My Testimony in Favor of Updating Utah’s Anti-SLAPP Law
This morning, I testified before the Utah legislature’s Judiciary Interim Committee about updating Utah’s anti-SLAPP law. My testimony is below. Several members of the committee expressed concern about California’s anti-SLAPP law scope because it made it too hard for plaintiffs, so they voted not to proceed. Bummer. As the new model anti-SLAPP law gets embraced throughout the nation, I expect Utah will eventually want to join that bandwagon.
Hello, my name is Eric Goldman, and I am a professor of law at Santa Clara University School of Law, located in California’s Silicon Valley. My research and teaching focuses on Internet law. For a decade, I have been a board member of the Public Participation Project, a group that has advocated for the creation of a federal anti-SLAPP law.
Anti-SLAPP laws generally have two main features. First, the laws provide a procedural fast lane for courts to dismiss abusive lawsuits that target free speech. Second, the laws typically make the plaintiff pay the defendant’s legal fees to ensure the defendant isn’t penalized by the lawsuit. Anti-SLAPP laws are popular throughout the nation. Over 30 states provide some type of anti-SLAPP protection.
I’m pleased to see that the Utah legislature is considering reviewing its anti-SLAPP law. Now is an excellent time for such a review. Earlier this year, the Uniform Law Commission (ULC) approved a model state anti-SLAPP law, called the Uniform Public Expression Protection Act. This law is ready-made for states to quickly adopt it verbatim, and I expect many states will do so. Alternatively, Utah could amend its existing statute to cover more abusive circumstances.
Utah’s current anti-SLAPP law, called the “Citizen Participation in Government Act,” was enacted 20 years ago. A lot has changed since then. Because the current law does not reflect the modern concerns about abusive litigation, the Public Participation Project gives the existing Utah law a “D” grade.
Utah’s existing anti-SLAPP law narrowly applies only to lawsuits that harass people participating in government processes. See Jacob v. Bezzant, 2009 UT 37. In contrast, the model state law applies much more broadly to any lawsuit that seeks to suppress the exercise of free speech rights on a matter of public concern. The reality is that we see plaintiffs regularly weaponize the court system, and the high costs of defending lawsuits, to silence speakers addressing socially important issues. The current Utah law doesn’t protect those speakers, but a modern anti-SLAPP law should. A well-designed anti-SLAPP law enhances the constitutional protections for free speech, which ensures that socially important speech can’t be easily suppressed through malicious and costly litigation.
Unfortunately, Utah’s current anti-SLAPP law isn’t robust enough to discourage such abuses. An example is Spencer v. Glover, a 2017 Utah Court of Appeals case that the existing anti-SLAPP law doesn’t cover. In that case, a legal client posted a critical Yelp review about his former lawyer, calling him the “Worst. Ever.” lawyer. Everyone knows this is a fully protected opinion. Nevertheless, the lawyer sued his former client for defamation.
(This is not an isolated example; an Iowa appellate court dealt with a virtually identical case over an online client review of an attorney in 2019, also without the benefit of an anti-SLAPP law. Puryear Law P.C. v. Fishback, 939 N.W.2d 659 (Iowa Ct. App. 2019)).
In Spencer v. Glover, both the trial court and appeals court dismissed the defamation claim on a motion to dismiss, so the client “won” decisively in court in the fastest possible way Utah law currently allows. Yet, this was a Pyrrhic victory. The client spent two years in court, and likely tens of thousands of dollars of legal fees, to vindicate his obviously legitimate opinions.
A modern anti-SLAPP law would have produced a much better outcome. The court would have used the procedural fast lane to end the bogus lawsuit quickly, and the lawyer would have made the former client whole financially.
While the Spencer v. Glover case is a cautionary tale, it’s still a rare case where the defendant fought back in court. The reality is that most review authors instantly acquiesce to any legal demands. They simply can’t afford the defense costs—even if a courtroom win is certain. This gives legal bullies the power to suppress speech they don’t like just by making legal threats.
This hurts all of us. As a society, we are less well-informed and make worse choices when litigation bullies avoid public scrutiny of their actions.
A modern anti-SLAPP law levels the playing field for speakers sharing socially beneficial content. Knowing that the law will protect their financial interests and end bogus cases early, the speakers are more likely to stand behind their words.
More than ever, we need to speak truth to power. A modern anti-SLAPP statute provides a necessary legal shield to aid those courageous speakers.
I’m grateful for the chance to share my perspectives with you, and I welcome additional opportunities to help you with this important endeavor.