SLAPP Suits and Utah’s UPEPA: What the 2023 Anti-SLAPP Law Does and How to Use It

Anti-SLAPP / UPEPA, Appellate Procedure Reading Time: 12 minutes
People assembled in a park for a political rally

Strategic Lawsuits Against Public Participation — SLAPPs — are a specific category of civil litigation designed not to win, but to silence. The plaintiff does not necessarily expect a judgment. What they expect is that the cost and burden of defending a lawsuit will make the defendant stop speaking, stop publishing, stop criticizing, or stop participating in whatever public activity prompted the suit. The claim may be nominally for defamation, invasion of privacy, tortious interference, or business disparagement — but the real goal is the chilling effect.

Utah recognized this problem and in 2023 enacted the Uniform Public Expression Protection Act (UPEPA), codified at Utah Code § 78B-25. The new law replaced Utah’s prior anti-SLAPP statute — rated D- by the Institute for Free Speech for being nearly ineffective — with a statute now rated A+. It is one of the most significant expansions of free speech protection in Utah civil litigation in years.

This post explains what UPEPA covers, how the motion to dismiss process works, and why the appellate dimension of UPEPA is one of its most powerful features.

What Is a SLAPP Suit?

The term SLAPP was coined by University of Denver professors Penelope Canan and George Pring in the late 1980s to describe a pattern they observed: plaintiffs with resources using civil litigation against individuals or organizations engaged in constitutionally protected public activity, not to vindicate legitimate legal rights, but to impose litigation costs that deter future speech.

Classic SLAPP scenarios:

  • A developer sues neighbors who appeared at a zoning hearing to oppose a project
  • A corporation sues a former employee who posted a negative review of the company online
  • A public official sues a citizen journalist for reporting on government conduct
  • A business sues a consumer advocacy organization that published criticism of its products
  • A landlord sues tenants who organized and petitioned the city for housing code enforcement

In each case, the lawsuit arrives after protected speech or petition activity — and the filing of the lawsuit is itself the injury, regardless of its ultimate outcome.

Utah’s UPEPA: The New Framework

Utah’s prior anti-SLAPP law was ineffective in practice — courts were uncertain about its scope, it covered only a narrow range of protected activity, and it lacked the procedural teeth to make early dismissal realistic. The 2023 UPEPA, which took effect on May 3, 2023 and applies only to actions filed on or after that date, is a fundamentally different statute.

What UPEPA covers. Under Utah Code § 78B-25-102(2), UPEPA applies to a cause of action asserted against a person based on:

  • A communication in a legislative, executive, judicial, administrative, or other governmental proceeding
  • A communication on an issue under consideration or review in a governmental proceeding
  • The exercise of the right of speech, press, assembly, petition, or association under the federal or state constitution, on a matter of public concern

This is broad coverage. Testimony at a city council meeting, a social media post criticizing a public official, a petition circulated by a neighborhood group, a letter to the editor, a review of a business practice, a comment at a public hearing — all are potentially within UPEPA’s scope if the underlying lawsuit targets that activity.

What UPEPA does not cover. The statute expressly excludes: suits against government employees or entities acting in their official capacity, suits brought by the government to enforce public health or safety measures, and — most practically significant — suits against persons primarily engaged in selling goods or services where the communication at issue relates to that business. This last exclusion is narrower than it sounds. The “goods or services” carve-out does not apply to “the creation, dissemination, exhibition, or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic, or artistic work” — meaning journalists, publishers, filmmakers, and artists remain protected even when they are commercial actors.

The uniformity provision. Section 78B-25-112 instructs that in applying UPEPA, “consideration shall be given to the need to promote uniformity of the law with respect to the uniform law’s subject matter among states that enact the uniform law.” This is meaningful — but limited. It refers specifically to other states that have enacted UPEPA itself (currently Utah, Hawaii, Kentucky, Washington, and a small number of others). It does not import California’s anti-SLAPP case law or the anti-SLAPP jurisprudence of non-UPEPA states into Utah. Practitioners relying on California or Texas anti-SLAPP decisions as persuasive authority in a Utah UPEPA case should be cautious about how much weight those decisions actually carry.

The Special Motion for Expedited Relief: How the Process Works

The procedural heart of UPEPA is the special motion for expedited relief to dismiss under Utah Code § 78B-25-103. This is a specific motion, distinct from an ordinary motion to dismiss under URCP Rule 12 or a motion for summary judgment under Rule 56, with its own rules governing timing, burden allocation, and consequences.

The 60-day filing deadline. The motion must be filed within 60 days of the day on which the defendant was served with the complaint. The statute provides that a party may file after this deadline for “good cause” — but practitioners should treat 60 days as a hard deadline and move promptly. Filing late without a compelling reason risks losing UPEPA’s procedural advantages entirely.

The automatic discovery stay. On the filing of a UPEPA motion, all proceedings between the moving party and the responding party — including all discovery — are automatically stayed. The stay remains in effect until the court rules on the motion and the time for appeal has expired. This is one of UPEPA’s most powerful features: it prevents the plaintiff from using discovery as a litigation weapon while the threshold dismissal question is pending. The court may allow limited discovery during the stay only if a party demonstrates that specific information is necessary to establish whether a burden under the statute has been satisfied and the information is not reasonably available without discovery.

The 60-day hearing requirement. The court must hear the UPEPA motion no later than 60 days after it is filed, unless the court orders a later hearing for good cause or to allow limited discovery. This compressed timeline serves the statute’s purpose: fast resolution of the threshold question of whether the lawsuit is a SLAPP that should be dismissed.

The Burden-Shifting Framework

The most analytically important aspect of UPEPA is its burden structure, which operates in a specific sequence under Utah Code § 78B-25-107:

Step 1 — The moving party establishes applicability. The defendant must first show that UPEPA applies to the claim at issue — that the cause of action is based on one of the categories of protected activity identified in § 78B-25-102(2). If the defendant makes this showing and the plaintiff fails to establish otherwise, the burden shifts.

Step 2 — Burden shifts to the plaintiff. Once applicability is established, the court will dismiss the claim with prejudice unless the plaintiff either:

(a) Establishes a prima facie case as to each essential element of the claim — meaning the plaintiff produces sufficient evidence that, if believed, would support each element, or

(b) Establishes that the defendant has failed to state a claim upon which relief can be granted (the Rule 12(b)(6) standard) — in which case the plaintiff’s own burden is negated by the legal insufficiency of the defendant’s position

The summary judgment overlay. The court may also dismiss if the defendant shows there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law — essentially the Rule 56 summary judgment standard applied within the UPEPA framework. Courts consider the pleadings, the motion, any response or reply, and evidence that could be considered on a Rule 56 motion.

Voluntary dismissal. A plaintiff who voluntarily dismisses with prejudice a cause of action that is the subject of a pending UPEPA motion is treated as having lost the motion — which means the defendant may still pursue attorney’s fees and costs.

Attorney’s Fees: The Teeth of the Statute

If the UPEPA motion is granted, the court shall award the moving party costs and reasonable attorney’s fees. This fee-shifting provision is what separates effective anti-SLAPP statutes from ineffective ones. In states where defendants can obtain fees after prevailing on an anti-SLAPP motion, SLAPP plaintiffs face real financial risk from filing meritless suits — a deterrent that the prospect of losing on the merits alone does not provide.

The fee award is mandatory on a successful motion, not discretionary. This means that a plaintiff who files a SLAPP suit targeting protected activity, loses the UPEPA motion, and is not entitled to a reversal on appeal will owe the defendant’s reasonable litigation costs from the outset of the case.

The Interlocutory Appeal Right: UPEPA’s Most Important Appellate Feature

If the court denies the UPEPA motion, the moving party has an immediate right to appeal — without waiting for the case to be resolved on the merits. This interlocutory appeal right is exercised under URAP Rule 4, and the notice of appeal must be filed within 30 days of the order denying the motion.

The significance of this cannot be overstated. In ordinary Utah civil appeals, a party must wait until the case reaches final judgment before appealing most interlocutory rulings. A wrongly denied UPEPA motion — if not immediately appealable — would leave the defendant in exactly the position the statute was designed to prevent: forced to litigate an expensive, burdensome lawsuit despite having a statutory right to early dismissal. The interlocutory appeal right prevents that outcome. A defendant who believes the trial court incorrectly denied the UPEPA motion can have that ruling reviewed immediately, while the underlying case remains stayed.

When an appeal is filed from an order ruling on a UPEPA motion, all proceedings in the action — including proceedings involving other parties — are stayed until the appeal is resolved.

For more on the mechanics of interlocutory appeals in Utah, including how the stay operates and the standard of review, see Lotus’s practice area page.

No Utah Appellate Case Law Yet — And What That Means

As of early 2025, Utah’s appellate courts have not yet interpreted UPEPA. The statute is new, the case law is developing, and many questions remain unresolved: how courts will define “matter of public concern,” how they will apply the prima facie burden when the plaintiff has had no discovery, how broadly the commercial exclusion will be read, and how the uniformity provision will operate in practice.

This legal uncertainty cuts both ways. For defendants, the absence of limiting precedent means arguments about UPEPA’s scope are not yet foreclosed. For plaintiffs whose claims are challenged under UPEPA, the same uncertainty means the dismissal risk is real and should not be minimized.

The uniformity provision — § 78B-25-112 — will eventually allow Utah courts to look to Hawaii, Kentucky, Washington, and other true UPEPA states for guidance. It does not authorize wholesale import of California or Texas anti-SLAPP doctrine, which developed under different statutory frameworks.

Preserving UPEPA Issues for Appeal

Whether you are the defendant seeking dismissal or the plaintiff defending the claim, the appellate dimensions of UPEPA require careful attention at the trial court level:

For defendants: The UPEPA motion must be brought within 60 days of service. The burden framework must be navigated correctly — establishing applicability before the burden shifts to the plaintiff. Every argument for dismissal should be made explicitly in the motion, because the correctness standard on the legal questions embedded in the UPEPA ruling means the appellate court will evaluate them de novo. The interlocutory appeal right must be exercised within 30 days of a denial order — see Lotus’s URAP filing deadlines reference for the full timeline.

For plaintiffs: If the UPEPA motion is granted below and you believe it was wrongly decided, the 30-day appeal clock runs from the dismissal order. The standard of review on whether UPEPA applies at all — a question of statutory interpretation — is correctness. The plaintiff’s burden (prima facie case on each element) is the place where the record-building at the trial court level matters most: if the record does not contain evidence sufficient to survive the UPEPA motion, the appellate court reviewing a grant of the motion will apply the same standard the trial court used.

KEY RULE

Utah Code § 78B-25 — The Uniform Public Expression Protection Act (Effective May 3, 2023)

UPEPA applies to civil actions targeting communications in governmental proceedings, communications on issues under governmental consideration, and the exercise of speech, press, assembly, petition, or association rights on a matter of public concern. The defendant must file a special motion for expedited relief within 60 days of service. Filing automatically stays all discovery. The court must hear the motion within 60 days. The burden shifts to the plaintiff to establish a prima facie case on each element once the defendant shows applicability. If the motion is granted, attorney’s fees and costs are mandatory. If the motion is denied, the defendant has an immediate right to appeal within 30 days — with all proceedings stayed pending that appeal.

If You Are Facing a SLAPP Suit — or Defending Against an Anti-SLAPP Motion

Meaningful appellate representation goes beyond filing a brief. It begins with understanding the trial record, identifying every issue worth pursuing, and knowing how Utah’s appellate courts actually decide cases. Lotus Appellate Law works with Utah litigants and trial counsel at the trial stage, on direct appeal, and through post-conviction proceedings — at the Utah Court of Appeals, the Utah Supreme Court, and beyond. If you have a question about your case, the next step is a conversation — schedule a call with Lotus Appellate Law.

Lotus Appellate Law — Contact us for a case evaluation

Meaningful appellate representation goes beyond filing a brief. It begins with understanding the trial record, identifying every issue worth pursuing, and knowing how Utah’s appellate courts actually decide cases. Lotus Appellate Law works with Utah litigants and trial counsel at the trial stage, on direct appeal, and through post-conviction proceedings — at the Utah Court of Appeals, the Utah Supreme Court, and beyond.

The next step is a conversation — schedule a call with Lotus Appellate Law.

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