Sometimes people sue other people, not with a realistic expectation of winning the case, but just to shut them up about something or other ⸺ or to retaliate against them for something ⸺ by forcing them to spend a lot of money defending the lawsuit. These are known as “SLAPP suits”, short for Strategic Lawsuit Against Public Participation, and are a form of what is known as a “strike suit”.
A personal example: In 1993, my clients and I were sued for $4.7 billion (yes, that’s a billion with a “b”) for alleged defamation stemming from litigation in Houston, Texas. The purpose of the lawsuit was to try to force us into a cheap settlement. The Houston Chronicle and its owner Hearst Publishing were also sued. The plaintiffs’ goal was to try to silence them over their coverage of the high-profile litigation. In the end, this lawsuit came to nothing and the entire dispute was finally settled. But it was painful and costly to defend against it.
That’s what SLAPPs are all about: the powerful and the unjust use the sheer cost of a trial to intimidate the weak and the just. Frivolous lawsuits like the $4.7 billion one were out of control at the time. In states such as California and Texas, it has become almost formal to file such abusive litigation in an attempt to financially exhaust the weaker side before the merits of the case are heard. This created a wave of abusive lawsuits and resulted in the passage of anti-SLAPP acts in various states. Now, more than a majority of states have such laws in one form or another.
The purpose of an anti-gag law is to eliminate certain types of abusive litigation early in the litigation, so that the weaker party does not have to spend a lot of money defending against it. Such deeds usually contain provisions that cause the abusive plaintiff to bear the legal costs of the defendant so that the latter does not come out of pocket to defend against such unwanted lawsuits and is compensated.
An important point to realize here is that the anti-SLAPP lawsuits are essentially a type of judicial reform that is forced upon the courts by state legislatures, in recognition that the courts themselves have failed to address the problem. . This is a problem with the courts in general: no matter how bad things get, the courts never seem to recognize a systemic problem within the justice system, let alone do anything about it. Any meaningful change to the justice system has always been external ⸺ the legislator must step in and fix what the courts themselves will not fix or even recognize as needing to be fixed. This is exactly what happened with the anti-SLAPP laws.
If you want a great, popular description of what anti-gag laws do, please take a moment to watch this video explanation by John Oliver, musical included.
About a quarter of a century ago, New York passed anti-SLAPP laws that tackled the major issues of the time, namely lawsuits brought by New York real estate developers in an attempt to silence environmentalists who opposed their plans. New York’s current law is quite restrictive compared to more modern anti-gag laws in other states that protect a wide range of free speech and public participation activities.
The New York Times
While the New York Times-backed legislation would certainly be a significant improvement over New York’s existing anti-SLAPP laws, there is an even better solution that has just become available: the Uniform Public Express Protection Act (UPEPA). , which was passed by the Uniform Law Commission on July 15, 2020 ⸺ just two days before the New York Times article.
UPEPA offers two distinct advantages over the proposed legislation in New York.
First, the UPEPA represents the state of the art and the cutting edge of anti-gag legislation because it was designed based on the experiences of all states that have passed such laws, retaining the best ideas and eliminating the worst. I intend to write more about UPEPA at a later date, but suffice it to say that it represents very good law in this area.
Second, as a uniform law, UPEPA benefits the courts of all states that pass this law, so as to reduce much more quickly the areas of law in which the courts are silent, i.e. they have not yet been called upon to interpret certain provisions in particular circumstances. Uniformity also deters forum shopping for anti-SLAPP laws, where a plaintiff seeks the state with the least protective laws to bring their abusive litigation.
Uniformity of laws has proven to be a very good thing, just take the example of the Uniform Commercial Code. Uniformity of laws allows litigants and courts to largely ignore discrepancies in state law in the handling of lawsuits, resulting in much greater judicial efficiency. There is a good reason why Uniform Acts are extremely popular in United States jurisprudence and why Uniform Acts are found at critical intersections in our laws.
New York has the opportunity here to pave the way for uniform anti-gag law by adopting UPEPA, and thereby encouraging other states ⸺ including those without any anti-gag law ⸺ to adopt in the same way uniform laws in this field . The opinions of New York courts on its anti-gag laws could also benefit courts in other states. This will be especially true for smaller states where defamation and related issues arise less frequently. New York courts could also benefit from opinions from states such as California, which also have a vibrant media sector.
Enacting UPEPA is an opportunity New York should not miss.
Uniform Public Expression Protection Act (2020), found at