The Land of 10,0000 Lakes has adopted the Uniform Protection Act (UPEPA) as its Anti-SLAPP law, effective May 25, 2024, which was the day after it was signed into law by Governor Tim Walz. The enactment of the UPEPA gives Minnesota a state-of-the-art Anti-SLAPP law, which, as the name suggests, operates to protect free speech and related rights by causing the early dismissal of abusive litigation meant to hinder or retaliate against the speaker for the lawful exercise of those rights.
The Minnesota UPEPA is mostly a clean adoption in the sense that there was not too much tinkering with the uniform legislation by including so-called non-uniform provisions, which are provisions not found in the uniform act. However, Minnesota did include a number of non-uniform exclusions from the scope of that act, including civil claims against criminal perpetrators, quieting title to property, seeking recovery for bodily injury and wrongful death, insurance claims, certain sexual harassment claims, certain civil service claims, consumer protection claims, and claims brought under federal law.
I’ve previously written about states that expand the list of exclusions from the UPEPA protection by way of non-uniform provisions. They don’t really bother me because I think that it is good that each state operate as, essentially, a test tube to test what works or doesn’t work in practice. Anti-SLAPP law should not be static, and the law will not advance unless some take chances with their ideas. Thus, so long as a state like Minnesota keeps these non-uniform provisions within the legislative chassis designed to hold them (as we intended while drafting the UPEPA), and doesn’t tinker with the other operative provisions, it’s all good with me. Viva la difference!
Prior to the UPEPA, Minnesota had a pretty good Anti-SLAPP law. Too good in fact, as the Minnesota Supreme Court invalidated that law for violating the right to jury trial as I explained in my article, Minnesota Court Of Appeals Boots Clear And Convincing Anti-SLAPP Burden Of Proof (Jan. 13, 2017). This ruling effectively caused Minnesota to go from having a good Anti-SLAPP law to having no Anti-SLAPP law overnight. Almost the identical thing occurred in Washington state, leading it to be the first adopter of UPEPA.
Here we see the UPEPA doing what it was created to do: Provide states such as Minnesota that didn’t have an Anti-SLAPP Act, or had one which was problematic, with a ready out-of-the-box solution so that they did not have to reinvent the wheel. A solid majority of U.S. states now have Anti-SLAPP laws, and about a quarter of those have adopted the UPEPA. So far, as I expect that within the next 10 years, the UPEPA will have risen to at least half of Anti-SLAPP law adoptions.
While those in states with strong Anti-SLAPP laws may quibble about whether the UPEPA is better or worse than their existing state statutes, the hard truth is that the UPEPA is indeed better because it offers the tremendous benefit of uniformity of interpretation. This means that the courts of a state that have not considered a particular issue may look to the court decisions of other states for guidance in resolving that issue because the statutory text will likely be exactly the same. States with their own homegrown Anti-SLAPP statutes with laws different than every other state can gain no such benefit.
Anyway, the UPEPA is off to a strong start within the 2024 legislative session, with the UPEPA now being up for consideration by the legislatures of several other states as well. Notably, the UPEPA has benefitted from strong bipartisan support, which seems to be particularly rare these days. Expect more UPEPA adoption news soon.
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