How does Utah's new anti-SLAPP law protect public speech? Mackey v. Krause Explained

The Utah Supreme Court’s decision in Mackey v. Krause provides the first comprehensive interpretation of Utah’s Uniform Public Expression Protection Act (UPEPA), the state’s new anti-SLAPP statute that replaced the Citizen Participation in Government Act in 2023.

Background and Facts

Stuart Mackey, a military instructor at Utah Military Academy, sued parent Jason Krause after Krause publicly complained about Mackey’s treatment of students, including Krause’s son. Following a classroom incident where Mackey reprimanded Cadet Krause, the parent initiated what Mackey characterized as a “smear campaign.” Krause spoke at a school board meeting alleging inappropriate physical contact between Mackey and students, leading to Mackey’s termination and investigations by police and DCFS—both of which were later closed without findings of wrongdoing.

Key Legal Issues

The central issues included whether UPEPA applied to Mackey’s claims for defamation, intentional infliction of emotional distress, abuse of process, and tortious interference. The court also addressed the proper standard for evaluating facts under UPEPA and the burden of proving prima facie cases for each claim element.

Court’s Analysis and Holding

The court held that UPEPA applies when claims are based on protected speech addressing matters of public concern. Adopting the U.S. Supreme Court’s definition from Snyder v. Phelps, the court found that a parent’s concerns about teacher misconduct constitute matters of community concern. However, the court clarified that plaintiffs must establish prima facie cases on all essential elements, including demonstrating that allegedly defamatory statements are not protected by privilege when privilege is raised as a defense.

The court dismissed Mackey’s IIED and abuse of process claims, finding insufficient evidence of “outrageous conduct” and “willful acts” respectively. The defamation and tortious interference claims were remanded for further consideration of the privilege issue.

Practice Implications

This decision establishes critical precedent for Utah’s anti-SLAPP practice. Courts must view facts favorably to non-moving parties, consistent with summary judgment standards. Crucially, when privilege defenses are raised in UPEPA motions, plaintiffs bear the burden of presenting prima facie evidence that the challenged statements are not privileged. The decision also confirms that UPEPA permits early limited discovery when parties demonstrate specific information is necessary to meet their burdens.