New Jersey’s newly enacted Uniform Public Expression Protection Act (UPEPA) is a significant legal advancement that provides robust protections for individuals and entities, including healthcare providers, who face lawsuits based on certain types of protected speech. Known as an Anti-SLAPP law (“SLAPP” referring to “strategic lawsuits against public participation,”), the statute is designed to counter and limit suits intended to intimidate or silence individuals’ speech through costly and time-consuming litigation.
Case Study: A Victory for Protected Speech
A Frier Levitt physician-client was recently sued by an individual based on the contents of a letter the doctor wrote to the New Jersey Department of Labor (“DOL”) in response to the DOL’s request for assistance in evaluating a disability claim. Recognizing that the lawsuit was predicated on speech likely protected by NJ’s newly passed UPEPA Frier Levitt’s legal team quickly intervened.
The firm threatened to countersue the Plaintiff unless they withdrew their Complaint with prejudice. Countersuing under this act, if successful, not only results in the payment of litigation expenses and attorneys’ fees, but also dismissal with prejudice of the action filed against the individual or entity for having engaged in protected speech. See N.J.S.A. § 2A:53A-50(a), (b). Further, a defendant who files a countersuit under the statute, can seek a stay of the proceedings against the defendant until the Court has had a chance to consider whether a meritorious Anti-SLAPP counter-filing has been made. See N.J.S.A. § 2A:53A-52.a. Notably, a Court, in “determining whether to stay any proceedings [due to the filing of an Anti-SLAPP counter-filing], . . . shall . . . presume[e] that such a stay shall be granted.” Id. at § -52.a(3) (emphasis supplied).
Given the above, it took Plaintiff less than a week to consider Defendant’s demand before agreeing to dismiss their case with prejudice. The speed with which Plaintiff agreed to dismiss is a testament to the power of this new law, and it’s important providers familiarize themselves with it, as a formidable new form of “defense by offense” that, under certain circumstances, can end lawsuits before they begin.
The Types of Speech Protected by UPEPA
Under NJ’s UPEPA three main categories of speech are protected:
(1) Statements made in governmental proceedings – including communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
(2) Communications about matters under government review – communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or
(3) Constitutionally protected speech on matters of public concern – exercise of the right of freedom of speech or of the press, the right to assembly or petition, or the right of association, guaranteed by the United States Constitution or the New Jersey Constitution, on a matter of public concern.
[N.J.S.A. § 2A:53A-50]
In this case, the physician-client’s communication with the DOL was likely protected because it was made in connection with an administrative proceeding. This would also have been true had the provider made the statement in a court proceeding, as indicated by § 2A:53A-50(1).
Subsection (2) of § 2A:53A-50 is broader still, protecting any communication concerning an “issue under consideration or review” in any governmental proceed. For example, it seems likely that, were a provider to provide a written or oral statement before a legislative or executive committee, such a statement would likely fall within the ambit of UPEPA.
Finally, subsection (3) covers the broadest possible scope of speech, including effectively any speech – or right of association or assembly – concerning “a matter of public concern”. So, in theory, a provider who, for example, alleges a particular entity or individual may bear some responsibility for a public health issue, such as the rising costs of drugs, any entity who may take umbrage with such a statement who sues the provider on this basis, could be countersued for the dismissal of the entity’s suit with prejudice, along with sanctions such as attorneys’ fees and litigation expenses.
Broader Implications for Providers
Few courts have directly addressed the intersection of doctors’ speech and matters of public concern. Several federal district courts, as well as the Third and Ninth Circuits, have held that doctors’ speech may enjoy constitutional (and certain state-statutory) protections if it touches upon core matters of public concern, such as the adequacy of patient care and in particular the ability of a facility to care for its patients.
Healthcare professionals should seek experienced counsel to help determine whether specific statements made by a physician may be protected under state and federal law – an analysis that can be equally important before a potentially actionable or controversial statement is made as it is after the fact, when a provider may be facing a speech-related lawsuit.
How Frier Levitt Can Help
Frier Levitt has highly-experienced defense counsel who has made successful use of UPEPA in defending its clients’ interests. If you or your healthcare entity are the subject of a lawsuit stemming from a statement made – whether written or oral – contact Frier Levitt to explore your options.
