The Uniform Public Expression Protection Act: Proof And Evidence


UPEPA does not allow for a weighing of evidence, but an examination to determine whether it exists … [+] at all.


This is my seventh installment of a series of articles that will explore the Uniform Public Expression Protection Act, or “UPEPA”. I must again give the caveat that while I served as an American Bar Association adviser to the drafting committee of the UPEPA, the comments and viewpoints herein are mine and mine alone, and are not those of either the Uniform Law Commission or the American Bar Association; further, others on the drafting committee might well disagree (perhaps vehemently) on certain points.

In our previous episode, The Uniform Public Expression Protection Act: The Hearing And Ruling, we looked at how § 5 of the UPEPA provides for a hearing on a special motion and § 8 provides for the court’s ruling. We will now examine the proof and evidence to be examined by the court.

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The UPEPA drafting committee spent a substantial amount of time discussing the type of burdens that the parties would be required to bear on a special motion, but ultimately these issues were decided in accordance with the majority rule of Anti-SLAPP states, i.e., essentially treat the special motion as akin to an early motion for summary judgment or FRCP 12(b)(6) motion, and with largely the same (if not identical) burdens of proof. Indeed, within the drafting committee it was common to refer to the special motion as a “early summary judgment motion” or a “12(b)(6) motion to dismiss on steroids”. The result of the drafting committee’s effort was this single paragraph constituting §6:


“In ruling on a motion under Section 3, 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 judgment under [cite to the state’s statute or rule governing summary judgment].”

What the drafting committee was trying to achieve was a result whereby if the movant would win on a motion for summary judgment anyway at the end of the litigation, then UPEPA would allow that movant to win at the start of the litigation and thus avoid the costs, fees, and other consequences of litigation. Section 6 yields that result by the direct engraftment of the summary judgment procedure to the special motion. This solution also allows the courts to efficiently utilize their many decades of rulings on summary judgment motions to decide special motions.

There is of course a glaring difference between hearing a summary judgment at the outset of litigation as opposed to towards its end, which is that in the interim the parties have access to discovery so as to attempt to build their evidentiary cases; this is why § 4(d) permits very narrowly-tailored discovery upon a showing of reasonable necessity. Thus, there is an implicit public policy decision that is baked into § 6 (and also § 4(d)), being that if a party is going to file a cause of action in the area of protected speech and conduct, that party had better have all its evidentiary ducks in a row before that cause of action is filed and not simply “notice plead” a cause of action thinking that maybe some later fishing through discovery might turn up something akin to a viable case.

Let’s now examine some of the particular operative clauses of § 6.

the court shall consider

The use of “shall” means that the court’s consideration of the following things is mandatory, assuming that they have been properly and timely filed, etc., and does not permit a court to pick-and-choose what it wants to consider or not. This clause is also intended to act as a restricting boundary, in that the court’s inquiry should be limited to the following things (and any oral argument of the parties at the hearing, if held in open court) to the exclusion of other things filed in the case. But even here the court must utilize its good common sense in applying these rules.

For example: Plaintiff files a complaint that is a quite vague, but seems to sound in defamation by way of protected speech. Defendant files an Anti-SLAPP motion based on the protected speech. In opposition, the plaintiff files a brief arguing that the complaint in no way alleges a cause of action for defamation, but some other tort. In rebuttal, the defendant submits a copy of the mandatory case filing cover sheet submitted by the plaintiff where one and only box for “case type” is checked, being “defamation”. Although this is not a pleading or a motion, etc., and arguably not “evidence” in the classic summary judgment sense, the court should consider the cover sheet.

the pleadings

The single most important documents for the court to consider will be the pleadings that define what the plaintiff’s cause of action is really all about. Many, if not most, special motions will be resolved solely and exclusively on the pleadings — if the plaintiff has plead a cause of action that complains of protected speech or conduct, the special motion should be granted as to that cause of action without much further ado, unless of course the plaintiff can show some exception to the protection for the speech or conduct that is complained of.

In the vast majority of special motion cases, the special motion will be the first thing that anybody files after the plaintiff’s complaint, and the plaintiff’s complaint will thus be the only pleading to be considered by the court. However, there will of course be many situations where numerous pleadings have been filed prior to the special motion, such as in multi-party litigation and where the allegedly violative cause of action has been plead by cross-complaint, etc. Also, UPEPA does not prevent a movant from filing an answer to the allegedly violative cause of action first, and only thereafter filing a special motion. In such cases, the court is instructed to look at all the pleadings filed by any and all parties, to the extent they are relevant of course, in ruling on the special motion as it may be that in particular cases the court will have to piece together the pleading string to determine exactly what it is that the plaintiff complains.

Particular attention should be paid to Comment 1 to § 6: “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. * * * A party may rely on an opposing party’s pleadings as substantive evidence, consistent with the general rule that an opposing party’s pleadings constitute admissible admissions.” In other words, your own pleadings have no evidentiary value at all, but your opponent’s pleadings carry very substantial evidentiary value as an admission, and vice versa; this is why the movant on a special motion should think twice before filing an answer (other than maybe a “say nothing” general denial), since no good is likely to come from such a filing but might create some opening for the respondent.

the motion, any reply or response to the motion

The court must also look at, somewhat obviously, the special motion, opposition to that motion, and any replies and sur-replies, etc., an including the things that normally adjunct to such motions like requests for judicial notice to get evidence in and motions in limine to keep evidence out.

and any evidence that could be considered in ruling on a motion for summary judgment under [cite to the state’s statute or rule governing summary judgment]

This is where things get complicated. For non-lawyers, and some non-litigator lawyers, one must fundamentally understand that a motion for summary judgment is resolved as a matter of law, where the court does not weigh evidence in terms of credibility or anything else. But, and this is a big “but”, the court will look at the evidence to see whether at least a minimal smattering of evidence is present such that there is a factual issue to be decided by the trier-of-fact (usually a jury), and if there is then at least as to that element summary judgment cannot be granted. Which is to say that a party seeking to avoid summary judgment must provide at least that minimal smattering of evidence as to each and every element of the challenged cause of action. Or, to look at it conversely, the court is looking to see whether there isn’t any minimal smattering of evidence on any element such that the cause of action gets dismissed as a matter of law since one or more elements of the cause of action were not at least minimally proven. Suffice it to say that in every jurisdiction there is an enormous body of law that discusses how much evidence is enough for a party to get past summary judgment, and a survey of such law is far beyond our discussion here. This is exactly why the drafting committee tied the special motion to the summary judgment standard, so that such body of law could be applied to special motions instead of the courts having to start from scratch.

The bottom line is that the respondent has the burden of proving that the respondent has some minimally sufficient evidence for each and every element of the cause of action to make it to the finder of fact. If there is no minimally sufficient evidence for any element of the cause of action, then the cause of action fails as a matter of law. The Respondent cannot get by on mere speculation that such evidence might later turn up in discovery, nor can the Respondent rely upon evidence that is demonstrably incorrect. The Movant can also introduce evidence to demonstrate that the Respondent cannot prove one or more elements of the Respondent’s cause of action.

For example, Tim sues Betty for defamation based on Betty’s statement that Tim is a registered sex offender. Betty filed a special motion based upon the defense that truth is an absolute defense to defamation. Tim attaches to his opposition to the special motion his affidavit in which he swears under penalty of perjury that he is not a registered sex offender. However, Betty introduces a verifiable copy of a criminal judgment that names Tim as a registered sex offender. Despite Tim’s affidavit, which he claims gives rise to a factual issue as to Betty’s defense, Betty will win the special motion since there is no reasonable doubt that Tim is in fact a registered sex offender.

In our next installment, we will examination the section 7 shifting of burdens from party to party in resolution of a special motion. Stay tuned.

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