Ohio Becomes the 35th State to Enact an Anti-SLAPP Statute

If you are considering filing a defamation lawsuit or other speech-based claim, you are likely aware that your claim may be challenged based upon free-speech principles or that the defendant may claim that their conduct is protected by the First Amendment. One mechanism to challenge such cases is through the use of Anti-SLAPP statutes. However, not every state or jurisdiction has Anti-SLAPP statutes available to litigants.  Ohio has now become the 35^th state to enact such a statute.

On January 8, 2025, Ohio Governor Mike DeWine signed Ohio Senate Bill 237 into law, which enacts a statutory framework known as the Uniform Public Expression Protection Act (“UPEPA”) or, stated plainly, Ohio’s first anti-SLAPP legislation. The statute, R.C. 2747.01, et seq., “applies to a cause of action asserted in a civil action against a person based on any of the following:

1. The person’s communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
2. The person’s communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding;
3. The person’s exercise of the right of freedom of speech and of the press, the right to assemble and petition, and the right of association, guaranteed by the United States Constitution or the Ohio Constitution, on a matter of public concern.”

Like other anti-SLAPP litigation, Ohio’s anti-SLAPP statute involves, in essence, two key questions: (1) whether the claim at issue is “based on” one of the above categories, and, if so (2) whether the proponent of the claim can establish, through appropriate evidence if necessary, that their claim could survive summary judgment proceedings. Like other jurisdictions, the burden of proving the applicability of the statute is on the movant, while it is the burden of the proponent of the claim demonstrate the viability of their cause of action.

Other key highlights of Ohio’s new anti-SLAPP legislation include:

• A limited timeframe to pursue an anti-SLAPP motion
• A limited timeframe for the Court to hold a hearing and, subsequently, rule upon an anti-SLAPP motion
• An immediate right of appeal to movants whose anti-SLAPP motion has been denied
• An automatic stay of discovery following the filing of an anti-SLAPP motion, which can be overcome under certain circumstances
• The provision of reasonable attorney’s fees, costs, and litigation expenses to the movant if the motion is granted, and the provision of reasonable attorney’s fees, costs, and litigation expenses to the non-movant if the motion is denied and constitutes frivolous conduct
• Three specific exceptions to the applicability of the statute, including what could be referred to as a “commercial speech exception”

For individuals considering litigation it is important to remember that Ohio’s anti-SLAPP law does NOT bar meritorious claims. Rather, it simply asks litigants to demonstrate the validity of those claims before engaging in the lengthy and expensive process of discovery. Additionally, unlike many jurisdictions, Ohio’s statutory scheme provides a relatively strict timeframe for filing and ruling upon anti-SLAPP motions and, accordingly, will ensure that meritorious cases are permitted to proceed without undue delay.

Conversely, those who face facially frivolous lawsuits arising from First Amendment conduct now have an expedited remedy to avoid the burden and cost of defending against litigation designed to infringe upon their rights.

For many of Ohio’s lawyers and judges, navigating the new statutory scheme will present a challenge. Significantly, the statutory language does instruct courts, when applying the statute, to “consider the need to promote uniformity of the law with respect to its subject matter among states that enact a substantially similar law.” This signals that courts will likely look to jurisdictions that have enacted substantially similar anti-SLAPP statutes for guidance in their application. However, as matters involving anti-SLAPP proceedings work their way through Ohio’s courts, undoubtedly, nuances in the application of the statute will be created.

Our Defamation team at Buckingham is well positioned to tackle any challenges that arise in cases involving Ohio’s new anti-SLAPP law. As our team has handled anti-SLAPP proceedings in a variety of jurisdictions and is familiar with a variety of anti-SLAPP statutes from other states.

If you are the victim of false and defamatory statements, regardless of where you live in the United States, and would like to discuss your options for handling your matter, Buckingham can help. We have experience defending against anti-SLAPP challenges in various jurisdictions and can provide insight as to whether your claim may be the subject of such a challenge.

Contact Andrew Stebbins or Christina Williams of our experienced Defamation team to schedule an appointment.