Maine's New Anti-slapp Law:the Unif. Pub. Expressionprotection Act (upepa)

• Citation: Vol. 40 No. 1 Pg. 0010
• Year: 2025
• Pages: 0010

Maine's New Anti-SLAPP Law: the Uniform Public Expression Protection Act (UPEPA) Vol. 40 No. 1 Pg. 10 Maine Bar Journal 2025

SIGMUND D. SCHUTZ AND ALEXANDRA A. HARRIMAN

SIGMUND D. SCHUTZ is a partner at Preti Flaherty, where he practices commercial/environmental litigation and First Amendment/media law. For more than 25 years he has protected and enhanced the news media's right to gather and disseminate information in Maine. He serves on the Board of Directors of the Maine Freedom of Information Coalition and the New England First Amendment Coalition. He can be reached at sschutz@preti.com.

ALEXANDRA HARRIMAN is an associate at Preti Flaherty, where she practices commercial/appellate litigation and First Amendment/media law. She is the coauthor of chapters on Maine law in the Media Law Resource Center's 50-state survey of media libel and privacy law. She can be reached at aharriman@preti.com.

In 1995 Maine enacted a statute (14 M.R.S. § 556) designed to deter "strategic litigation against public participation" (so-called "SLAPP suits"). But the courts have struggled to interpret and consistently apply the law. Not long ago, Judge Levy wrote that the anti-SLAPP statute had "engendered considerable confusion and conflicting interpretations."^[1] Instead of short-circuiting lawsuits intended to punish or silence constitutionally protected petitioning activity, too many anti-SLAPP motions ended up generating little more than delay and legal expense. That should come to an end with Maines recent adoption of the Uniform Public Expression Protection Act (UPEPA), 14 M.R.S. §§ 731-742. UPEPA clarifies procedural aspects of anti-SLAPP practice and expands anti-SLAPP protections beyond the right to petition the government to protect expressive activity more generally.

The new statute brings Maine into the mainstream of anti-SLAPP practice nationwide. With the adoption of UPEPA, Maine joined New Jersey, Oregon (substantially similar), Utah, Hawaii, Kentucky, and Washington.^[2] And the list of UPEPA states is growing, with Minnesota, Pennsylvania, and Ohio adopting their own versions after Maine, and 10 other states introducing bills modeled after UPEPA.^[3]

Maine's version of the statute modifies the text of UPEPA only to conform to Maine statutory conventions. The Legislature's stated intent is for the law to be interpreted substantively the same as UPEPA, and it accepted the Uniform Comments drafted by the National Conference of Commissioners on Uniform State Laws as part of UPEPA.^[4] The statute had bipartisan support, although it became law without the Governor's signature. It took effect on January 1, 2025, and applies to any civil action filed or cause of action asserted in a civil action on or after that date.^[5]

UPEPA changes Maine law in several important ways. First, Section 556 was narrower in scope than UPEPA, covering only the constitutionally protected right to petition the government. Because of that limitation, courts declined to extend the law's protections to, for example, reports to governmental entities^[6]and statements not directed at governmental entities,^[7] even though that kind of speech may be just as important as speech that petitions the government. Recognizing this, UPEPA broadly applies to a party's "[e]xercise of the right of freedom of speech or of the press, the right to assemble petition or the right of association, guaranteed by the United States Constitution or by the Constitution of Maine, on a matter of public concern."^[8] It is not limited to the right to petition.

UPEPA protects journalism. Because the old statute applied only to "the moving party's exercise of the moving party's right of petition," courts in Maine held that 14 M.R.S. § 556 was "not applicable to newspaper articles unless those articles constitute the newspaper petitioning on its own behalf or the party seeking to invoke the anti-SLAPP statute is a party that used the newspaper to broadcast the party's own petitioning activities."^[9] In Gaudette v. Mainely Media, LLC, the Law Court reasoned that where a newspaper is merely documenting current events—including others' exercise of their right to petition—the newspaper is not exercising its own right to petition.^[10] A few years later, the Court doubled down on its ruling in Gaudette, making clear that the protection of the anti-SLAPP statute applied to newspaper publishers or other parties only when they were petitioning on their own behalf.^[11] The net result was that the anti-SLAPP statute provided little protection to news outlets faced with SLAPP litigation, even though SLAPP suits are a tool used to attempt to silence and punish journalists and news outlets. That will now change under UPEPA.

The only apparent possible narrowing in the scope of anti-SLAPP protection under UPEPA is found in the requirement that the right to...