A legal battle over local politics may soon result in the first court ruling interpreting New Jersey’s new anti-SLAPP statute, designed to protect against meritless lawsuits that seek to punish and chill constitutionally protected speech. Journalists should pay close attention. Despite the fact that the case doesn’t directly involve the press, it could still have significant implications for reporters and news outlets.

A political slap fight

It all started when Albert Wunsch, a Democrat and the former Englewood Cliffs borough attorney, sued a Republican group and several Republican candidates for defamation. Wunsch claims that flyers and emails sent by the defendants as part of a recent election campaign falsely accuse him and a Democratic mayoral candidate of mismanaging taxpayer money and wrongly paint Wunsch as unethical and corrupt.

The court initially ruled in Wunsch’s favor. It ordered the defendants to issue a retraction and publish a public apology. Even more alarming, it issued an unconstitutional prior restraint, barring the plaintiffs from issuing “any further publications” regarding Wunsch.

Within days, however, the defendants asked the court to reconsider, citing the state’s new anti-SLAPP law, the Uniform Public Express Protect Act. The court paused its earlier order and, on Jan. 26, held a hearing on the defendants’ motion.

New Jersey journalists’ protection from SLAPPs may be at stake

As the first decision interpreting UPEPA, the court’s ruling in this case matters for New Jersey journalists and news outlets. Journalists are frequent targets of SLAPPs. So when UPEPA was enacted, press groups hailed it as an important protection against SLAPPs attacking journalism.

UPEPA allows frivolous lawsuits to be dismissed quickly and easily and requires plaintiffs to pay the defendants’ legal costs if their case is dismissed. That means plaintiffs can’t abuse the legal system to run up defendants’ legal costs as a way of attacking speech they dislike.

The court’s decision in the Wunsch case, however, may shape just how quickly and easily a meritless lawsuit can be dismissed. UPEPA requires that a plaintiff’s complaint provide at least some evidence to support every element of a defamation claim. Otherwise, the case gets thrown out.

Whether the court says that’s a hard standard or an easy standard for plaintiffs to meet could mean the difference between an effective anti-SLAPP law and a toothless one. We’ve seen court decisions in other states, including Illinois, render anti-SLAPP laws that appeared strong on paper far weaker in practice. Here, if the court decides that the kinds of general allegations that Wunsch makes in his complaint are enough to survive dismissal under UPEPA, then New Jersey’s new anti-SLAPP law would be significantly less protective than it appears.

In Wunsch’s case, specifically, the court will have to consider whether his complaint supports a finding of “actual malice”, i.e., proof that the defendants knowingly or recklessly made defamatory statements about him. That’s because, under New Jersey law, defamation claims based on matters of public concern must be supported by actual malice. (In contrast, the Supreme Court has said that the First Amendment requires proof of actual malice only in cases involving public figures or public officials.)

The statements at issue in Wunsch’s case are about elected officials’ decisions and the use of taxpayer money, clearly matters of public concern. But Wunsch’s complaint doesn’t provide any evidence that the defendants acted with actual malice. The closest he comes are conclusory statements that the defendants were “well aware” that the statements at issue were false and that they acted “intentionally in knowing the information they published was false and damaging.”

The court shouldn’t treat those statements as “magic words” sufficient to allege actual malice and defeat a motion to dismiss. For UPEPA to be truly effective at screening out SLAPP lawsuits, the court must interpret the law to require dismissal unless plaintiffs can provide evidence, not just vague assertions, of every element of a claim.

A prior restraint thrown in for good measure, too

Journalists should also pay attention to whether the court renounces the part of its initial order barring the defendants from making “any further publications” about Wunsch — whether true or not, defamatory or not. Some narrowly tailored injunctions concerning defamatory statements may be constitutional, but the court’s broad order here is an unconstitutional prior restraint that bars hypothetical future statements no court has found defamatory.

While it may not be legally necessary to revisit it if the court (correctly) grants the defendants’ motion to dismiss the case, explicitly repudiating it would send an important message that the court understands and respects the First Amendment.

New Jersey has enacted a strong anti-SLAPP law that can protect journalists, freedom of the press, and free speech more generally. Now, it’s up to the courts to correctly enforce it. As UPEPA faces its first test, journalists should be watching to determine whether the court’s decision makes the grade.