Something remarkable happened in Harrisburg last week. The Pennsylvania Senate unanimously passed a thoughtfully drafted bill that, when signed by Governor Josh Shapiro, will finally provide much-needed protections for free speech.
House Bill 1446 (the Uniform Public Expression Protection Act), which first passed unanimously in the House in October, offers vigorous defenses for those confronted by a frivolous lawsuit seeking to silence free expression.
“It’s unconscionable that these petty lawsuits have been successful in muzzling opposition in the past. Pennsylvanians should be able to speak freely without worrying about being silenced or getting saddled with legal costs,” said Democratic State Rep. Bizzarro, the bill’s sponsor. “I’m grateful my colleagues in the General Assembly agree that it’s time to finally expand our SLAPP laws to protect our constitutional right to free speech.”
Strategic Lawsuits Against Public Participation (SLAPPs) have been the scourge of ordinary citizens who dared to take a public stance. These citizens soon discovered that “free speech” did not truly exist in Pennsylvania. If your speech or publication offended someone with more money and power, you could be sued into bankruptcy, regardless of whether your expression was protected by the First Amendment to the United States Constitution or Article I of the Pennsylvania Constitution.
For over a decade, advocates have been pleading with their Representatives in Harrisburg to bring Pennsylvania’s laws in line with the majority of states who acted to curb the abuses of the legal system attributable to SLAPP lawsuits. Lawmakers in the current session finally delivered with legislation that truly empowers victims of SLAPP lawsuits to turn the tables on those who seek to abuse the legal process.
H.B. 1446 provides SLAPP victims with the three essential protections that lawyers experienced in the field of First Amendment law require to vigorously represent their clients.
First, the bill provides a mechanism for a SLAPP victim to file a special motion to dismiss at the commencement of the lawsuit. The filing of the special motion stays all activity in the case pending the court’s decision. This is critical because it permits the court to evaluate the merits of the claim without first embroiling the victim in costly discovery practice. Although the Court may permit limited discovery on the issues raised through the motion, the bill requires the court to resolve the motion promptly, including by mandating the court to hear argument within 60 days.
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Second, H.B. 1446 allows for an immediate interlocutory appeal of the court’s decision on the special motion. Typically, these types of preliminary rulings are not immediately appealable, and a party would have to go through lengthy discovery and a trial resulting in a final judgment before having the right to appeal. In providing for an immediate appeal, the legislature gives primacy to protecting the SLAPP victims, including by allowing an appellate court to review the trial judge’s order. This also negates the “home field advantage” often deployed by SLAPP filers to evade dismissal of their frivolous claims by subjecting the trial court’s order to immediate review by the judges on the Superior Court.
Third, H.B. 1446 mandates the payment of attorney fees, costs, and expenses of litigation incurred in defending against SLAPP suits. Unlike other fee-shifting clauses, H.B. 1446 uses the term “shall” to compel trial courts to award attorney fees, costs, and expenses, when a determination is made that the lawsuit was without merit. In addition, the bill mandates the payment of additional fees, costs, and expenses to account for frivolous opposition to the special motion to dismiss. Finally, the bill mandates the payment of fees, costs, and expenses even when the lawsuit is voluntarily withdrawn after the filing of a special motion.
These fee-shifting provisions accomplish at least two goals requested by advocates. First, they encourage attorneys to represent SLAPP victims by finally shifting the burden of the costs of filing the frivolous suits from the victims to the perpetrators. Second, the fee-shifting provisions discourage attorneys from initiating baseless lawsuits, by exposing their clients to significant fee awards.
In addition to these three core protections for speech, H.B. 1446 offers powerful declarations. It instructs courts interpreting its provisions to do so broadly, with the goals of eradicating SLAPP suits, increasing public participation and public expression, and awarding fees to parties who find themselves victimized by one of these lawsuits. The bill defines “protected public expression” broadly to include: “a person’s exercise, on a matter of public concern, of the rights of freedom of speech or of the press, the right to assemble or petition or the right of association, guaranteed by the [First Amendment and the Pennsylvania Constitution].”
Demonstrating the thoughtfulness with which this bill was drafted, H.B. 1446 incorporates specific exclusions, exempting certain lawsuits from these anti-SLAPP provisions. For example, the bill does not impact lawsuits brought by or against government officials working in their official capacity, or lawsuits brought against merchants relating to the sale or lease of goods or services. The bill also does not impact victims of domestic violence seeking protection from abuse orders or others seeking protection from sexual violence.
The bill will apply to civil lawsuits that are commenced after the law goes into effect. Perhaps the only flaw in the legislation is that it does not offer any relief to those who are currently embroiled in SLAPP suits. Nevertheless, the bill is a historic achievement that will affirmatively guarantee the freedom of speech promised to citizens in the U.S. Constitution.
H.B. 1446 was introduced in the General Assembly in March 2023 and championed by Democratic Representatives Ryan A. Bizzarro , Rep. Melissa Cerrato, Rep. Liz Hanbidge, Rep. Joseph C. Hohenstein, Rep. Tarik Khan, Rep. Pat Gallagher, Rep. Lisa A. Borowski, and Rep. Tim Brennan. In addition to the eight Democrats who introduced the legislation, the bill was co-sponsored by Reps. Maureen Madden, Danilo Burgos, MariLouise Isaacson, Lee R. James, Tina M. Davis, David M. Delloso, Stephen Kinsey, Dan Williams, Carol Hill-Evans, Michael Schlossberg, Jared Solomon, Paul Takac, Melissa Shusterman, Nick Pisciottano, Benjamin Sanchez, Darisha K. Parker, Danielle Friel-Otten, Emily Kinkead, Justin Fleming, Pat Innamorato, Roni G. Green, and Amen Brown. All but one are Democrats.
READ GAREN MEGUERIAN’S THREE-PART SERIES ON SLAPP LAWSUITS:
Part 1: Defamation Lawsuits Can Be Weaponized Tools Of Censorship
Part 2: Jim Worthington And Clarice Schillinger Target Their Critics With Defamation Lawsuits
Part 3: Pennsylvanians Are In Desperate Need Of Protection From SLAPPs
