May 13, 2024 Article

Maine Becomes Seventh State to Enact Uniform Public Expression Protection Act (UPEPA)

Maine is now the latest state to enact the Uniform Public Expression Protection Act (UPEPA)—following New Jersey, Oregon (substantially similar), Utah, Hawaii, Kentucky, and Washington. UPEPA aims to provide a clear framework for the efficient review and dismissal of SLAPPs. Maine adopted an anti-SLAPP statute in 1995 (14 M.R.S. § 556), but that statute was narrow—it was limited to the right to petition—and the procedural aspects of anti-SLAPP practice in Maine have been subject to bewildering and frequent reinterpretation by Maine’s highest court.

UPEPA became law in Maine without the Governor’s signature and takes effect on January 1, 2025. The text of UPEPA was changed to conform to the Maine statutory conventions, but the changes are technical in nature and the Legislature’s stated intent is for the law to be interpreted substantively the same as UPEPA.

The new law, 14 M.R.S. §§ 731-742, will greatly expand the scope of the anti-SLAPP protection in Maine, including—for the first time—to news outlets. Under prior law, the anti-SLAPP statute applied only to “the moving party’s exercise of the moving party’s right of petition.” As a result, “Maine’s anti–SLAPP statute [was] not applicable to newspaper articles unless those articles constitute[d] the newspaper petitioning on its own behalf or the party seeking to invoke the anti–SLAPP statute [was] a party that used the newspaper to broadcast the party’s own petitioning activities." In Gaudette v. Mainely Media, LLC, Maine’s highest 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. A few years later, the Court doubled down on its ruling in Gaudette, making clear that the protection of the anti-SLAPP statute applies to newspaper publishers or other parties only when they are petitioning on their own behalf. The net result is that the anti-SLAPP statute provided no protection to news outlets faced with SLAPP litigation.

The enactment of UPEPA received bipartisan support.

UPEPA is a big improvement over prior Maine law. It 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." 

The new statute is helpful in other ways too. Under prior Maine law, the Court was authorized to award attorney’s fees, but was not required to do so (“the court may award the moving party costs and reasonable attorney’s fees”). Under UPEPA, the award of attorney’s fees is mandatory in favor of the prevailing anti-SLAPP movant (“the court shall award court costs, attorney’s fees and reasonable litigation expenses related to the motion”).

The only apparent potential narrowing in the scope of anti-SLAPP protection in Maine relates to the requirement in UPEPA that the right of petition must involve a matter of “public concern." Under prior Maine law, the anti-SLAPP statute protected the right to petition regardless of whether the matter was of public concern.     

UPEPA is a welcome and a powerful tool to deter and defeat meritless defamation, privacy, and other lawsuits chilling the exercise of First Amendment rights in Maine.