The Utah anti-SLAPP law is relatively narrow. It only protects defendants who believe they have been sued primarily for their participation in the “process of government” and as a means of harassment. Utah Code Ann. § 78B-6-1403(1) (2019). “Process of government” is defined as “the mechanisms and procedures by which the legislative and executive branches of government make decisions, and the activities leading up to the decisions, including the exercise by a citizen of the right to influence those decisions under the First Amendment to the U.S. Constitution.” § 78B-6-1402(4).
The state’s highest court has interpreted this definition narrowly, reversing a trial court’s order that the anti-SLAPP law barred a defamation claim against a newspaper and its publisher for a political editorial published during an election campaign. Jacob v. Bezzant, 212 P.3d 535, 541 (Utah 2009). The Utah Supreme Court emphasized that the state legislature specifically fashioned the anti-SLAPP law “to link its applicability to the context in which the action in question took place: participating in the process of government by exercising the right to influence legislative and executive decisions.” Id. According to the court, although the editorial was “part of a public debate on the eligibility of candidates for office,” it “was not an exercise of [the publisher’s] right to influence legislative or executive decision making.” Id. at 542. The court identified the following factors in its analysis: “whether the speech contained [an] express or implied intent to influence the decision-maker, whether a decision-maker was aware of the speech, whether the decision-maker was in the process of making a decision when the speech was made, or whether the decision-maker considered the speech when making the decision.” Id. at 542.
An individual who is improperly sued for participating in the process of government may file an anti-SLAPP motion asking the court to enter judgment in his or her favor, which the court must hear and decide “as expeditiously as possible.” Utah Code Ann. § 78B-6-1404(1)(b).
Discovery activities are automatically placed on hold from the time the motion is filed until the court has ruled on it, unless the court orders otherwise. § 78B-6-1404(1)(a).
In ruling on the defendant’s anti-SLAPP motion, a Utah court will consider the defendant’s sworn statement “detailing his belief that the action is designed to prevent, interfere with, or chill public participation in the process of government, and specifying in detail” the conduct giving rise to the complaint. § 78B-6-1403. If the judge finds that the defendant established by clear and convincing evidence “that the primary reason for the filing of the complaint was to interfere with the first amendment right of the defendant,” the court must grant the motion. § 78B-6-1404(1)(b), (2).
Utah’s anti-SLAPP law includes a provision allowing the state attorney general or any government body to which the SLAPP defendant’s acts were directed to intervene to defend or otherwise support the defendant. § 78B-6-1404(3).
If the court denies the motion or fails to rule on it in an “expedited fashion,” the defendant is entitled to appeal that decision immediately. § 78B-6-1404(1)(c). The statute does not define “expedited.” § 78B-6-1404(1)(c).
Utah’s anti-SLAPP law does not allow for recovery of attorney’s fees and costs as part of the motion to dismiss. However, a defendant who can show that the claim lacked a substantial basis in fact and law and could not be supported by a substantial argument for a modification of existing law may file a “SLAPPback” lawsuit against the plaintiff to recover attorney’s fees and costs. § 78B-6-1405(1)(a). Additional compensatory damages are also available if the defendant can show that the claim was brought “for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free exercise of rights granted under the First Amendment to the U.S. Constitution.” § 78B-6-1405(1)(b).