An Act to Strengthen Freedom of Speech Protections by Extending Laws Against Strategic Lawsuits Against Public Participation
Maine Legislature, Session 131, LD 0870
Committee Amendment CA_A_S604 (Senate)
Amends: 14 MRSA §556

COMMITTEE AMENDMENT " fi " to S.P. 367, L.D. 870, "An Act to Strengthen
Freedom of Speech Protections by Extending Laws Against Strategic Lawsuits Against
Public Participation"
Amend the bill by striking out the title and substituting the followmg:
'An Act to Strengthen Freedom of Speech Protections by Enacting the Uniform Public
Expression Protection Act'
Amend the bill by striking out everything after the enacting clause and inserting the
following:
'PREFATORYNOTE
Special Thanks. The Committee wishes to thank Thomas R. Burke, Stanley W.
Lamport, Ben Sheffiier, and Ashley H. Verdon, all of whom served as Observers during
the drafting process, for their steady and valued input and expertise.
Introduction. In the late 1980s, commentators began observing that the civil litigation
system was increasingly being used in an illegitimate way: not to seek redress or relief for
harm, or to vindicate one's legal rights, but rather to silence or intimidate citizens by
subjecting them to costly and lengthy litigation. These kinds of abusive lawsuits are
particularly troublesome when defendants fmd themselves targeted for exercising their
constitutional rights to publish and speak freely, petition the government, and associate
with others. Commentators dubbed these kinds of civil actions "Strategic Lawsuits Against
Public Participation," or SLAPPs.
SLAPPs defy simple definition, They can be brought by and agamst individuals,
corporate entities, or government officials across all points of the political or social
spectrum. They can address a wide variety of issues—from zoning, to the environment, to
politics, to education. They are often cloaked as otherwise standard clauns of defamation,
civil conspiracy, tortious interference, nuisance, and invasion of privacy, just to name a
few. But for all the ways in which SLAPPs may clothe themselves, their unifying features
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make them a dangerous force: Their purpose is to ensnare their targets in costly litigation
that chills society from engaging in constihitionally protected activity.
Anti-SLAPP Laws in the United States. To limit the detrimental effects SLAPPs can
have, 32 states, as well as the District of Columbia and the Territory of Guam, have enacted
laws to both assist defendants in seeking dismissal and to deter vexatious litigants from
bringing such suits in the first place. An Anti-SLAPP law, at its core, is one by which a
legislature imposes external change upon judicial procedure, in implicit recognition that
the judiciary has not itself modified its own procedures to deal with this specific brand of
abusive litigation. Although procedural in operation, these laws protect substantive rights,
and therefore have substantive effects. So, it should not be surprising that each of the 34
legislative enactments have been performed statutorily—none are achieved through civil-
procedure rules. The states that have passed anti-SLAPP legislation, in one form or another,
are:
Arizona (2006) (Ariz. Rev. Stat. Ann. § 12-752) (2006)
Arkansas (2005) (Ark. Code Ann. § 16-63-501 through § 16-63-508)(2005)
California (1992) (Cal. Civ. Proc. Code § 425.16 through § 425.18)
Colorado (2019) (Col. Rev. Stat. Ann. § 13-20-1101)
Connecticut (201 8) (Conn. Gen. Stat. Ann. § 52-196a)
Delaware (1992) (Del. Code Ann. tit. 10, § 8136, through § 8138)
District of Columbia (2012) (D.C. Code § 16-5501 through § 16-5505)
Florida (2004,2000) (Fla. Stat. Ann. §§ 720.304, 768.295)
Georgia (1996) (Ga. Code. Ann. §9-11-11.1)
Guam (1998) (Guam Code Ann. tit. 7, § 17101 through § 17109)2
Hawaii (2002) (Haw. Rev. Stat. § 634F-1 through § 634F-4)
Illinois (2007) (735 111. Comp. Stat. 110/15 through 110/99)
Indiana (1998) (Ind. Code § 34-7-7-1 through § 34-7-7-10)
• Kansas (201 6) (Kan. Stat. Ann § 60-5320)
Louisiana (1999) (La. Code Civ. Proc. Ann. art. 971)
Maine (1995) (Me. Rev. Stat. Ann. tit. 14, § 556)
Maryland (2004) (Md. Code Ann., Cts. & Jud. Proc. § 5-807)
Massachusetts (1994) (Mass. Gen. Laws ch. 231, §59H)
Minnesota (1994) (Minn. Stat. § 554,01 through § 554.06) (Held unconstitutional by
Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 635-37 (Minn.
2017))
Missouri (2004) (Mo. Rev. Stat. § 537.528)
Nebraska (1994) (Neb. Rev. Stat, § 25-21,243 through § 25-21,246)
Nevada (1997) (Nev. Rev. Stat. § 41.635 through 41.670)
New Mexico (2001) (N.M. Stat. § 38-2-9.1 through § 38-2-9.2)
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New York (1992) (NY. Civ. Rights Law § 70-a and § 76-a)
Oklahoma (2014) (Okla. Stat. tit. 12, § 1430 through § 1440)
Oregon (2001) (Or. Rev. Stat. § 31.150 through § 31.155)
Pennsylvania (2000) (27 Pa. Consol. Stat. § 8301 through § 8305,and § 7707)
Rhode Island (1993) (R.I. Gen. Laws § 9-33-1 through § 9-33-4)
Tennessee (2019, 1997) (Tenn. Code. Ann. § 20-17-101 through § 20-17-110; § 4-21-
1001 through §4-21-1004)
Texas (2011) (Tex. Civ. Prac. & Rem. Code § 27.001 through § 27.011)
Utah (2008) (Utah Code § 78B-6-1401 through § 78B-6-1405)
Vermont (2005) (Vt. Stat. Ann. tit. 12 § 1041)
Virginia (2007) (Va. Code Ann. § 8.01-223.2)
Washmgton (2010, 1989) (Wash. Rev. Code § 4.24.500 through § 4.24.525) (Held
unconstitrtional by Davis v. Cox, 351 P.3d 862, 875 (Wash. 2015))
Many early anti-SLAPP statutes were narrowly drawn by limiting their use to particular
types of parties or cases—for example, to lawsuits brought by public applicants or
pennittees, or to lawsuits brought against defendants speaking in a particular fomm or on
a particular topic. More recently, however, legislatures have recognized that narrow anti-
SLAPP laws are ineffectual in curbing the many forms of abusive litigation that SLAPPs
can take. To that end, most modem statutory enactments have been broad with respect to
the parties that may use the acts and the kmds of cases to which the acts apply.
The recent trend further evidences a shift toward statutes that achieve their goals by
generally employing at least five mechanisms:
1. Creating specific vehicles for filing motions to dismiss or strike early in the litigation
process;
2. Requiring the expedited hearing of these motions, coupled with a stay or limitation
of discovery until after they're heard;
3. Requiring the plaintiff to demonstrate the case has some degree of merit;
4. Imposing cost-shifting sanctions that award attorney's fees and other costs when the
plaintiff is unable to carry its burden; and
5. Allowing for an interlocutoiy appeal of a decision to deny the defendant's motion.
The Need for a Uniform Anti-SLAPP Act. Although there is certainly a movement
toward broad statutes that utilize the five tools described above, the precise ways in which
different states have constructed their laws are far from cohesive. This degree of variance
from state to state—and an absence of protection in 18 states—leads to confusion and
disorder among plaintiffs, defendants, and courts. It also contributes to what can be called
"litigation tourism"; that is, a type of forum shoppmg by which a plaintiff who has choices
among the states m which to bring a lawsuit will do so in a state that lacks strong and clear
anti-SLAPP protections. Several recent high-profile examples of this type of forum
shopping have made the need for uniformity all the more evident.
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The Uniform Public Expression Protection Act seeks to harmonize these varying
approaches by enunciating a clear process through which SLAPPs can be challenged and
their merits fairly evaluated in an expedited manner. In doing so, the Act actually serves
two purposes: protecting individuals' rights to petition and speak freely on issues of public
interest while, at the same time, protecting the rights of people and entities to file
meritorious lawsuits for real injuries.
The Uniform Public Expression Protection Act, Generally. The Uniform Public
Expression Protection Act follows the recent trend of state legislatures to enact broad
statutory protections for its citizens. It does so by utilizing all five of the tools mentioned
above in a motion practice that carefully and clearly identifies particular burdens for each
party to meet at particular phases in the motion's procedure. The general flow of a motion
under the Act employs a three-phase analysis seen in many states' statutes. Upon the filing
of a motion, all proceedings—including discovery—between-the moving party and
responding party are stayed, subject to a few specific exceptions. In the first phase, the
court effectively decides whether the Act applies. It does so by first determining if the
responding party's (typically the plaintiffs) cause of action implicates the moving party's
(typically the defendant's) right to free speech, petition, or association. The burden is on
the moving party to make the initial showing that the Act applies. If the court holds that the
moving party has not carried that burden, then the motion is denied, the stay of proceedings
is lifted, and the parties proceed to litigate the merits of the case (subject to the ability of
the moving party to interlocutorily appeal the motion's denial). If the court determines that
the moving party has carried its burden, then the responding party can show its cause of
action fits within one of the three exceptions to the Act. If it carries that burden—for
example, by showing that its cause of action is against an agent of a governmental unit
acting or purporting to act in an official capacity—then the Act does not apply, and the
motion is denied. If it fails to carry that burden, then the court proceeds to the second step
of the analysis.
In the second phase, the court determines if the responding party has a viable cause of
action from a prima-facie perspective. In this phase, the burden is on the responding party
to establish a prima-facie case for each essential element of the cause of action challenged
by the motion. If the court holds that the responding party has not carried its burden to
establish a pruna-facie case, then the motion is granted, and the responding party's cause
of action is terminated with prejudice to refiling. The moving party is entitled to its costs,
attorney's fees, and expenses. If the court holds that the responding party has carried its
burden, then—and only then—the court proceeds to the third step of the analysis.
In the third phase, the court determines if the responding party has a legally viable
cause of action. In this phase, the burden shifts back to the moving party to show either that
8 the responding party failed to state a cause of action upon which relief can be granted (for
example, a claim that is barred by res judicata, or preempted by some other law), or that
there is no genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law (for example, if the cause of action, while perhaps factually viable, is
time-barred by limitations). If the moving party makes such a showing, the motion is
granted; if it fails to make such a showing, the motion is denied.
Sec. 1. 14 MRSA §556, as amended by PL 2023,c. 322, § 1, is repealed.
Sec. 2. 14 MRSA c. 203,sub-c. 5 is enacted to read:
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SUBCHAPTER 5
UNIFORM PUBLIC EXPRESSION PROTECTION ACT
§731. Short title
This subchapter may be known and cited as "the Uniform Public Expression Protection
Act."
Comments
Although "SLAPP"—an acronym for "Strategic Lawsuit Against Public
Participation"—does not appear in the Act's title, the Uniform Public Expression Protection
Act should be considered an anti-SLAPP act. Although "[t]he paradigm SLAPP is a suit
filed by a large developer against environmental activists or a neighborhood association
intended to chill the defendants' contmued political or legal opposition to the developers'
plans," SLAPPs "are by no means limited to environmental issues, nor are the defendants
necessarily local organizations with lunited resources." Hupp v Freedom Commc'ns, 163
Cal. Rpb-. 3d 919, 922 (Cal. Ct. App. 2013). "[W]hile SLAPP suits 'masquerade as ordinary
lawsuits' the conceptual features which reveal them as SLAPP's are that they are generally
meritless suits brought by large private interests to deter common citizens from exercising
their political or legal rights or to punish them for domg so." Id.
S732. Definitions
As used in this subchapter, unless the context otherwise indicates, the followine terms
have the followine meanines,
1. Governmental unit. "Governmental unit" means a public corporation or
government or eovemmental subdivision. agency or instrymentalitv.
2. Person. "Person" means an individual, estate, trust, partnership, business or
nonprofitentity.^ovemmental unit or other legal entity.
§733. Applicability
1. Goods or services. For the purposes of this section, "goods or services "_c|oes not
include the creation, dissemination, exhibition or advertisement or similar promotion of a
dramatic, literary, musical, political, ioumalistic or artistic work.
2. Cause of action asserted. Except as otherwise provided in subsection 3. this
subchapter applies to a cause of action asserted in a civil action against a tierson based on
the_persc>nls;
A. Communication in a leeislative, executive, judicial, administrative or other
governmental proceeding;
B. Communication on an issue under consideration or review in a leeislative,
5 executive, judicial, administrative or other governmental proceedine;
C. Exercise of the right offi-eedom of speech or of the press, the right to assemble or
petition or the right of association, guaranteed by the United States Constitution or by
the Constitution of Maine, on a matter of public concemior
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D. Written or oral statement made in connection with a discrimination complaint
pursuant to the Maine Human Rights Act prany _writte^Q^^^^^^^ made in
connection with a comDhmtpyrsuant to^^^^^^TO so-called Title
IXjM-Qvisions of the federal Education Amendments of 1972. Public Law 92-318,
3. Exceptions. This subchapter does not apply to a cause of action assertedi
A. Aeainst a governmental unit or an employee or agent of a governmental unit acting
or purporting to act in an official capacity;
B. By a eovemmental unit or an employee or agent of a governmental unit acting in an
official capacity to enforce a law to protect asainst an imminent threat to public health
or safety; or
C. Aeainst a person primarily engaged in the business of selling or leasing goods or
services if the cause of action arises out of a cQmmumcatjpnrelated to^^^A sale
or lease of the goods or services,
Comments
1. Most courts explain the resolution of anti-SLAPP motions in terms of either a three-
or two-pronged procedure. E.g., Younkin v, Hines, 546 S.W.3d 675, 679 (Tex. 2018)
("Reviewing a[n anti-SLAPP] motion to dismiss requires a three-step analysis."); Wilson
v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019) ("A court evaluates an anti-
SLAPP motion in two steps."). Section 2 of the Act constitutes the first step of that
procedure, where the moving party (typically the defendant) must show that the responding
party's (typically the plaintiff's) cause of action arises from the movant's exercise of First
Amendment rights on a matter of public concern. This step focuses on the movant's activity,
and whether the movant can show that it has been sued for that activity. See, e.g., Navellier
v. Sletten, 52 P.3d 703, 711 (Cal. 2002) ("The anti-SLAPP statute's defmitional focus is
not [on] the form of the plaintiffs cause of action but, rather, the defendant's activity that
gives rise to his or her asserted liability and whether that activity constitutes protected
speech or petitioning." (emphasis original)). If the movant cannot satisfy the first step—in
other words, cannot show that the cause of action is linked to First Amendment activity on
a matter of public concern—then the court will deny the motion without ever proceeding
to the second or third step. THOMAS R. BURKE, ANTI-SLAPP LITIGATION § 1.2
(2019). Further discussion of how a court adjudicates the first step, including the parties'
burdens and the materials a court should review, appears in Comments 2 and 3 to Section
7.
2. Although the Act operates in a procedural manner—specifically, by altering the
typical procedure parties follow at the outset of litigation—the rights the act protects are
most certainly substantive in nature. See U.S. ex rel. Newsham v. Lockheed Missiles &
Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applymg California's anti-SLAPP
8 law to diversity actions in federal court because the statute was "crafted to serve an interest
not directly addressed by the Federal Rules: the protection of 'the constitutional rights of
freedom of speech and petition for redress of grievances.'"). Otherwise stated, the Act's
procedural features are designed to prevent substantive consequences: the impairment of
Fu'st Amendment rights and the time and expense of defending against litigation that has
no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13-CV-124,2014 WL
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2611746,at * 1 (S.D. Tex. June 11, 2014). As stated by one California court, "[t]he point
of the anti-SLAPP statute is that you have a right not to be dragged through the courts
because you exercised your constihitional rights." People ex rel. Lockyer v. Brar, 115 Cal.
App. 4th 1315, 13 17 (4th Dist, 2004).
3. The statite is only applicable to civil actions. It has no applicability in criminal
proceedings.
4. The term "civil action" should be constmed consistently with Fed. R. Civ. P. 1.
5. The term "cause of action" refers to a group of operative facts that give rise to one
or more bases for recovery in a civil action. The term contemplates that in one civil action,
a party seekmg relief may assert multiple causes of action that invoke different facts and
theories for relief. In some jurisdictions, other terms of art, such as "claim for relief,"
"ground of action," "right of action," or "case theory," might be more appropriate than
"cause of action." See, e.g., Baral v. Schnitt, 376 P.3d 604, 616 (Cal. 2016) (holding that
when the California Legislature used the term "cause of action" in its anti-SLAPP statute,
"it had in mind allegations of protected activity that are asserted as grounds for relief
(emphasis original)). Regardless of the term used by a state, the Act can be utilized to
challenge part or all of a single cause of action, or multiple causes of action in the same
case. See id. at 615 ("A single cause of action . . . may include more than one instance of
alleged wrongdoing."). Otherwise stated, a single civil action can contain both a cause of
action subject to the Act and one not subject to the Act.
6. Sections 2(b)(l) and (2) apply to a cause of action brought against a person based on
the person's communication. "Communication" should be construed broadly—consistent
with holdings of the Supreme Court of the United States—to mclude any expressive
conduct that likewise implicates the First Amendment. See Texas v, Johnson, 491 U,S. 397,
404 (1989) ("[W]e have long recognized that [First Amendment] protection does not end
at the spoken or written word."); Spence v. Washington, 418 U.S. 405, 409-11 (1974)
(holdmg that conduct constitutes "communication" when it is accompanied by an intent to
convey a particularized message and, given the surrounding cu-cumstances, the likelihood
is great that the message will be understood by those who view it); Rumsfeld v. Fomm for
Acad. and Instititional Rights, 547 U.S. 47, 65-66 (2006); Tinker v. Des Momes Indep.
Cmty. Sch. Dist, 393 U.S. 503, 505-06 (1969). Conduct is not specifically mentioned in
the Act so as to avoid parties from attempting to use it to shield themselves from liability
for nonexpressive conduct that nevertheless tangentially relates to a matter of public
concern. See United States v. O'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept the
view that an apparently limitless variety of conduct can be labeled 'speech' whenever the
person engaging in the conduct intends thereby to express an idea."). But the Act is intended
to protect expressive conduct. For example, a person's work on behalf of a political
campaign might include constitutionally protected expressive conduct, such as putting up
campaign signs or organizing a rally. The Act would protect that conduct. But a person
who damages another candidate's campaign signs or physically threatens attendees at an
opposing rally would not be engaging in expressive conduct, and therefore should not be
able to utilize the Act, even though the conduct tangentially relates to matters of public
concern.
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7. Sections 2(b)(l)-(3) identify three different instances in which the Act may be
utilized. Section 2(b)(l) protects communication that occurs before any legislative,
executive, judicial, administrative, or other governmental proceeding—effectively, any
speech or expressive conduct that would implicate one's right to petition the government.
Section 2(b)(2) operates similarly, but extends to speech or expressive conduct about those
matters being considered in legislative, executive, judicial, administrative, or other
governmental proceedings—the speech or conduct need not take place before the
governmental body. Section 2(b)(3) operates differently than (1) and (2) and provides the
broadest degree of protection; it applies to any exercise of the right of free speech or press,
free association, or assembly or petition, so long as that exercise is on a matter of public
concern.
8. The terms "freedom of speech or of the press," "the right to assemble or petition,"
and "the right of association" should all be construed consistently with caselaw of the
Supreme Court of the United States and the state's highest court.
9. The term matter of public concern" should be construed consistently with caselaw
of the Supreme Court of the United States and the state's highest court. See, e.g., Snyder v.
Phelps, 562 U.S. 443, 453 (2011) (holding that "[s]peech deals with matters of public
concern when it can 'be fairly considered as relating to any matter of political, social, or
other concern to the community,' or when it 'is a subject of legitimate news interest; that is,
a subject of general interest and of value and concern to the public'" (citations omitted));
Brown v. Entna't Merchs. Ass'n, 564 U.S. 786, 790 (2011) ("The Free Speech Clause exists
principally to protect discourse on public matters, but we have long recognized that it is
difficult to distinguish politics from. entertainment, and dangerous to try."). "The [matter-
of-public-concem] inquiry turns on the 'content, form, and context' of the speech." Lane v.
Franks, 573 U.S. 228, 241 (2014) (quoting Connick v. Myers, 461 U.S. 138, 147-48
(1983)). The term should also be construed consistently with terms like "public issue" and
"matter of public interest" seen in some state statutes. See, e.g., CAL. CIV. PROC. CODE
§ 425.16 (employing the terms "public issue" and "issue of public interest"), FihnOn.com
Inc. v. DoubleVerify Inc., 439 P.3d 1156,1164-65 (Cal. 2019).
The California Supreme Court breaks "matter of public concern" (or in its statute,
"public issue" "First, we ask what 'public issue or [ ] issue of public interest' the speech in
question implicates—a question we answer by looking to the content of the speech. Second,
we ask what functional relationship exists between the speech and the public conversation
about some matter of public interest. It is at the latter stage that context proves useful." Id.
(citation omitted). The court observed that the first step is typically not difficult for the
movant: "[V]irtually always, defendants succeed in drawing a line—however tenuous—
connecting their speech to an abstract issue of public interest." Id. But the second step is
where many movants fail. The inquiry "demands 'some degree of closeness' between fhe
challenged statements and the asserted public interest." Id. (citation omitted). As other
California courts have noted, "it is not enough that the statement refer to a subject of
widespread public interest; the statement must in some manner itself contribute to the
public debate." WUbanks v. Walk, 17 Cal. Rptr. 3d 497, 506 (Cal. Ct, App. 2004); see also
Dyer v. Childress, 55 Cal. Rptr. 3d 544, 548 (2007) ("The fact that 'a broad and amorphous
public interest' can be connected to a specific dispute is not enough." (citation omitted)).
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The California Supreme Court explains that what it means to "contribute to the public
debate" "will perhaps differ based on the state of public discourse at a given time, and the
topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of
the substance of the speech. We are not concerned with the social utility of the speech at
issue, or the degree to which it propelled the conversation in any particular direction; rather,
we examine whether a defendant—through public or private speech or conduct—
participated in, or furthered, the discourse that makes an issue one of public interest.
FilmOn, Inc., 439 P.3d at 1166.
Further discussion of how a court adjudicates whether a cause of action is based on the
moving party's exercise of First Amendment rights on a matter of public concern, including
the movant's burden and the materials a court should review, appears in Comment 2 to
Section 7.
10. Section 2(c) provides a list of exemptions, or situations to which the Act does not
apply. It is the burden of the responding party to establish the applicability of one or more
exemptions. Thus, even if a movant can show the Act applies under Section 2(b), the Act
may nevertheless not apply if the non-movant can show the cause of action is exempt.
Further discussion of how a court adjudicates whether a cause of action is exempt,
including the responding party's burden and the materials a court should review, appears in
Comment 3 to Section 7.
11, The term "governmental unit or an employee or agent of a governmental unit acting
in an official capacity" includes any private people or entities working as government
contractors, to the extent the cause of action pertains to that government contract.
12. The term "dramatic, literary, musical, political, journalistic, or artistic work" used
in Section (a)(3) should be constmed broadly to include newspapers, magazines, books,
plays, motion pictures, television programs, video games, or Internet websites or other
electronic mediums.
13. Section 2(c)(3) carves out from the scope of the Act "communication[s] related to
[a] person's sale or lease of [ ] goods or services" when that person is primarily engaged m
the selling, leasing, or licensing of those goods or services. In other words, "commercial
speech" is exempted from the protections of the Act. By way of illustration, if a mattress
store is sued for false statements made m its advertising of mattresses—whether by an
aggrieved consumer or a competitor—the mattress store would not be able to avail itself of
the Act. But if the same mattress store were sued for tortious interference for organizmg a
petition campaign to oppose the building of a new school, its activity would not be related
to the sale or lease of goods or services, and it could use the Act for protection of its First
Amendment conduct.
But the "commercial-speech exemption" does not apply to the creation, dissemination,
exhibition, or advertisement of a dramatic, literary, musical, political, journalistic, or
artistic work. This is consistent with the holdings of most courts that the contents of works
protected by the First Amendment are not considered "goods or services," even if sold for
profit. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) ("That books,
newspapers, and magazines are published and sold for profit does not prevent them from
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ROS
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being a form of expression whose liberty is safeguarded by the First Amendment."); Winter
v. G.P. Putaam's Sons, 938 F.2d 1033, 1036 (9th Cir. 1991) (ideas and expressions in a
book are not a product); Way v. Boy Scouts of Am., 856 S.W.2d 230, 239 (Tex. 1993)
("We conclude that the ideas, thoughts, words, and information conveyed by the magazine
... are not products."). This ensures that claims targeting those in the business of making
and selling works protected by the First Amendment are not denied the ability to invoke
the Act. See Dyer v. Childress, 147 Cal. App. 4th 1273, 1283 (2007) (expressive works
exception to the commercial speech exemption was "intended to 'exempt the news media
and other media defendants (such as the motion picture industry) from the [commercial-
speech exemption] when the underlying act relates to news gathering and reporting to the
public with respect to the news media or to activities involved in the creation or
dissemination of any works of a motion picture or television studio."' (citations omitted)).
§734. Special motion for expedited relief
Not later than 60 days after a party is served with a complaint, petition. cross-claim,
counterclaim, 3rd-partv claim or other pleading that asserts a cause of action to which this
subchapter applies, or at a later time on a showing of good cause, the party may file a
Special jnotion for expedited relief to dismiss the cause of action or part of the cause of
action.
Comments
1. Unlike a defense under Fed. R. Civ. P. 12(b), the motion need not be filed prior to
other pleadings in the case, and a party should not be estopped from filing a motion by
taking any other actions in the case.
2. The Act should apply not just to mitial claims brought by a plaintiff against a
defendant, but to any claim brought by any party who seeks to punish or intimidate another
party for the exercise of its constitutional rights. In this connection, initial defendants
frequently use their ability to bring counterclaims and crossclaims for abusive purposes,
and the Act should be available to seek dismissal of such claims.
3. The terms "complaint" and "petition" are intended to include any amended pleadings
that assert a cause of action for the first time in a case.
4. "Crossclaim" means a cause of action asserted between co-plaintiffs or co-
defendants m the same civil action.
5. "Counterclaim" means a cause of action asserted by a party against an opposing party
3 after an original claim has been made by that opposing party. The term should be construed
synonymously with terms like "counteraction," "countersuit," and "cross-demand."
6. "Third-party" claim should be construed in accordance with Fed. R. Civ. P. 14.
7. "Good cause" means a reason factually or legally sufficient to appropriately explain
why the motion was not brought within the prescribed deadline. This section should not be
construed to require a party to seek leave of court prior to filing a motion later than the
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prescribed deadline. Instead, a court should make any good-cause determination as part of
its ruling on the motion under Section 8.
8. Some states may choose to title their special motion one to "dismiss," while others
may title it one to "strike." The choice of title is not substantive in nature and does not
affect uniformity or construction of the statute.
S735. Stay
1. Stay proceedings. Except as otherwise provided in subsections 4 to 7. on the filing
of a motion under section 734:
A. All other proceedines between the moving party and_respondm& party, including
discovery and a pending hearing or motion, are staved; and
B. On motion by the movme party, the court may stay a^eann^Q^^^^^^^
another party, or discover/ by another party, if the hearmg or ruling on the motion
would adjudicate, or the discovery would relate to. an issue material to the motion
under section 734.
2. Length of stay. A stay under subsection 1 remains in effect until entry of an order
ruling on the motion under section 734 and expiration of the time under the Maine Rules
of Appellate Procedure for thejnovm^partv^ to
3. Stay on aDDeaL_._ExceEt as.plhe^^ 6 and 7, if a party
appeals from an order ruline on a motion under section 734, all proceedings between all
parties in the action are staved. The stay remains in effect until the conclusion of the appeal.
4. Limited discovery. During a stay under subsection 1, the court may allow limited
discover/ if a party shows that specific information is necessary to establish whether a
party has satisfied or failed to satisfy a burden under sectio^^ 1 and the
information is not reasonably available unless discovery is allowed.
5. IMotion for costs, attorney's fees and expenses. A motion under section 740 for
costs, attorney's fees and expenses is not subject to a stay under this section.
6. Dismissal. A stay granted under this section does not affect a party's ability
8 voluntarily to dismiss a cause of action or part of a cause of action or move to sever a cause
ofaction.
7. Other motions. During a stay under this_ section, the court for good cause may hear
and rulej:)n:
2 A. A motion unrelated to the motion under section 734: and
B, Am to protect against an imminent
threat to public health or safety.
Comments
1. Section 4 furthers the purpose of the Act by protecting a moving party from the
burdens of litigation—which include not only discovery, but responding to motions and
8 other potentially abusive tactics—until the court adjudicates the motion and the moving
party's appellate rights with respect to the motion are exhausted.
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2. Section 4(a)(l) provides that the stay only applies to proceedings between the parties
to the motion, but Section 4(a)(2) allows the moving party to seek a stay of proceedings
and discoveiy between other parties if there are legal or factual issues at play in those
proceedings that are material to the party's motion. Otherwise stated, if a defendant moves
to dismiss a plaintiffs cause of action, that motion should not stay proceedings or discovery
between the plaintiff and other defendants—or between other defendants themselves—
unless those proceedings involve legal or factual issues that are material to the motion, or
the discovery is relevant to the motion.
By way of illustration, a candidate for political office sues two defendants—his
opponent, for defamation over comments made about the plaintiff during the campaign,
and his opponent's campaign manager, for hacking into the plaintiffs campaign's computer
files and erasing valuable donor lists and other data. Only the plaintiffs opponent moves to
dismiss under the Act; the campaign manager does not. In that case, the plaintiff could still
proceed with discovery and dispositive motions against the campaign manager, because
the claim concerning the hacking is entirely unrelated to the defamation claim. The moving
defendant has no interest that would be affected by the hackmg claim. But under slightly
altered facts, a different outcome might exist: The plaintiff alleges that (1) the opposing
campaign manager violated the plaintiffs privacy rights by stealing sensitive personal
information in the hacking incident; and (2) the opposing candidate violated the plaintiffs
privacy rights by disclosing that sensitive personal information in a speech. Again, the
opposing candidate moves to dismiss under the Act; the campaign manager does not. In
that case, the causes of action are so interrelated that the moving defendant would not be
able to protect his interests without participating in the case against his co-defendant—
something he would not have to do if he prevails on the motion. In such an example, the
court should grant a request to stay the proceedings as between the plaintiff and non-
moving defendant, because the moving defendant would have no way of protecting his
interests without participating in the case.
3. Section 4(c) provides that all proceedings between all parties in the case are stayed
if a party appeals an order under the Act. This subsection protects a moving party from
having to battle related claims—some of which might be subject to a motion under the Act
and some which are not—at the same time in two different courts. For example, if two
plaintiffs file causes of action against a single defendant, and the defendant only moves to
dismiss against one plaintiff but not the other, the defendant should be able to appeal a
denial of that motion without also having to simultaneously defend related causes of action
5 (albeit ones not subject to the Act in the trial court brought by the other plaintiff.
By way of illustration, multiple plaintiffs—all contestants on a reality TV show contest
sue one defendant—the TV producer—in a single case for their negative treatment on the
show. Each plaintiffs claim is distinct and centers on separate statements. The defendant
files a motion to dismiss under the Act against only one plaintiff. The motion is denied; the
defendant appeals under Section 9. At that point, all the proceedings are stayed, because
the defendant should not be required to try claims in the b-ial court while appealing other
claims from the same case in the appellate court.
To the extent any party not subject to the motion desires to move forward in the trial
court on what it believes are unrelated causes of action while the appeal of the motion's
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order is pending, it retains the right under Section 4(f) to request a severance of those causes
of action.
4. Section 4(d) provides the court with discretion to permit a party to conduct specified,
limited discovery amied at the sole purpose of collecting enough evidence to meet its
burden or burdens under Section 7(a) of the Act. This provision recognizes that a party may
not have the evidence it needs—for example, evidence of another individual's state of mind
in a defamation action—prior to filing or responding to a motion. The provision allows the
party to attempt to obtain that evidence without opening the case up to full-scale discovery
and incurring those burdens and costs.
5. Section 4(g) serves the ultimate purpose of the Act: to allow a party to avoid the
expense and burden of frivolous litigation until the court can determine that the claims are
not frivolous. In that connection, a court should be free to hear any motion that does not
affect the moving party's right to be free from an abusive cause of action, including a
motion to conduct discovery on causes of action unrelated to the cause of action being
challenged under the Act, and motions for preliminary injunctive relief seeking to protect
against an imminent threat to public health or safety.
§736. Judicial priority
An action under this subchapter may be advanced on the docket and receive priority
over other cases when the court determines that the interests of justice so require.
Comments
1. Section 5 should not be construed to prevent the parties from agreeing to a later
hearing date and presentmg that agreement to the court with a request to find "other good
cause" for a later hearing. Nevertheless, the court, and not the parties, is responsible for
controlling the pace of litigation, and the court should affmnatively fmd that good cause
does exist independent of a mere agreement by the parties to a later hearing date.
2. The question of whether the Act requires a live hearing or whether a court may
consider the motion on written submission should be governed by the local customs of the
jurisdiction.
3. State law and local customs of the jurisdiction should dictate the consequences for a
court failing to comply with the timelines set forth in this section.
§737. Proof
In ruling on a motion under section 734. the court shall consider the pleadings. the
motion, any reply or response to the motion and any evidence that could be considered in
ruling on a motion for summary iudement under Rule 56 of the Maine Rules of Civil
Procedure.
Comments
1. The Act establishes a procedure that shares many attributes with summary judgment.
See Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co., 434 P.3d 1152, 1157 (Cal.
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2019) (describing the California statute as a "summary-judgment-like procedure"); Gundel
v. AV Homes, Inc., 264 So. 3d 304, 3 12-13 (Fla. Dist. Ct. App. 2019) (equating a motion
under Florida's law to one for summary judgment). So, consistent with summary-judgment
practice, parties should submit admissible, competent evidence—such as affidavits,
deposition testimony, or tangible evidence—for the court to consider. See Sweetwater
Union High Sch. Dist., 434 P.3d at 1157 ("There are important differences between [anti-
SLAPP motions and motions for summary judgment]. Chief among them is that an anti-
SLAPP motion is filed much earlier and before discovery. However, to the extent both
schemes are designed to determine whether a suit should be allowed to move forward, both
schemes should require a showing based on evidence potentially admissible at trial
presented in the proper form."). A court should use the parties' pleadings to frame the issues
in the case, but a party should not be able to rely on its own pleadings as substantive
evidence. See id.; Church of Scientology v. Wollersheim, 49 Cal. Rptr. 2d 620, 636, 637
(Cal. Ct. App. 1996), disapproved of on another point in Equilon Enters, v. Consumer
Cause, Inc., 124 Cal. Rptr. 2d 507, 519 n.5 (Cal. Ct. App. 2002). A party may rely on an
opposing party s pleadings as substantive evidence, consistent with the general mle that an
opposing party's pleadings constitute admissible admissions. See Faiella v. Fed. Nat'l
Mortg. Ass'n, 928 F.3d 141, 146 (1st Cir. 2019) ("A party ordinarily is bound by his
representations to a court"), PPX Enters., Inc. v, Audiofidelity, Inc., 746 F.2d 120, 123 (2d
Cir. 1984) ("[SJtipulations and admissions in the pleadings are generally binding on the
parties and the Court.").
2. The question of whether the Act reqiures a live hearing or whether a court may
consider the motion on written submission should be governed by the local customs of the
jurisdiction.
§738. Dismissal of cause of action in whole or in part
1. Dismissal with prejudice. In rslmg,os,& motion under section 734, the court shall
dismiss with prejudice a cause of action, or part of a cause of action, if:
A. The moving party establishes under section 733. subsection 2 that this Act applies;
B. The responding party fails to establishjinder section 73 3, subsection 3 that this Act
does not apBly; and
C. Either:
CD The responding party fails to establish a prima facie case as to each essential
element of the cause of action: or
(2\ The moving party establishes that:
5 Cat The responding party failed to state a cause of action upon which relief can
be granted; or
fb) There is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law on the cause of action or part of the
cause of action.
2. Dismissal without prejudice; right to costs, attorney's fees and expenses. A
voluntary^ dismissal without prejudice of a responding party's cause of action, or part of a
cause of action, that is the subject of a motion under section 734 does not affect a moving
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party's right to obtam a ruling on the motion and seek costs, attorney's fees and expenses
under section 740.
3. Dismissal ^ on motion. A voluntary dismissal with
prejudice of a respondmg party's cause of action, or part of a cause of action, that is the
subject of a motion under section 734 establishes for the purpose of section 740 that the
movine party prevailed on the motion.
Comments
1. Section 7(a) recognizes that a court can strike or dismiss a part of a cause of action-
for example, certain operative facts or theories of liability—and deny the motion as to other
parts of the cause of action. E.g., Baral v. Schnitt, 376 P.3d 604, 615 (Cal. 2016) (holding
that California's statute can be utilized to challenge all or only part of a single cause of
action, because a single cause of action may rely on multiple instances of conduct, only
some of which may be protected).
2. Section 7(a)(l) establishes "Phase One" of the motion's procedure—applicability. In
this phase, the party filing the motion has the burden to establish the Act applies for one of
the reasons identified in Section 2(b). To use the Act, a movant need not prove that the
responding party has violated a constitutional right—only that the responding party's suit
arises from the movant's constitutionally protected activity. THOMAS R. BURKE, ANTI-
SLAPP LITIGATION § 3.2 (2019). Nor does the moving party need to show that the
responding party intended to chill constitutional activities (motivation is urelevant to the
phase-one analysis) or prove that the responding party actually chilled the movant's
protected activities. Id. But "[t]he mere fact that an action was filed after protected activity
took place does not mean the action arose from that activity for the purposes of the anti-
SLAPP statrte. Moreover, that a cause of action arguably may have been 'triggered' by
protected activity does not entail it [as] one arising from such." Navellier v. Sletten, 52 P.3d
695, 708-09 (Cal. 2002). Rather, the Act is available to a moving party if the conduct
underlying the cause of action was "itself an "act in furtherance" of the party's exercise of
First Amendment rights on a matter of public concern. See City of Cotati v. Cashman, 52
P.3d 695, 701 (2002). The moving party meets this burden by demonstrating two things:
first, that it engaged in conduct that fits one of the three categories spelled out in Section
2(b); and second, that the moved-upon cause of action is premised on that conduct. See id.
In short, the Act's "definitional focus is not the form of the [non-movant's] cause of action
but, rather, the [movant's] activity that gives rise to his or her asserted liability—and
whether that activity constitutes protected speech or petitioning." Navellier, 52 P,3d at 711.
In many instances, the moving party will be able to carry its burden simply by usmg
the responding party's pleadings. See Hersh v. Tatum, 526 S.W,3d 462, 467 (Tex. 2017)
("When it is clear from the plaintiffs pleadmgs that the action is covered by the Act, the
defendant need show no more."). As pointed out m Comment 2 to Section 6, a party is
always free to use an opposmg party's pleadings as stipulations and admissions, and when
the Complaint spells out the cause of action and the activity underlymg that cause of action,
the moving party will be able to satisfy its burden rather easily. For example, if a defendant
is sued by a public official for defamation, and the Complaint identifies the allegedly
defamatory statement made by the defendant, then the defendant should need to do no more
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than attach the Complaint as an exhibit to its motion—the Complaint itself would clearly
demonstrate that the defendant is being sued for speaking out about a public official
(undoubtedly a matter of public concern).
In other instances, the moving party will have to attach evidence to its motion to
establish that the cause of action is based on the exercise of protected activity. That's
because a creative plaintiff can disguise what is actually a SLAPP as a "garden variety" tort
action. "Thus, a court must look past how the plaintiff characterizes the defendant's conduct
to determine, based on evidence presented, whether the plaintiffs claims are based on
protected speech or conduct." BURKE, supra at § 3.4. But the factthatthe movant's burden
must be carried with evidence—whether that be the responding party's pleadings or
evidence the movant presents—does not mean the inquiry is a factual one. On the contrary,
the motion is legal in nature, and the burden is likewise legal. Thus, the court should not
impose a factual burden on the moving party—like "preponderance of the evidence" or
"clear and convincing evidence"—typically seen in fact-finding inquiries. Rather, like other
legal rulings, the court should simply make a determination, based on the evidence
produced by the moving party, whether a cause of action brought against the moving party
is based on its (1) communication in a legislative, executive, judicial, administrative, or
other governmental proceeding; (2) communication on an issue under consideration or
review in a legislative, executive, judicial, administrative, or other governmental
proceeding; or (3) exercise of the right of freedom of speech or of the press, the right to
assemble or petition, or the right of association, on a matter of public concern. It should do
so without weighing the parties' evidence against each other, but instead by determining
whether the evidence put forth by the movant establishes the legal standard. If the moving
party fails to prove the Act applies, the motion must be denied.
3. Section 7(a)(2) is also part of "Phase One" of the motion's procedure. Even if the
Act applies for one of the reasons identified in Section 2(b), the Act may nevertheless not
apply if the party against whom the motion is filed can establish the applicability of an
exemption identified in Section 2(c). A party seeking to establish the applicability of an
exemption bears the burden of proof on that exemption. Like establishing applicability
under Section 2(b), the burden to establish non-applicability under Section 2(c) is legal,
and not factual. The responding party may use the moving party's motion, or affidavits or
any other evidence admissible in a summary judgment proceeding, to cany its burden. And
like the Section 2(b) analysis, the court should decide whether the cause of action is exempt
from the act without weighing the evidence against that of the moving party, but instead by
determining whether the evidence produced by the responding party establishes the
applicability of an exemption. If the responding party so establishes, the motion must be
denied. If the moving party proves the Act applies and the responding party cannot establish
the applicability of an exemption, the court moves to "Phase Two" of the motion's
procedure.
4. Section 7(a)(3)(A) establishes "Phase Two" of the motion's procedure—prima-facie
viability. Anti-SLAPP laws "do not insulate defendants from any liability for claims arising
from protected rights of petition or speech. [They] only provide[] a procedure for weeding
out, at an early stage, meritless claims arising from protected activity." Sweetwater Union
High Sch. Dist. v. Gilbane Bldg. Co., 434 P.3d 1152, 1157 (Cal. 2019) (emphasis original)
(citations omitted). Phase Two (as well as Phase Three) is where that "weeding out" occurs.
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In this phase, the party against whom the motion is filed has the burden to show its case
has merit by establishing a prima-facie case as to each essential element of the cause of
action being challenged by the motion. See Baral v. Schnitt, 376 P.3d 604, 613 (Cal. 2016)
(holding that a responding party cannot prevail on an anti-SLAPP motion by establishing
a prima-facie case on any one part of a cause of action). The moving party has no burden
in this phase. "Prima facie" means evidence sufficient as a matter of law to establish a given
fact if it is not rebutted or contradicted. Dallas Morning News, Inc. v. Hall, 579 S.W.3d
370, 376-77 (Tex. 2019) (prima-facie evidence "is 'the minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true'"); Wilson v.
Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002) ("[TJhe plaintiff must
demonstrate that the complamt is [ ] supported by a sufficient prima-facie showing of facts
to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.").
Precisely how the responding party carries its burden to establish a pruna-facie case "will
vary from case to case, dependmg on the nature of the complaint and the thrust of the
motion." Baral, 376 P.3d at 614. But the responding party should be afforded "a certain
degree of leeway" in carrying its burden "due to 'the early stage at which the motion is
brought and heard and the limited opportunity to conduct discovery.'" Integrated Healthcare
Holdings, Inc. v. Fitzgibbons, 44 Cal. Rptr. 3d 517, 529 (2006) (citations omitted).
California courts have "repeatedly described the anti-SLAPP procedure as operating like
an early summary judgment motion." THOMAS R. BURKE, ANTI-SLAPP LITIGATION
§ 5,2 (2019), "[A] plaintiffs burden as to the second prong of the anti-SLAPP test is akin
to that of a party opposing a motion for summary judgment." Yu v. Signet BankA^irginia,
126 Cal. Rptr. 2d 516, 530 (Cal. Ct. App. 2002) (disapproved of on other grounds by
Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 413 P.3d 650 (Cal.
2018)).
Accordingly, all a responding party must do to satisfy its burden under Phase Two is
produce evidence that, if believed, would satisfy each element of the challenged cause of
action, A court may not weigh that evidence, but rather must take it as true and determine
whether it meets the elements of the moved-upon cause of action. Sweetwater Union High
Sch. Dist., 434 P.3d at 1157. If the responding party cannot establish a prima-facie case,
then the motion must be granted and the cause of action (or portion of the cause of action)
must be stricken or dismissed. If the respondmg party does establish a prima-facie case,
then (and only then) the court moves to "Phase Three" of the motion's procedure.
5. Section 7(a)(3)(B) establishes "Phase Three" of the motion's procedure—legal
viability. Even if a responding party makes a prima-facie showing under Section
7(a)(3)(A), the moving party may still prevail if it shows that the responding party failed
to state a cause of action upon which relief can be granted or that there is no genuine issue
as to any material fact and the party is entitled to judgment as a matter of law—in other
words, that the cause of action is not legally sound. In this phase, the burden shifts back to
the moving party. If the movmg party makes a showing under Section 7(a)(3)(B), then the
motion must be granted and the cause of action (or portion of the cause of action) must be
stricken or dismissed. If the moving party does not make such a showing—and the
responding party successfully established a prima-facie case in "Phase Two"—then the
motion must be denied.
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For example, a plaintiff desiring to build a "big box" store sues a defendant for tortious
interference based on the defendant's efforts to organize a public campaign adverse to the
plaintiff. The defendant moves to dismiss under the Act and establishes that the suit targets
he First Amendment activity on a matter of public concern. Thus, the motion moves to
Phase Two. In that phase, the plaintiff is able to establish a prima-facie case on each
essential element of its tortious interference cause of action. Thus, the motion moves to
Phase Three. But in that final phase, the defendant shows that the claim is barred by
limitations. In such an instance, the court must grant the motion, because the defendant
showed itself to be entitled to judgment as a matter of law.
Although Phase Three uses traditional summary judgment and Fed. R. Civ. P. 12(b)(6)
language, it does not serve as a replacement for those vehicles. On the contrary, summary
judgment and other dismissal mechanisms remain options for defendants who cannot
establish that they have been sued for protected activity. In other words, to get to Phase
Three—and be entitled to the Act's sanctions under Section 10—a movant must first prevail
under Phase One by showing the Act's applicability. But by employing a legal-viability
standard, the Act recognizes that a SLAPP plaintiff can just as easily harass a defendant
with a legally nonviable claim as it can with a factually nonviable one.
6. Sections 7(b) and (c) recognize that a party may desire to dismiss or nonsuit a cause
of action after a motion is filed in order to avoid the sanctions that accompany a dismissal
under Section 10. Both sections serve to maintain the moving party's ability to seek
attorney's fees and costs—even though the offending cause of action has been dismissed—
because the filing of a motion under the Act is costly, and many plaintiffs refuse to
voluntarily dismiss their claims until a motion has been filed. But a prudent moving party
should take efforts to inform opposing parties that it intends to file a motion under the Act,
so as to give them an opportunity to voluntarily dismiss offending claims before a motion
is filed. Courts may take a moving party's failure to do so mto account when calculating
the reasonableness of the moving party's attorney's fees.
7. Section 7(b) protects a moving party from the gamesmanship of a responding party
who dismisses a cause of action after the filing of a motion, only to refile the offending
0 cause of action after the motion is rendered moot by the claim's dismissal.
8. Once a motion has been filed, a voluntary dismissal or nonsuit of the responding
party's cause of action does not deprive the court of jurisdiction.
9. State law should dictate the effect of a dismissal of only part of a cause of action.
§739. Appeal
A moving party may appeal jis_& matter of right from an order denying, m whole or in
part, a motion under section 734, An appeal of a judgment or order under this subchapter
7 is governed by the Maine Rules of Appellate Procedure.
Comments
1. "If the defendant were required to wait until fmal judgment to appeal the denial of a
meritorious anti- SLAPP motion, a decision by this court reversing the district court's denial
Pagel8-131LR1654(02)
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of the motion would not remedy the fact that the defendant had been compelled to defend
against a meritless claim brought to chill rights of free expression. Thus, [anti-SLAPP
statutes] protect the defendant from the burdens of trial, not merely from ultimate
judgments of liability." Batzel v, Smith, 333 F.3d 1018, 1025 (9th Cu-. 2003) (superseded
by statute on unrelated grounds as stated m Fyk v. Pacebook, Inc., No. 19-16232, 2020 WL
3124258,at *2 (9th Cir. June 12, 2020)).
2. This section should not be constmed to foreclose an interlocutory appeal of an order
granting, in whole or in part, a motion under Section 3, if state law would otherwise permit
such an appeal.
3. This section is not intended to affect any separate writ procedure a state may have.
4. This section is not intended to prevent a court from entering an order certifying a
question or otherwise permitting an immediate appeal of an order that dismisses only part
of a claim.
5. A party who chooses not to interlocutorily appeal under this section should not be
foreclosed from filing an ordinary, non-interiocutory appeal of a court's denial of a motion
under Section 3 following the entry of a final, appealable judgment,
§740. Costs, attorney's fees and expenses
On a motion under section 734. the court shall award court costs, attorney's fees and
reasonable litieation expenses related to the motion:
1. If movine party prevails. To the moving partyjfthe moving party prevails on the
motion; or
2. If respondine party prevails. To the resDondin& partY if the responding party
prevails on the motion and the court finds that the motion was frivolous or filed solely with
intent to delay the proceedine.
Comments
1. The mandatory nature of the relief provided for by this section is integral to the
uniformity of the Act. States that do not impose a mandatory award upon dismissal of a
cause of action will become safe havens for abusive litigants. Without the prospect of
having to financially reimburse a successful moving party, SLAPP plaintiffs will be able
to file their frivolous suits in such states with impunity, knowing that, at worst, their claims
will only be dismissed. But because moving parties would be financially responsible for
the expense of obtaining that dismissal, the effect of the abusive cause of action is
nevertheless achieved. The only way to assure a truly uniform application of the Act is to
require the award of attorney's fees to successful moving parties.
2. Nothing m this section should be construed to prevent a court, in appropriate
circumstances, from awarding sanctions under other applicable law or court rule agauist a
party, the party s attorney, or both. For instance, many states have adopted court rules
8 analogous to Fed. R. Civ. P. 11, and the constricted breadth of Section 1 0 should not act as
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a shield or restriction agamst the imposition of such sanctions where they would be
otherwise warranted,
3. The term "costs" includes filing fees, as well as other monetary amounts a state may
define as a "cost."
4. The term "attorney's fees" means the fees paid to the attorney to compensate for his
or her time and effort m the prosecution or defense of the motion.
5. The term "litigation expenses" means the hard costs an attorney mcurs in the
prosecution or defense of the motion. Typical expenses in a case can include copies and
faxes, postage, couriers, expert witnesses, consultants, private court reporters, and travel.
§741. Construction
This subchapter must be broadly construed and applied to protect the exercise of the
right of freedom of speech and of the press, the right to assemble and petition and the rieht
of association guaranteed by the United States Constitution or by the Constitution of Maine.
Comments
Similar expressions of intent by states that their anti-SLAPP statutes be broadly
construed have been pivotal to courts' interpretations of those statutes. See, e.g.,
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (recognizing that
the Texas Legislature "has instructed that the [statute] 'shall be construed liberally to
effectuate its purpose and intent fully'"); Briggs v. Eden Council for Hope & Opportunity,
969 P.2d 564, 573 (Cal. 1999) ("The Legislature's 1997 amendment of [California's anti-
SLAPP statute] to mandate that it be broadly construed apparently was prompted by
judicial decisions . . . that had narrowly construed it. ... That the Legislature added its
broad construction proviso . . . plainly indicates these decisions were mistaken in their
narrow view of the relevant legislative intent.").
§742. Uniformitv of application and construction
In applying and construing this chapter, consideration must be eiven to the need to
promote uniformity of the law with respect to its subject matter among states that enact it.
Sec. 3. Application. This Act applies to a civil action filed or cause of action asserted
in a civil action on or after January 1, 2025.
Sec. 4. Savings clause. This Act does not affect a cause of action asserted before
January 1, 2025 in a civil action or a motion under the Maine Revised Statutes, Title 14,
former section 556 regarding the cause of action.
Sec. 5. Legislative intent. This Act is the Maine enactment of the Uniform Public
Expression Protection Act as revised by the National Conference of Commissioners on
Uniform State Laws. The text of the uniform act has been changed to conform to the Maine
statutory conventions. The changes are technical in nature and it is the intent of the
Legislatoe that this Act be interpreted as substantively the same as the uniform act.
Page20-131LR1654(02)
COMMITTEE AMENDMENT
COMMITTEE AMENDMENT " /^ " to S.P. 367, L.D. 870
Sec. 6. Comments. The Legislature accepts the Uniform Comments composed by
the National Conference of Commissioners on Uniform State Laws as part of the Uniform
Public Expression Protection Act.
Sec. 7. Effective date. This Act takes effect January 1, 2025.'
Amend the bill by relettermg or renumbering any nonconsecutive Part letter or section
number to read consecutively.
SUMMARY
This amendment repeals the State's law against strategic lawsuits against public
participation, or the anti-SLAPP law, and replaces it with the Uniform Law Commission's
Uniform Public Expression Protection Act. This legislation takes effect January 1,2025,
COMMITTEE AMENDMENT