Senate adjourns without taking up anti-SLAPP bill

A bill to protect journalists, activists, and citizens from costly and frivolous lawsuits designed to silence them failed to reach a vote in the state Senate before it adjourned, halting momentum for legislation that supporters say is a much-needed free-speech safeguard.

The Senate legislation and its Assembly version would have adopted the Uniform Public Expression Protection Act (UPEPA), a model law intended to derail so-called “strategic lawsuits against public participation,” or SLAPP. The Senate’s adjournment for the session likely means the bill is dead until at least next year.

If enacted, Wisconsin would have joined a growing number of states that have adopted anti-SLAPP protections. Lawmakers testifying at a January 26 public hearing said at least 15 states have passed the UPEPA specifically, while 38 states have enacted some form of anti-SLAPP legislation. 

The bill drew support from organizations including the Wisconsin Newspaper Association and the Wisconsin Freedom of Information Council, signaling backing from both media and transparency advocates. 

According to an analysis by the Wisconsin Legislative Reference Bureau (LRB), the bill would allow a person served with a civil complaint to file an expedited special motion to dismiss any action based on the person’s communication in a governmental proceeding; communication on an issue under consideration or review in a governmental proceeding; or the exercise of the constitutional right of freedom of speech or of the press, the right to assemble or petition, or the right of association, on a matter of public concern. 

Under the proposal, courts would have to hold a hearing within 60 days and make a ruling within another 60 days, a significantly faster process than in traditional litigation. The bill also would have put discovery — often the most expensive phase of litigation — on hold while the motion was pending, and would have required courts to award attorney fees and costs to prevailing defendants when lawsuits were found to be without merit. 

To succeed under the law, a defendant would need to show that the lawsuit stemmed from protected activity. The burden would then shift to the plaintiff to establish a prima facie case or to demonstrate that the claim falls within a specific exception, such as a commercial dispute or an employee acting in an official capacity. 

If the plaintiff failed, the case would be dismissed “with prejudice,” preventing it from being refiled.

Lawmakers: Bill targets ‘abusive litigation’

Supporters told lawmakers during a Jan. 26 public hearing that the legislation was designed to address a growing trend of lawsuits filed not to win on the merits but to burden critics with legal costs.

“The bill does this by combating strategic lawsuits against public participation, or SLAPPs, where an individual or entity files a meritless complaint against another for exercising their right to free speech,” Sen. Eric Wimberger (R-Oconto) said at the hearing. “In these lawsuits, plaintiffs hope to create a chilling effect that silences critics through burdensome litigation and expensive legal fees.”

Rep. Jim Piwowarczyk (R-Erin), the Assembly author, said the legislation would help safeguard civic participation.

“At its core, this bill is about safeguarding First Amendment rights by ensuring that citizens are not silenced through abusive litigation for speaking on matters of public concern,” Piwowarczyk said. “The bill provides a clear and efficient process for courts to quickly dismiss lawsuits that target protected speech or participation in governmental proceedings.”

Prolonged litigation — even when ultimately unsuccessful — can deter speech, Piwowarczyk said.

“These protections are essential to prevent the chilling effect that prolonged and expensive litigation can have on free expression,” he said. 

A real-world example

Supporters pointed to a recent Wisconsin case as evidence of the need for reform.

In that case, parent and activist Scarlett Johnson was sued for defamation after criticizing her school district on social media. The Wisconsin Institute for Law & Liberty (WILL), which represented Johnson, described her posts as “run-of-the-mill social media posts” on Facebook and X.

“The posts in question criticized a school district for having a ‘social justice coordinator,’ and described people who hold such positions as ‘woke,’ ‘white savior[s]’ with a ‘god complex,’ ‘woke lunatics,’ and ‘bullies,’” WILL stated in explaining the case. “Statements like these are pervasive on social media; indeed, they were more restrained than a lot of online speech.” 

Nevertheless, WILL continued, the plaintiff, who previously held the position, chose to file a defamation lawsuit, and the trial court allowed the claims to proceed to trial. The Wisconsin Court of Appeals ultimately ruled in Johnson’s favor, concluding that her statements were opinions and “cannot be proven true or false,” and therefore did not constitute defamation. 

However, supporters of the legislation said the outcome came only after WILL got involved and that before its entry Johnson was under significant pressure to settle the case as her legal costs rose. WILL deputy counsel Luke Berg argued that the case should never have proceeded as far as it did.

“Scarlett, like all of us, has the right to question and criticize her government,” Berg said. “The defamation lawsuit against her was meritless and should have been promptly dismissed.” 

Johnson said the experience underscored the need for protected speech.

“Free speech belongs to every mom, dad, and citizen who demands answers and accountability from their government,” Johnson said. “I am grateful that WILL stood alongside me in this legal battle. Parents across the country are speaking out against radical ideology in our schools, and our fight does not stop today.”

Advocates say such cases illustrate how the legal process itself can become a form of punishment, even when defendants ultimately prevail. By moving judicial review to the front end of the process, costs shift to plaintiffs when claims lack merit. Supporters also argue that the bill would protect a wide range of speakers, including journalists, advocacy groups, and independent media producers who may lack the resources to defend against prolonged litigation.

“This is not a Republican or Democrat issue,” Piwowarczyk said. “This is a free speech issue. In Wisconsin, we’ve seen frivolous lawsuits targeting First Amendment-protected speech used in an attempt to silence activists and journalists. While the rich and powerful may have unlimited resources to move forward with lawsuits, their targets do not, which may result in those people being silenced and forced to settle rather than engage in expensive and ongoing litigation. This legislation will help stop that.”

Piwowarczyk also observed that the bill would only stop frivolous lawsuits. Plaintiffs with legitimate cases will still be able to move forward.

With the Senate failing to bring the bill to a floor vote, the proposal will likely need to be reintroduced in a future legislative session. 

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.