ST. GEORGE — Last week the Legislature passed a bill straightening state law against lawsuits aimed at intimidating people from exercising their freedom of speech in the public square.
“There’s been a movement in the United States — not just in Utah but across the country — to shut down free speech in the public square through intimidation,” Sen. Curtis Bramble, R-Provo, told the House Business and Labor Committee on Jan. 27. “That intimidation usually comes in the form of weaponizing the judicial branch through filing lawsuits.”
Bramble’s bill, the Public Expression Protection Act, designated SB 18 in the 2023 Utah Legislature, unanimously passed both the Senate and House on Jan. 24 and Feb. 2 respectively. The bill strengthens a previous law passed by the state over 20 years ago. Former St. George Rep. Lowry Snow, who helped craft SB 18, said the current law fell short of its intended purpose.
SB 18 is known as an anti-SLAPP law. SLAPP stands for “strategic lawsuit against public participation.”
According to Anti-Slapp.org: “SLAPPs are used to silence and harass critics by forcing them to spend money to defend these baseless suits. SLAPP filers don’t go to court to seek justice. Rather, SLAPPs are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources.”
Snow said SLAPPs tend to be used by developers to quiet opposition to their projects. The people who speak out against the developer may find themselves facing a suit for slander or defamation. While the developer has the financial resources to take the case to court, those targeted by the suit likely do not. This can lead to people being intimidated into silence or facing financial ruin in the process of defending themselves.
“There shouldn’t be intimidation,” Bramble said during a Senate committee for the bill. “Your speech shouldn’t be squelched by the threat of intimidation, a threat of litigation.”
While Utah originally adopted an anti-SLAPP law in 2001, it lacked elements that made it easy to apply or deter SLAPPs from being filed in the first place. Attorney David Reymann, who Bramble also invited to speak on the bill, expanded on Snow’s misgivings over the current law and why Bramble’s bill was needed.
Both Snow and Reymann have been involved in defending clients against SLAPP suits in the past and said they had their efforts stymied by the current law for three primary reasons:
- Current law places a high burden on the defendants to prove they had not defamed or slandered the plaintiff in some way.
- Current law only applies to speech made against the government and not other parties, such as a developer.
- Current law does not provide for an automatic award of attorneys fees to the defendant if they win the suit.
The third point “is critical to deterring these types of lawsuits,” Reymann said.
The second point, he added, applied to events that transpired within the last two years involving David Robinson, a former volunteer of the Salt Lake County Republican Party, who sued many people – some members of the Legislature included – in early 2022.
The suit focused on allegations made against Robinson by women within the Republican Party who said he had created a toxic environment through harassment, body shaming and other inappropriate behaviors.
Robinson, who had been the communications director for the county party, filed his suit in January 2022 and went after the women who made accusations against him, the Salt Lake Tribune, and many others (nearly 150 in all) who so much as liked, commented on or reposted any statements on social media that related to the accusations. He called it a “concerted effort to defame him.”
As current Utah law only applies to speech made directly to the government, Reymann said, it couldn’t be applied in that case.
According to the Salt Lake Tribune, Robinson’s case was thrown out by a judge last March.
An example of the third point involving the awarding of attorneys fees was also given in the Senate committee hearing held Jan. 18.
This example came from attorney Jeff Hunt, who represents the Utah Media Coalition and has dealt with SLAPP suits for over 20 years. He shared the story of the former publisher of the American Fork Citizen in northern Utah. The publisher at the time, Brett Bezzant, was sued by local businessman, William Jacob, over an editorial Bezzant ran in 1999.
The editorial came in response to a paid advertisement Jacob ran in the paper that claimed two candidates for the American Fork City Council at the time were not eligible to hold office. The editorial contradicted those claims by calling them false, and the publisher apologized for letting the advertisement run. This resulted in Jacob filing a lawsuit against Bezzant and the American Fork city government.
While the case eventually came to a conclusion in 2004 with Bezzant winning in the Utah Supreme Court, Hunt said the court found the state’s anti-SLAPP law to be so narrow in application that Bezzant couldn’t recover attorney and court costs that equated to hundreds of thousands of dollars.
“That’s an example of how citizens who exercise their First Amendment rights lose, even when they win in court,” Hunt said.
Bramble’s bill will not only address the limitations of the current law but also help deter so-called “forum shopping,” which was described as a party looking to a state with weak anti-SLAPP laws and launching litigation there. This is due to the law being a product of the Uniform Law Commission, a bipartisan group of lawyers from each state who work together to provide a common framework for laws that can be applied uniformly from state to state.
Snow is currently a member of the Uniform Law Commission as one of Utah’s representatives.
With the unanimous passage of SB 18 by the Legislature, it now goes to Gov. Spencer Cox’s desk for signing.
Check out all of St. George News’ coverage of the 2023 Utah Legislature here.
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