By RCFP senior staff attorney Sarah Matthews and legal intern Maya Gandhi, Georgetown Law School, class of 2023
In May 2021, Washington enacted a version of the Uniform Public Expression Protection Act (“UPEPA”), which goes into effect July 25, 2021. 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. Although Washington was the first state to adopt the UPEPA, 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, 2021 Wash. Legis. Serv., ch. 259, § 2(2)(c). It 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. § 2(2)(a)-(b). The law carves out some exceptions to this broad scope, including for suits brought by government agents to enforce public safety measures. § 2(3).
To challenge a SLAPP suit under the Washington law, defendants have 60 days after a claim is brought to file a special motion for expedited relief to dismiss the suit. § 3(2). Also, unlike in the standard version of UPEPA, the Washington law requires the defendant to give notice to the plaintiff at least 14 days before filing — allowing the plaintiff to withdraw or amend the complaint — or the defendant loses the ability to recover attorneys’ fees. § 3(1).
Once notice is given or 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. § 4(1)(a), (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.” § 5(1). A court must rule within 60 days of hearing the motion. § 8.
To have the SLAPP action dismissed, defendants must first establish that their speech is covered by the Act’s scope, and plaintiffs must fail to establish otherwise. § 7(1)(a)-(b). The court will then dismiss the action if the plaintiff fails to establish a prima facie case for each essential element of the claim. 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). § 7(1)(c).
If the court grants the special motion for dismissal, the defendant will recover court costs and reasonable attorneys’ fees and litigation expenses. § 10(1). However, if the court denies the motion and finds it was either not substantially justified or intended to delay, the plaintiff will recover these fees. § 10(2). If the motion is denied, the defendant may immediately appeal within 21 days. § 9.
Washington previously adopted an anti-SLAPP law in 2010, but the state supreme court struck it down in 2015, finding that it violated the state constitutional right to a trial by jury, by authorizing judges to adjudicate factual questions in non-frivolous cases without a jury trial. Davis v. Cox, 351 P.3d 862, 864 (Wash. 2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston Cty., 423 P.3d 223 (Wash. 2018). The law required courts to evaluate whether plaintiffs had established “by clear and convincing evidence a probability of prevailing on the claim,” taking into consideration pleadings as well as “supporting and opposing affidavits stating the facts.” Wash. Rev. Code § 4.24.525(4)(b)–(c). The Washington Supreme Court held that this standard allowed trial judges to “evaluate disputed evidence” and improperly resolve cases before trial. Davis, 351 P.3d at 867–68.
UPEPA’s drafters avoided this problem by drafting the new law to track the existing standards for pre-trial dismissal of claims. Specifically, it allows defendants to bring motions for summary judgment much earlier in the proceedings rather than after a lengthy and expensive discovery period. Thus, the new law does not cause the dismissal of a claim that would have otherwise survived a motion for summary judgment, and it therefore avoids running afoul of the right to a jury trial.