Support HB 95: Stop SLAPP Suits in Pennsylvania!

Support HB 95: Stop SLAPP Suits in Pennsylvania!

Chief Sponsor, State Rep. Russ Diamond (Home Page)

Saturday, January 23, 2021

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States' Anti-SLAPP Laws Compared

As of January 2019, 28 states have anti-SLAPP statutes of varying effectiveness: Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Tennessee, Utah, Vermont. In addition there are anti-SLAPP statutes in the District of Columbia and Guam (source).

The definition of a "strong" anti-SLAP is that is protects speech about any matter of public concern in any forum. A number of anti-SLAPP laws in are so narrow as to be ineffective. For example, Pennsylvania passed Act 138 in 2000. It is a rated ("D") as an anti-SLAPP law because it only protects speech about environmental issues and only protects speech to the government (here and here).

The Grade "A" locations for strong anti-SLAPP laws are:

Details of States' Anti-SLAPP Laws


Constitutionality of Anti-SLAPP Statutes

Two (2) state supreme courts have overturned their states' anti-SLAPP laws. In 2015, the Washington State Supreme Court held that Washington state's anti-SLAPP law violated Plaintiffs' right of trial by jury under Article 1 Section 21 of the Washington Constitution ("the right of trial by jury shall remain inviolate"). Similarly, in 2017, the Minnesota Supreme Court ruled the same way for the same reason. See Article 1 Section 4 of the Minnesota Constitution ("the right of trial by jury shall remain inviolate"). These two State Supreme Court decisions are distinguisable from the legal landscape in Pennsylvania and pose no impediment to House Bill 95 (Free Speech Protection Act) becoming law in PA.

The Pennsylvania Consitution differs in a subtle but important way from the Washington and Minnesota Constitutions on the issue of trial by jury.  See Article 1 Sec. 6 of the PA Constitutions: "Trial by jury shall be as heretofore, and the right thereof remain inviolate." The Pennsylvania Supreme Court has interpreted the word "heretofore" as meaning only up until the enactment of the state Constitution:

  • Wertz v. Chapman Township, 559 Pa. 630 (1999). 741 A.2d 1272 ("The article and section preserving the right of a trial by jury has appeared in each version of Pennsylvania Constitutions. In construing this provision, this court's case law makes clear that our Constitution preserves the right to a trial by jury only in those cases where it existed for the particular cause of action at the time our Constitution was adopted").
  • Mishoe v. Erie Insurance Company, 824 A.2d 1153 (2003) ("Accordingly, the very factors that led us to conclude that there was no right to a jury trial in Wertz are also present in this case").

Also see:

"Because this Court's rulemaking authority extends only to procedural law, the threshold inquiry in determining whether a particular statute violates Article V, Section 10(c) is whether the statute is procedural or substantive in nature. Commonwealth v. Morris, 771 A.2d at 737. The limitation placed on the legislature's power by Article V, Section 10(c) does not affect its ability to address the substantive law in a particular area. Id. The attempt to devise a universal principle for determining whether a provision is inherently procedural or substantive in nature, however, has met with little success in the history of our jurisprudence. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147, 150 (1981). As a general rule, substantive law is that part of the law which creates, defines and regulates rights, while procedural laws are those that address methods by which rights are enforced. Morris, 771 A.2d at 738 (citing Morabito's Auto Sales v. Commonwealth, Department of Transportation, 552 Pa. 291, 715 A.2d 384, 386 (1998))."

- Payne v. Commonwealth Dept. of Corrections, 871 A. 2d 795 - Pa: Supreme Court 2005.