00:00 - The following program is sponsored in part by customers

00:04 - bank.

00:14 - We're joined today by Paula Newton Burke.

00:16 - She's senior

00:17 - supervising attorney with the Reporters Committee for freedom of the press.

00:20 - In 2024, governor Josh Pearson, legislation to provide protection against.

00:24 - SLAPP suits for those that are not familiar can explain what our SLAPP suits.

00:28 - Yes, this acronym Strategic Litigation

00:31 - against Public Participation SLAPP sometimes sounds really confusing.

00:36 - And people say, wait, is it, you know, are the lawyers slapping each other?

00:39 - What's happening here?

00:40 - But it's an acronym, and it's a kind of law that, many states

00:45 - across the country have been adopting to try to help provide First Amendment

00:50 - protections for folks who get sued after they have,

00:54 - engaged in protected First Amendment activity.

00:58 - How does the 2024 bill differ from prior law?

01:01 - What specific speech is protected?

01:03 - So in Pennsylvania, up until 2024, our anti-SLAPP law

01:08 - only covered a very narrow category, and that was environmental lawsuits.

01:12 - And so a broad coalition of organizations came together, including the ACLU of

01:18 - Pennsylvania, Americans for prosperity, the Pennsylvania News Media Association.

01:24 - And they all said, look, we we support free speech,

01:27 - and we want to make sure that people who are speaking out

01:30 - on matters of public concern, that they're protected and they're not,

01:34 - you know, dragged through many years of, litigation.

01:37 - And so this kind of bill strengthening and expanding Pennsylvania's

01:41 - anti-SLAPP has been something that was years in the making.

01:45 - So the Senate, had versions of it.

01:48 - The House had versions.

01:49 - And literally for years and years, advocates were pushing.

01:52 - And finally it got across the finish line in 2024.

01:56 - So this version is much stronger and broader than the prior version.

02:00 - Pennsylvania's anti-SLAPP.

02:03 - How would you define protected public expression?

02:05 - So for the new bill, the which is, called the Pennsylvania.

02:10 - Uniform Public Expression Protection Act, I had to write it down

02:15 - because it's another challenging acronym, you Peppa.

02:18 - It follows the same standard that the Uniform Law Commission

02:22 - has promoted across the country, and public expression is really

02:26 - what we think about a citizen going to a zoning hearing board

02:30 - or going to their state representative or something like that,

02:34 - where they're asking the government for help.

02:36 - And as a result of that, expression

02:40 - or that approach to the government, they get sued.

02:43 - And so some of the classic types of SLAPP, suits

02:47 - that are out there are, like I said, a zoning hearing board issue.

02:51 - And years ago, when the Pennsylvania Senate had testimony on this,

02:55 - one of the groups

02:58 - that testified was a homeowners association in Philadelphia,

03:02 - and folks there had been asking for relief and they got sued.

03:06 - And so if you go in and ask for relief from the government,

03:09 - that's a protected First Amendment activity, petitioning the government

03:13 - for redress, you shouldn't be dragged into court for years and years.

03:17 - So the you Pepper or the anti-SLAPP law here in

03:20 - Pennsylvania is meant to provide a quick out mechanism

03:25 - so that somebody who's been sued can say, wait, court, we have a problem here.

03:29 - This is a matter of public concern, and I am being sued

03:32 - for exercising my ability to to talk about this matter of public concern.

03:37 - So it's generally, something that applies to a wide swath of people.

03:42 - And, you know, isn't just

03:45 - a particular issue that is one person's pet project.

03:49 - So there is a there is a specific definition

03:52 - that is part of our law and other laws throughout the country

03:55 - about a matter of public concern.

03:57 - How is the distinction drawn between protected speech versus

04:00 - something that would be considered defamatory or an invasion of privacy?

04:05 - It's a great question,

04:06 - and some of the courts here in

04:07 - Pennsylvania are beginning to wrestle with these issues.

04:10 - If if the speech

04:13 - is truly on a matter of public concern, then and a plaintiff

04:18 - or the person who files a lawsuit says, you defame me.

04:22 - But the court says, wait a minute,

04:23 - this is a this is a matter of public concern.

04:25 - Your defamation case should not go forward.

04:28 - This is really, an attempt to silence or shut down that speech.

04:33 - The court can throw the case out, and on top of it,

04:37 - it can award attorneys fees to the defendants attorney

04:41 - who has to try to uphold their clients First.

04:44 - Amendment rights and their right to speak on matters of public concern.

04:47 - So, unlike our last version, this has some real teeth to it.

04:52 - And hopefully we will see powerful actors thinking twice

04:58 - before they filed suit against, you know, a mom and pop who are speaking out

05:04 - their zoning hearing board or a newspaper that's running an editorial.

05:08 - These kinds of things are classic SLAPP examples.

05:12 - And now in Pennsylvania, like many other states, we have the ability to slap back

05:17 - for those of us that are not lawyers.

05:19 - Can you explain what this law does?

05:21 - If the plaintiff thinks they have a valid case

05:23 - and they want to enter into discovery, is that automatic?

05:26 - So right now we're in a little bit of a holding period,

05:28 - because although the law was passed in 2004 and signed by the governor,

05:34 - making it effective, part of what had to happen

05:39 - after that was the Pennsylvania Supreme Court had to adopt rules.

05:43 - This is a brand new mechanism in Pennsylvania.

05:46 - We haven't had it in this way before.

05:48 - So there aren't rules yet.

05:51 - Governing how this new law works.

05:54 - However, we have seen some cases where lawyers are filing motions.

05:59 - And hopefully once the Supreme Court,

06:04 - finally passes the rules that will help lawyers and litigants

06:08 - across the Commonwealth figure it out, there will be a process

06:12 - where they kind of time out, the litigation to say,

06:16 - before we get into discovery, before we do all that stuff, let's look at

06:20 - whether this special protection applies and if so, the litigation should stop.

06:26 - And and then the inquiry is does the defense get attorney's fees.

06:30 - So it's a it's meant to kind of short circuit the process.

06:35 - You'd mentioned that other states have similar legislation.

06:37 - Can you just talk briefly

06:38 - that maybe if there variations among how they approach this issue,

06:42 - and are there lessons to be learned from what has happened elsewhere?

06:45 - I think the lessons to be learned, are that more

06:48 - and more states have begun adopting this uniform law.

06:52 - And what uniform law means is essentially, there's a group that says, hey,

06:57 - we should have consistency across the country with how we write our laws.

07:02 - Here in Pennsylvania, our law is a little bit different

07:04 - because we have to take into account the Pennsylvania Constitution.

07:08 - But the lessons learned from these

07:10 - other states are it's made a tremendous difference for courts.

07:14 - They don't have to be overseeing time consuming and expensive litigation

07:19 - if the litigation shouldn't have been brought in the first place.

07:23 - So we can see from some of these other states, Texas is an example,

07:27 - that's had a really successful anti-SLAPP,

07:30 - that it really does help with judicial economy and saving money.

07:34 - So for for people who are worried about overburdened,

07:38 - court systems, this is a way to really

07:42 - narrow

07:43 - down the amount of work that our judges have to be doing.

07:46 - And for the people who are swept into these lawsuits

07:49 - for engaging in and, speech on matters of public concern,

07:54 - it can save them literally tens of thousands of dollars.

07:58 - So it's it's very,

07:59 - it's a great step forward that we've taken here in Pennsylvania.

08:03 - And, you know, advocates are really looking forward to seeing

08:07 - the new rules that the Pennsylvania Supreme Court puts forth for states

08:10 - that have been a step ahead of us and have already had

08:13 - anti-SLAPP legislation enacted,

08:14 - has there been a marked reduction in the number of frivolous lawsuits filed?

08:18 - I think we're still seeing scholarship come out on that issue.

08:22 - But anecdotally, yes, because

08:25 - powerful entities or persons who have access to money

08:30 - might think twice if they know that that on the other side of that lawsuit,

08:35 - there's a way to not only short circuit

08:37 - the litigation, but also assess penalties against them.

08:40 - So there have been some notable examples across the country,

08:44 - and I think that has made people who previously

08:47 - would be eager to file a lawsuit maybe think twice.

08:50 - And hopefully we see that here in Pennsylvania

08:52 - as well, that frivolous lawsuits kind of diminish.

08:57 - Former state senator Larry Farnese originally approached this issue in 2013,

09:02 - and he had been attempting for a number of years.

09:04 - Why is it taken over a decade

09:06 - for this legislation to move, and perhaps who was posing the biggest opposition?

09:10 - I think it's complicated.

09:12 - And, you know, when you talk about, free speech and, and people who want to,

09:18 - vindicate themselves in court, of course, there's lawyers who are involved.

09:23 - Many different aspects of the bar would have input.

09:26 - And perhaps plaintiffs sides lawyers

09:29 - didn't particularly like various versions of this.

09:32 - So it has taken a tremendous amount of work and,

09:36 - you know, team effort to get this, law into place.

09:40 - And I think some of the the tweaks that were made from

09:44 - 2014 on really did satisfy people who had concerns.

09:48 - So this was a win, and really, it wouldn't have happened without the.

09:52 - Speaking Freely coalition of the groups I mentioned earlier.

09:56 - And Ballard's bar in Philadelphia

09:58 - has been just a tremendous driver with their attorneys there.

10:02 - You had mentioned, this has been signed by the governor in 2024.

10:06 - However, the Supreme Court is still

10:08 - the state supreme court is still considering the procedural efforts.

10:11 - What happens next within the Supreme Court?

10:13 - So the Supreme Court has committees, and each committee is staffed

10:17 - by attorneys who work for the Supreme Court of Pennsylvania.

10:21 - And then there are volunteer lawyers who help noodle through

10:24 - what should a new role look like, or how should we amend a rule?

10:29 - And in this case, the Civil Procedure Rules Committee of the Pennsylvania.

10:33 - Supreme Court has put forward a proposal, and then they seek comments

10:38 - so different groups can write in and say, hey, great idea.

10:41 - Or, hey, we have some suggestions.

10:44 - After the Supreme Court Procedural Rules Committee takes those, suggestions

10:49 - into consideration, then the justices will look at it

10:53 - and hopefully, they can turn around a finished product

10:56 - and promulgate the new rule quickly so that people throughout the Commonwealth

11:00 - have some more consistency about how this new law is playing out.

11:05 - What timeline do you have any sense of how long it will take

11:08 - the judiciary to to come through and determine the procedural rules?

11:12 - There's really no deadline

11:13 - for the Supreme Court to make its decisions, but given the fact

11:17 - that this has been pending since 2024, and we know that the Supreme Court

11:22 - has received inquiries and letters, and there have been

11:26 - briefs written out to the Superior Court urging action,

11:30 - because it is resulting in some confusion among our 67,

11:34 - courts of Common Pleas about how how should this new law be put into place?

11:39 - So, we're hopeful that it will be fairly soon after the Supreme Court

11:44 - is able to digest the the, content.

11:48 - What procedures or protections are currently on hold

11:50 - until the Supreme Court determines how the procedural rules will move forward?

11:54 - It's a great question.

11:55 - You know, we've seen there was a case out of Delaware County,

11:59 - Court of Common Pleas, there's been one in Lancaster.

12:05 - There's been a middle district case, a Western district case.

12:08 - Those are the federal courts.

12:10 - But interpreting state law and kind of all the approaches have been different.

12:15 - And that's part of the reason

12:16 - why we need this standardized rule from the Supreme Court.

12:20 - Because right now it's kind of playing out in different ways.

12:23 - And lawyers are citing to the U.

12:25 - Pepa and saying this gives my clients protections,

12:29 - but they don't have an actual rule of civil procedure to to point to.

12:34 - So that's part of the, urgency

12:37 - that we're hoping the Supreme Court can move forward rather quickly.

12:41 - Can you talk a little bit more about the timing and synchronization

12:44 - of what currently happens if if someone files a, an anti-SLAPP suit

12:50 - and then there's a challenge of the,

12:51 - the legality or the appropriateness of that case?

12:55 - Yeah. I mean, it's it should be much shorter.

12:57 - So the case I mentioned out of Delaware.

12:59 - County, it really did short circuit the process.

13:03 - I think it was in a matter of months that the case was resolved, and the judge

13:07 - decided SLAPP the anti-SLAPP law applies and the case should be finished. Now.

13:12 - An appeal was taken to Pennsylvania's Superior Court on that.

13:15 - But it it makes the time that the parties are involved much, much shorter.

13:21 - So we're talking about months rather than years of litigation.

13:25 - If a lawsuit is determined to be frivolous, what penalties are prescribed?

13:30 - So if, if, let's say, a developer

13:33 - files a lawsuit against citizen A citizens group who has been complaining

13:37 - to their township or their borough and says, we need you to take a look at this.

13:42 - The company sues the citizens group

13:45 - that citizens group, if they have to go out and get lawyers,

13:48 - and they win, they can then recover those attorney's fees.

13:52 - So it's a way of putting more power back in the hands

13:57 - of the defendant, who has been subject to the frivolous litigation.

14:01 - Why was the recovery of attorney's fees important to include in this legislation?

14:05 - This is a this is a big improvement.

14:08 - And it's something that, again, we were talking about other states

14:11 - across the country.

14:12 - We have seen, a deterrent effect from other states

14:16 - that have attorney's fees when there's a frivolous lawsuit and then the party

14:21 - who brings that frivolous lawsuit, not only has to pay their own attorneys,

14:25 - but the attorney's fees of, the successful defendant.

14:29 - It's it's a big win.

14:30 - So it's been, something we've seen in other jurisdictions that's very helpful.

14:36 - On the other side of the issue, what happens if the defendant

14:39 - invokes, the laws immunity frivolously?

14:42 - So if the defendant invokes anti-SLAPP

14:46 - and is unsuccessful, the case will proceed forward.

14:50 - And again, we're waiting to see those rules from the Supreme Court,

14:54 - if they will say anything about this very scenario.

14:58 - So it's a little hard to predict right now how the court will deal with that.

15:02 - But presumably, if a person brings a defense

15:06 - under anti-SLAPP and loses, the case is going to move on.

15:10 - Will this law apply retroactively?

15:12 - It does not.

15:13 - So this this law was passed into effect in 2024.

15:18 - So any cases that were pending prior to that

15:21 - unfortunately cannot, cannot use this benefit.

15:25 - Now, as this is a Pennsylvania law that we've been discussing, what happens

15:28 - if journalists face a similar situation, but it's filed in federal court.

15:33 - So that's what I was talking about earlier.

15:35 - We've seen in at least two, if not all of our federal courts here in Pennsylvania,

15:41 - the federal courts interpreting, the state law and applying that.

15:46 - So it's it's going to be important for not just the state courts,

15:50 - but the federal courts as well.

15:52 - And like I said, we have seen that litigation

15:55 - most recently in the Middle District of Pennsylvania.

15:58 - Just very recently, the court issued an opinion

16:02 - that included its analysis of anti-SLAPP law.

16:06 - So it's popping up all over the place.

16:08 - And it's wonderful to see courts recognizing this new law.

16:12 - But for everyone's benefit,

16:14 - it will be fantastic once we have the consistent rules.

16:18 - What advice would you give a journalist if they're facing a challenge

16:21 - for something that they've reported?

16:23 - So the first step before journalists even gets to facing a challenge

16:28 - is to make sure that they've done as much work as they can

16:31 - to, analyze the story ahead of time.

16:34 - And there are organizations like the Reporters.

16:36 - Committee for freedom of the press, where I work, and we provide

16:40 - free legal services, including pre-publication review.

16:43 - We have guides on our website about how to obtain records,

16:47 - and how to make sure

16:48 - that stories are really as strong as they can be before publication.

16:52 - But once, if if you know, if it happens

16:56 - that a journalist or a citizen is sued for a matter of public concern,

17:00 - they should immediately seek out a lawyer through the Pennsylvania Bar Association.

17:05 - If there are journalists through we have a hotline for the reporters

17:08 - committee,

17:09 - to make sure that they get to an attorney

17:11 - who understands that we have this new protection in Pennsylvania

17:15 - and how to go about, providing that defense.

17:19 - And right now, it's a little trickier since we don't have those rules.

17:21 - But getting to a lawyer who understands that right away is going to be important.

17:26 - Before we run out of time, I want to make sure

17:28 - that I mentioned that the week of March 15th was designated Sunshine Week.

17:31 - What is the significance of this?

17:33 - We have we just celebrated a great sunshine week.

17:35 - And, the Pennsylvania Bar Association.

17:38 - Bar Press Committee put on a fabulous event in Pittsburgh.

17:41 - We had another event in State College, and Sunshine Week is celebrated

17:45 - all across the country as a way to really embrace the idea of transparency

17:50 - and why government records matter, whether it's court records or records

17:54 - that are obtained

17:55 - through a public records law, such as the right to know law for you.

17:59 - So it's a time where citizens and the public across the country

18:03 - really come together and and talk about why it's important

18:07 - that we have transparency and sunlight

18:09 - about our government operations as we, the people are funding them.

18:13 - And, it's it's a great time to to really reflect on that.

18:18 - Why is open government important for democracy?

18:21 - I mean, democracy can't function without an understanding of how

18:26 - we are electing people, how we're paying for our government operations.

18:30 - So here in Pennsylvania, we have the right to know law.

18:33 - It's our public records law and the Sunshine Act, our public meetings law,

18:37 - the really give us, a great understanding

18:40 - of how our government works and how our taxpayer moneys

18:44 - are going to support the institutions across the Commonwealth.

18:48 - So without transparency, we wouldn't know how our government is working,

18:53 - and we wouldn't have the concept of a government for the people, by the people.

18:57 - So Sunshine Week is really a time for us to embrace why transparency matters

19:03 - and just keep upholding that throughout the year.

19:05 - What public entities are subject to sunshine laws?

19:08 - So the Sunshine Act applies to, many entities boroughs,

19:12 - townships, council, county councils, school boards,

19:16 - and some we don't think about like the board of trustees of a state

19:20 - related in a state related institution.

19:23 - So it and the legislature is subject to the Sunshine Act.

19:27 - So the Sunshine Act means, except for very limited times,

19:32 - we the people have the right to see

19:34 - what is happening and watch the body deliberate in front of us.

19:38 - There are some limited exceptions that allow,

19:42 - a government agency to deliberate behind closed doors.

19:45 - But for the most part, those conversations and the deliberations

19:49 - should take place in public so that the public can see

19:53 - what kind of resources are available both to journalists and just active citizens,

19:56 - if they feel like their their right to access is being denied.

19:59 - The Office of Open Records is our state agency

20:03 - that has oversight over the right to know law.

20:05 - They have a ton of fabulous information about the Right to Know law

20:10 - and Pennsylvania's Sunshine Act, so I would definitely direct folks there.

20:14 - It's a la. Gov, I think.

20:18 - And then on the sunshine side, unfortunately in Pennsylvania

20:23 - there are no, entities that are in charge of enforcing the Sunshine Act.

20:28 - So if someone wants, to sue, they either have to do that themselves,

20:33 - or they could contact the district attorney or the attorney general's office.

20:38 - It's rare, but the Sunshine Act does have criminal penalties.

20:41 - And on occasion, we have seen those levied against, public officials

20:45 - here in Pennsylvania for closing the doors when they should have been open.

20:49 - It's a summary offense, punishable by $100, usually.

20:55 - But that is something that is is available

20:59 - to citizens and journalists

21:00 - if they think that a meeting has been inappropriately closed, they can either

21:05 - sue themselves or contact the district attorney or attorney general.

21:09 - How would you rate.

21:10 - Pennsylvania's laws regarding transparency and access to open records?

21:13 - I think, you know, prior to our rewrite of the Right to Know.

21:17 - Law in 2008, we were pretty bad.

21:20 - Pennsylvania had a poor rating.

21:22 - We've gotten better, certainly over the years.

21:25 - But, just on Monday, colleagues testified in the House state,

21:31 - government, the House Oversight Committee

21:35 - to talk about things that need improvement in the right to know law.

21:39 - And one of the things we talked about was, these two exemptions,

21:43 - criminal investigation and non criminal investigation,

21:47 - they're very broad exemptions.

21:49 - And it leaves out a lot of information from the public to be able to access.

21:54 - So, you know generally I think.

21:57 - Pennsylvania's better than it was, but there's still more room for improvement.

22:01 - And we can have a discussion on another day about body camera footage,

22:05 - which is a whole nother topic separate from the right to know law.

22:09 - So we're doing better in Pennsylvania, but there's always room for more sunshine,

22:13 - especially in the dreary winter months.

22:15 - When Phil tells us winter is still happening.

22:18 - So we're doing okay in Pennsylvania, but always, hoping to get more access

22:24 - and to iron out some of these issues

22:26 - that are causing problems for more government transparency.

22:30 - We've been speaking with Paula.

22:31 - Newsome Burke, senior supervising attorney for the Reporters.

22:34 - Committee for freedom of the press.

22:35 - Thank you so much for joining us. Thank you. Francine.