Free Speech is STILL in Danger in Pennsylvania

Free Speech is still in danger in Pennsylvania… but it doesn’t have to be.  Currently, any citizen voicing an opinion or stating a fact can be legally attacked, bullied and silenced.  Free speech and anti-SLAPP advocates celebrated, prematurely, in July, 2024 when PA enacted a law to protect the freedom of speech of citizens and the press from malicious Plaintiffs and their unethical attorneys.  Why haven’t these protections been activated?  Who continues to allow, if not enable, monied liars & bullies and their thug lawyers to prey on law-abiding citizens?  by Sean Kelly, SLAPP Defendant

(UnhappyFranchisee.Com)  To all my fellow free speech advocates and organizations who worked tirelessly, some of you for more than a decade, to get anti-SLAPP protections enacted in Pennsylvania, I regret to inform you:

We left the job half-done.

Half-Done is WORSE Than None

Half-done, in this case, is worse than none.

If we don’t raise our voices and urge (demand) the PA Supreme Court to expedite whatever’s necessary to activate the protections of the Uniform Public Expression Protection Act (UPEPA), we are just reinforcing the big lie.

Our congratulatory articles, blog posts and social media messages following the successful signing of UPEPA into law created the false impression that PA now has anti-SLAPP protections for everyday citizens, journalists and publications.

It doesn’t.

INVITATION: What do free speech advocates in PA need to do to expedite the implementation of UPEPA in PA? Are their interim measures that can lessen the damage of SLAPP victimization in the meantime? Exercise your right to free speech while you still have it. Share your view, perspective or recommendation in the comments below or via email to UnhappyFranchisee[at]Gmail[dot]Com. All constructive opinions welcome, as always.

PA Anti-SLAPP Protections Became Law July 17, 2024

In Pennsylvania (and many other states), the commonly held belief that citizens have the legally protected right to express their views, opinions and substantiated facts is, sadly, incorrect.

This false belief was reinforced a year and a half ago when governor Josh Shapiro signed the Uniform Public Expression Protection Act (UPEPA) into law on July 17, 2024. 

According to the Reporters Committee for Freedom of the Press (RCFP), the “model law designed to prevent abusive litigation, known as strategic lawsuits against public participation, or ‘SLAPPs,’ aimed at silencing free speech through meritless defamation, privacy, or other nuisance claims.”

The anti-SLAPP legislation had broad bi-partisan support in both houses.  Its primary sponsors were a Democrat (Representative Dan Frankel) and a Republican (Senator Dan Laughlin).

Many writers, organizations and politicians who had expressed support for the long-awaited PA anti-SLAPP legislation (myself included) rejoiced that our state had finally put measures in place to protect our most cherished right of free expression.

When Pennsylvania passed its anti-SLAPP legislation, I thought it would provide a deterrent and some relief from the bullying and threats I receive on an ongoing basis.

Imagine my surprise when I was hit with two SLAPP* lawsuits at the start of the year… only to learn that the law I had advocated for for over a decade would provide little to no protection.

The PA Supreme Court’s Inaction – Intentional or Not – Empowers Bullies & Enriches Unethical Lawyers

While the UPEPA law has been passed with strong bi-partisan support, the Institute for Free Speech explains that key provisions “will only go into effect if the state Supreme Court allows them.”

Evidently, one year and a half later, the Supreme Court of Pennsylvania still hasn’t gotten around to allowing them.

Those key provisions, according to the Institute for Free Speech, include Suspension of Court Proceedings Upon an Anti-SLAPP Motion and Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion.

What does that mean in practical terms?

A Tale of Two SLAPPs.

Let me give you a real-life comparison.

In February, 2014 I was hit with a $35,000,000 defamation lawsuit filed in California.

That’s right. THIRTY FIVE MILLION. DOLLARS.

The Plaintiff, Mark Golob, was the founder of a  women’s fitness franchise called Butterfly Life.  The struggling Butterfly Life franchisees shared their experiences, struggles and warnings about the franchise opportunity on my UnhappyFranchisee.Com site.  The entire Butterfly Life chain eventually folded and every franchisee lost their investments.

Although I hadn’t published about him in three years, attorney Nikolaus Reed filed the $35M lawsuit on behalf of Mark Golob with the sole intent of causing enough pain and distress that I’d remove the content and warnings of his alleged “checkered past.”.

Because California had a solid anti-SLAPP law and procedures in place, the Judge dismissed the bogus lawsuit as a SLAPP and ordered Golob to pay my attorney fees.

The lawsuit was filed February 21 and was dismissed in 3 months by May 21.

It took 3 months, approximately 90 days.

My current defamation SLAPP* is every bit as meritless as the Mark Golob/Butterfly Life SLAPP.

My current lawsuit was filed in February of this year. As of this publication (November), this meritless* lawsuit has dragged on for more than 9 months – over 277 days.

As we are still just early into the costly Discovery Phase, there’s no end in sight to the mounting costs and wasted time and energy.

Much of my time, energy and editorial focus has been diverted toward the Plaintiff and their attack and away from broader subjects that would provide more benefit to the would-be business owners, Veterans and military families my blog serves.

If the DonutNV v Kelly lawsuit had been filed in CA, or had PA fully activated its anti-Slapp procedures in a reasonable time frame, I’m confident this suit would have been dismissed in a few months. 

In fact, it likely wouldn’t have been filed at all.

Defamation Lawsuits Dismissed via Anti-SLAPP Motion:  3 – 6 Months, >$10,000 to Defend

Defamation Lawsuits Without Anti-SLAPP Motions:  1 – 3 Years (12 – 36 Months)  $21,000 – $55,000 to Defend

My experience as a Defendant in defamation lawsuits with and without anti-SLAPP procedures in place mirrors the national averages.

Defamation lawsuits dismissed via anti-SLAPP motions are estimated to take between 3-6 months and cost a defendant between $5,000 – $10,000.

That cost can be lower if prevailing defendants can recover attorney’s fees.

Defamation lawsuits without anti-SLAPP motions can take an average of 1 – 3 YEARS and cost $21,000 – $55,000 to defend (median: $39,000)

It’s clear why the PA legislature decided to pass robust anti-SLAPP legislation.

What’s NOT clear is why the anti-SLAPP law has not been fully implemented.

I Urge the Institute for Free Speech & Other Anti-SLAPP Advocates to Report on the Current State of PA UPEPA Protection

It is likely too late for the establishment of procedures to have any effect on my current lawsuit… that’s not my motivation for urging attention on this issue.

By having declared victory prematurely, and by congratulating a state for passing a law that can’t be used, we’ve erased some of the urgency to make this issue a priority.

I am available to share my story and what I’ve learned as a target of bullying, threats and lawsuits over the past two decades or to otherwise contribute to efforts to address this issue.

Or if you wish to share YOUR experience as a SLAPP target…

Email me at UnhappyFranchisee[at]Gmail[dot]Com

Sean Kelly, Publisher, SLAPP Defendant

My testimony in support of PA anti-SLAPP legislation in 2014 is still visible on the PA State Republicans website, and here:  Sean Kelly Letter in Support of PA anti-SLAPP Law

See DonutNV vs. Sean Kelly, UnhappyFranchisee.com (Court Documents) (upload in progress)

*  Here and elsewhere, I refer to a previous lawsuit (Golob v. Kelly) as a SLAPP, which reflects a judge’s ruling to that effect.  When I refer to my current lawsuit (DonutNV v. Kelly) no such judicial determination has been made.  My reference to the ongoing Donut lawsuit as a SLAPP reflects my own strongly held opinion that this lawsuit is meritless, was filed primarily to deprive me of my protected right to free expression and would be ruled as such by any competent arbiter.  I’m neither an attorney nor a judge, nor am I a legal scholar. You may come to your own conclusion about the merits of DonutNV vs Kelly by reviewing both the allegations in the complaint and my extensive research and reporting, available here:  The DonutNV Franchise Report (Index)

Disclaimer: My attorney did not have prior knowledge that I was going to publish this post and did not review it nor endorse it. I do not post or say anything here with the intent of interfering with a legal proceeding. Navigating the legal process is his job. Reporting my experiences and opinions as if I continue to have the legal right to do so is my job.

Tags:  SLAPP, Ani-SLAPP, Pennsylvania anti‑SLAPP, UPEPA Pennsylvania, Pennsylvania free speech law, PA anti‑SLAPP law, PA Uniform Public Expression Protection Act, DonutNV, DonutNV franchise, DonutNV lawsuit, DonutNV v Kelly, Unhappy Franchisee lawsuit, Doher Joseph Ferris, D. Joseph Ferris, Klehr Harrison Harvey Branzberg LLP, attorney William Clements, Christopher J. Leavell, Institute for Free Speech, Reporters Committee for Freedom of Speech, Paula Knudsen Burke, FIRE, ACLU, Brandon Harter, Lancaster Tech Law, PA Supreme Court, Supreme Court of Pennsylvania, Sean Kelly, UnhappyFranchisee