New Jersey Bolsters First Amendment with Anti-SLAPP Law

By Zachary D. Wellbrock and James Harry Oliverio

On September 7, 2023, New Jersey became the 32nd state in the country to enact so-called “anti-SLAPP” legislation when Governor Phil Murphy signed into law bill S-2802/A-4393, formally named the “Uniform Public Expression Protection Act.”

The purpose of this legislation is to protect people from meritless lawsuits designed to silence public criticism, and to protect the exercise of First Amendment rights. While the new law represents a monumental step forward for First Amendment protections in New Jersey, individuals and organizations must be cognizant of its limitations and the issues courts will face in implementing it.

“SLAPP,” which stands for Strategic Lawsuits Against Public Participation, is the moniker given to lawsuits brought by individuals or organizations to stop critics from making public statements against them. By filing such a lawsuit, the plaintiff can use the courthouse as a sword to thwart unfavorable criticism by subjecting the vociferous critic to time-consuming and resource-draining litigation for otherwise constitutionally protected speech. In other words, even if the critic has done nothing wrong and made no false statement, they are punished for what they say. In this scenario, it is no comfort that the critic can ultimately prevail in the lawsuit (often several years later) because the damage is already done. As such, anti-SLAPP laws provide critical protections to the news media and individuals to secure swift dismissals before the costly litigation process begins in earnest.

 

While anti-SLAPP laws vary state to state, New Jersey is the sixth state to enact particularly strong protections based on the Uniform Law Commission’s “Uniform Public Expression Protection Act.”

 

New Jersey’s law permits a defendant, within sixty days of service of the lawsuit, to file a motion for expedited relief to dismiss the speech-based cause of action. The court must rule on the motion within sixty days of its filing, during which time the court has the discretion to stay all proceedings between the parties. At the hearing on the motion, the plaintiff is required to prove a prima facie case for its speech-based claim. Alternatively, the defendant can show the plaintiff has either failed to state a claim for which relief may be granted under R. 4:6-2(e), or that there is an absence of any genuine issue of material fact, entitling the defendant to judgment under R. 4:46-2.

To further its deterrent effect, the law entitles a successful defendant to an award of reasonable attorney’s fees and expenses related to the motion. Critically, plaintiffs cannot simply withdraw a speech-based claim to moot a motion for expedited relief and escape the potential fee award: If the claim is voluntarily dismissed without prejudice, the defendant can still proceed with its motion and, if successful, would be entitled to attorney’s fees and expenses. If the voluntary dismissal is with prejudice, the defendant is treated as a successful party on the motion, also entitling it to attorney’s fees and expenses.

While the new anti-SLAPP law is a boon to First Amendment protections, individuals and organizations should be aware of its limitations.

 

In particular, the law carves out three forms of speech to which it applies:

  1. “communication[s] in a legislative, executive, judicial, administrative, or other governmental proceeding,”
  2. “communication[s] on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding[,]”
  3. speech that is “guaranteed by the United States Constitution or the New Jersey Constitution, on a matter of public concern.” While this third category appears at first blush to act as a catch-all, the last clause limits the statute’s applicability only to constitutionally protected speech regarding “a matter of public concern.” Therefore, speech relatign to a matter of private concern does not fall within the law’s protections.

Additionally, issues as to the law’s implementation will need to play out in the courts before the law’s true effect can be gauged. For example, courts will need to wrangle with the quantum of evidence a plaintiff will be required to adduce at a hearing to establish a prima facie case, and particularly in defamation actions where injury to reputation is an essential element of the cause of action, whether the plaintiff will be required to produce witness testimony to make a prima facie showing. A thornier issue is determining whether the challenged speech was or was not “on a matter of public concern.” New Jersey courts have held that issues such as the performance of appointed municipal officials, abuse of students by teachers, or educational policy are all matters of public concern. But as speech-based cases increasingly involve comments made on social media, the issue is often not clear-cut.

For example, does a negative review of a business on a platform such as Yelp or Google involve a matter of public concern? The fact that a case arises from a private commercial transaction does not automatically disqualify it from involving a matter of public concern. But the results have been mixed. Landmark New Jersey cases held that a business’s sale of contaminated drinking water, a bank’s lending practices, and consumer fraud by a lawnmower repair business all constitute matters of public concern. On the other hand, commercially motivated speech by one business against a competitor has been held not to constitute a public concern. These and other issues should become clearer as the new law is tested in the courts.


If you have any questions about New Jersey’s new Anti-SLAPP legislation, please contact the authors, Zachary D. Wellbrock, JH Oliverio, or the Anselmi & Carvelli LLP attorney with whom you normally work.

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