The Utah anti-SLAPP law 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 (2011). 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.

The state’s highest court has interpreted this definition narrowly. In reversing a trial court’s order that the anti-SLAPP statute barred a defamation claim against a small-town newspaper and its publisher for a political editorial published during an election campaign and disagreeing with the plaintiff’s position in an earlier political advertisement, the Utah Supreme Court emphasized that the state Legislature specifically fashioned the anti-SLAPP statute “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.” Jacob v. Bezzant, 212 P.3d 535 (Utah 2009). An election does not involve such participation, but rather “reflects citizen decision making in the process of government as distinguished from executive and legislative decision making,” the court said.

Useful factors to consider in determining whether speech was an exercise of the right to influence legislative or executive decision making are “whether the speech contained 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.” In applying these criteria, the court observed that the newspaper’s election editorial did not “expressly request that the executive or legislative branch of [the city] government take any action. Nor c[ould] it be read to impliedly request that government decision-makers act.”

Moreover, the record indicated that the decision makers were not considering whether to change the long-standing policy addressed in the editorial, the topic was not even up for discussion or decision during the relevant time period, and the city mayor testified that he was unaware of the editorial when he assumed the position. Accordingly, the court held that because the editorial merely “provided information useful to voters in choosing whom to vote for,” the anti-SLAPP statute did not apply.

An individual who is improperly sued for participating in the process of government may file a motion asking the court to enter judgment in his favor, which the court must hear and decide “as expeditiously as possible.” Utah Code Ann. 78B-6-1404. The defendant is entitled to seek immediate review in the appellate court if the trial court fails to rule on the motion in an expedited fashion, although the statute does not define “expedited.” Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it unless the court orders otherwise.

In ruling on the defendant’s 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 asserted to be the participation in the process of government believed to give 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,” he will grant the motion. 78B-6-1404. Utah’s anti-SLAPP statute includes a provision allowing the state attorney general or any governmental body to which the SLAPP defendant’s acts were directed to intervene to defend or otherwise support the defendant.

If the court denies the motion, the defendant is entitled to appeal that decision immediately. The Utah anti-SLAPP law does not allow for recovery of costs and attorney fees 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 suit against the plaintiff to recover costs and attorney fees. 78B-6-1405. Damages are 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.”