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First suit under recently enacted Uniform Public Expression Protection Act is underway in Bergen County

The matter Albert H. Wunsch, III, v. CTE Republicans for Englewood Cliffs, Mark Park, Zhi Liang, Rivka Biecagz, and Penny Rousouli, is currently in the Superior Court of Bergen County. The case concerns candidates in a local public election. Plaintiff instituted the action by way of an order to show cause after asserting that Defendants published defamatory political advertisements concerning Plaintiff. Specifically, Defendants had circulated mailings that promoted their candidacy and addressed issues surrounding re-development/rezoning of certain housing areas. It should be noted that Plaintiff, in his capacity as town counsel, was intimately involved with those issues.

Attorneys for Defendant Mark Park, and attorneys for the remaining named defendants have both filed briefs in support of an order to show cause to stay and dismiss the complaint against them pursuant to the Uniform Public Expression Protection Act (“UPEPA”). They assert that Defendants exercised their right to freedom of speech on a matter of public concern. UPEPA was recently signed into law in September 2023.

In order for the court to consider dismissing the complaint, the Defendants need to establish UPEPA applies, and the plaintiff fails to establish that UPEPA does not apply. Additionally, Plaintiff needs to establish a prima facie case as to the essential elements of the cause of action. Here, the verified complaint needs to specify who published the alleged defamatory statement(s), that the statement is one of fact, not opinion, the statements are false, made with malice, and are about the plaintiff.

According to Defendants’ briefs, the lawsuit was filed as a political tool to interfere with an election the Defendants won. It also threatens, silences, and deters the Defendants from discussing matters of public concern. UPEPA applies to causes of action involving a person based on their exercise of the right to freedom of speech on a matter of public concern. The Act is meant to protect the exercise of this right and allows such person to file an order to show cause to dismiss the cause of action.

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