Summary

Yesterday, July 17, 2024, Pennsylvania joined more than 30 states that have enacted anti-SLAPP laws, providing protection to journalists and media outlets from meritless claims.

The Upshot

• Pennsylvania’s new anti-SLAPP law, Act 72, provides immunity from civil liability for claims based on “protected public expression,” including claims based on press publications and broadcasts.
• The law’s substantive section, which goes into effect immediately, entitles a party subjected to a baseless claim to its attorney’s fees and costs.
• Any determination of whether the immunity applies is subject to immediate appeal.

The Bottom Line

Media outlets and journalists facing meritless lawsuits in Pennsylvania state and federal courts now have much greater protections. Ballard Spahr’s Media and Entertainment Law Group was instrumental in the law’s drafting.

Pennsylvania joins over 30 states that have enacted anti-SLAPP laws. These laws provide immunity to journalists and media outlets from civil liability for lawsuits based on their protected speech. Such lawsuits are known as Strategic Lawsuits Against Public Participation (SLAPPs).

Pennsylvania’s anti-SLAPP statute, Act 72, passed both the state House and Senate as HB 1466 unanimously, and Governor Josh Shapiro signed it into law yesterday. Ballard Spahr Media and Entertainment Law Partner Michael Berry was instrumental in the law’s drafting and worked alongside stakeholders throughout Pennsylvania to craft its language and work toward its passage.

Act 72 builds on the Uniform Law Commission’s Uniform Public Expression Protection Act (UPEPA) and the collective experience of states with existing anti-SLAPP laws, while accounting for distinctive features of Pennsylvania legal practice. It is split into two sections – one substantive and one procedural.

The substantive section, which goes into effect immediately, provides immunity from civil liability for any claim based on “protected public expression.” Act 72 defines “protected public expression” to include, among other things, news reports and commentary about issues under consideration in a government proceeding and on matters of public concern. The new law’s immunity does not extend to various kinds of claims, including claims to enforce nondisparagement or noncompete agreements, misappropriation of trade secrets, and a variety of corporate disputes.

The immunity is granted if the party asserting a claim based on protected public expression (1) fails to “establish a prima facie case as to each essential element” of its claim, (2) fails to “state a cause of action upon which relief can be granted,” or (3) “there is no genuine issue as to any material fact, and the person against whom the cause of action . . . has been asserted is entitled to judgment as a matter of law.” If a party is immune from suit under this provision, it is entitled to its attorney’s fees and costs. If a party asserts the immunity frivolously or solely for the purpose of delaying the proceeding, however, the opposing party is entitled to recover its attorney’s fees and costs. Any determination of whether the immunity applies is subject to immediate appeal.

In addition, the law includes a “SLAPP-back” provision that would apply in limited circumstances. Specifically, if a party prevails against a SLAPP suit, but the court does not rule on its immunity, the party can file a new lawsuit seeking to recover its attorney’s fees and costs.

The remainder of Act 72 is procedural. To comply with the Pennsylvania Constitution’s requirement that only the Supreme Court can implement court procedures, the procedural components of the law will only go into effect if and when the Supreme Court takes certain actions, such as promulgating a rule of civil procedure consistent with the statute or communicating to the General Assembly that the procedural provisions do not violate the Pennsylvania Constitution.

The procedural provisions of the law would create a new special motion to dismiss a claim in state court based on protected public expression. That motion is subject to several unique procedures, including a stay of all proceedings in the case (with limited exceptions) and the potential for limited discovery when “necessary to establish whether a party has satisfied or failed to satisfy” its burden to show whether the claim at issue is subject to the immunity provided under the law.

Significantly, the law’s fee-shifting provision and its new “SLAPP back” cause of action should apply in federal court. Unlike the various states’ anti-SLAPP laws that have been held not to apply in federal court, Act 72’s fee-shifting does not turn on any special procedure. It instead contemplates that the immunity can be raised in any pleading or motion allowed under the applicable rules of civil procedure. Thus, the fee-shifting provision and new cause of action should be deemed substantive laws that apply in federal court, furthering the impact of this new law and ensuring that Pennsylvania media are protected whether they are subjected to SLAPP suits in state or federal court.

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