a person’s exercise of speech, press, assembly, petition, and association rights “on a matter of public concern.” UPEPA, H.B. 222, § 2(1)(c). The law defines “matter of public concern” broadly, to include any statement or activity regarding “a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity,” “[a] matter of political, social, or other interest to the community,” or “[a] subject of concern to the public.” Id. § 1(4). UPEPA 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(1)(a)–(b).
Kentucky’s law deviates from the model UPEPA statute by specifically stating that it applies to information-gathering activity related to artistic and journalistic work even if that information is never publicly communicated, and to consumer reviews of businesses. Id. § 2(2)(b). It also carves out additional exceptions to its broad scope, including for certain property-related claims, personal injury and wrongful death claims, insurance claims, common law fraud claims, whistleblower and certain employment-related claims, and Kentucky Consumer Protection Act claims. Id. § 2(2)(a). Like the model UPEPA, Kentucky’s statute exempts suits against government employees and entities acting in their official capacities and suits brought by government agents to enforce public health or safety measures. Id.
Under the anti-SLAPP law, Defendants have 60 days after a claim is brought to file a special motion for expedited relief 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. § 4(1), (4). 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. § 5(1). The court must then rule within 60 days of hearing the motion. Id. § 8.
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. § 7(1)(a)-(b). Once that threshold is established, the burden shifts to the plaintiff to establish a prima facie case as to each essential element of the claim. If plaintiff cannot do so, the court will dismiss the action. Even if the plaintiff satisfies this burden, a court will still dismiss the claim if the defendant establishes either 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. § 7(1)(c). As soon as the court decides the motion, either party may immediately appeal as of right. Id. § 9.
If the court grants the special motion to dismiss, it must award the defendant their court costs, reasonable attorneys’ fees, and litigation expenses related to the motion. Id. § 10(1). However, if the court denies the motion and finds it was brought without good cause, the plaintiff is entitled to recover these fees from the defendant. Id. § 10(2).
A version of this anti-SLAPP statute was first introduced in the Kentucky legislature in 2019. In March 2022, the Kentucky Supreme Court discussed UPEPA and other state anti-SLAPP laws in an opinion dismissing a developer’s lawsuit seeking over $12 million from homeowners who had sued to halt its construction of a nearby commercial center. Seiller Waterman, LLC v. Bardstown Cap. Corp., No. 2020-SC-0312-DG, 2022 WL 883677, at *8 (Ky. Mar. 24, 2022) (“House Bill 222 would create new KRS sections that establish procedures for dismissing legal actions filed in response to a party’s exercise of free speech, right to petition, or right to association.”).