Provo Canyon, Utah
Utah adopted the Uniform Protected Expression Protection Act (“UPEPA”) in 2023 to substantially update its Anti-SLAPP laws. We now get to see apparently the first written opinion to interpret the Utah UPEPA.
United Health Services owned a Utah facility known as UHS of Provo Canyon which provided psychiatric treatments to children and teens, including those suffering from substance abuse. The Provo Canyon facility came under substantial media scrutiny for its methods and also in 2020 ended up paying a $117 million settlement to U.S. and certain states for submitting claims for treatments that were not medically necessary.
Enter Robert Bliss, an online content creator and filmmaker who decided to conduct a personal investigation of Provo Canyon. Bliss did this by successfully applying for a job as a health technician at Provo Canyon. Once at Provo Canyon, Bliss documented his experiences at Provo Canyon, including wearing a hidden camera and retained some materials from the facility. At some point, the Provo Canyon folks became suspicious of Bliss, researched his background, and eventually Bliss’ employment there ceased.
UHS sued Bliss and sought a preliminary and permanent injunction against Bliss prohibiting him from using the information, images, and documents that he had gathered. In response, Bliss filed a motion to dismiss UHS’s complaint under Utah’s new UPEPA, leading to the opinion in UHS of Provo Canyon, Inc. v. Bliss, 2024 WL 4279243 (D.Utah, Sept. 24, 2024). The Court began by noting that:
“UPEPA is known as an anti-SLAPP act. A SLAPP is a Strategic Lawsuit Against Public Participation. SLAPPs are often cloaked as otherwise standard claims of defamation, civil conspiracy, tortious interference, nuisance, and invasion of privacy, just to name a few. But for all the ways in which SLAPPs may clothe themselves, their unifying features make them a dangerous force: Their purpose is to ensnare their targets in costly litigation that chills society from engaging in constitutionally protected activity. UPEPA is designed to prevent the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit.”
[Inner quotations and citations omitted.]
The Court next explained how a UPEPA motion to strike works, which is that the moving party (Bliss) has the initial burden of showing that the responding party’s (UHS’s) causes of action fell with the scope of the UPEPA and thus protected speech, after which the burden shifts to UHS to show that, nonetheless, UHS could state a viable cause of action.
Now here is an interesting tidbit of First Amendment law: The courts have held that the collection of information is protected activity because it goes to speech-creation. Thus, Bliss’ activity in gathering information about Provo Canyon would be protected by the First Amendment, although his ultimate use of the information might still be prohibited by the contractual agreements that Bliss signed. Provo Canyon’s causes of action relating to Bliss’ information gathering would thus be subject to the UPEPA and Bliss’ motion to dismiss.
This would not apply, however, to certain information on individual patients of Provo Canyon which Bliss had procured in violation of the confidentiality agreement that he had signed, since that information was not a public matter. This would not prevent Bliss from relating his experiences, it’s just that he could not use this information to do so.
Moving on to specific causes of action, the Court allowed UHS’s claim for breach of contract claim to survive for now because that claim was plausible. Similarly, the Court allowed UHS’s claim for misrepresentation to proceed because UHS needed accurate background information from Bliss to protect the confidentiality of its patients. The UHS claim for Bliss’ alleged violations of federal and state wiretapping laws was similarly allowed to proceed because neither Provo Canyon or its patients consented to the recordings. The UHS claim for trespass by Bliss was also allowed to proceed as there was an issue as to whether Bliss exceeded his invitation to enter the Provo Canyon facility. The Court also allowed UHS’s claim for conversion of its training and another materials by Bliss to proceed. However, the Court granted Bliss’ motion to dismiss on its claim for intrusion upon seclusion on the grounds that as a corporation, UHS had no personal right of privacy.
The next issue before the Court was whether UHS was entitled to a preliminary injunction to prevent Bliss from using the video and audio recordings, plus the materials that he had collected during his time at Provo Canyon. The Court found that allowing this stuff could potentially cause irreparable harm to UHS and so therefore enjoined Bliss from using or disseminating these items for the time being.
The upshot of the Court’s rulings was that Bliss was able to knock out UHS’s intrusion upon seclusion claims, but the vast bulk of UHS’s claims survived the UPEPA motion to dismiss. Notably, an ordinary motion to dismiss should have knocked out that claim anyway since it was determined purely as a matter of law (corporations have not personal privacy rights). So, Bliss’ UPEPA motion was mostly a failure.
This does not mean that Bliss loses any of these issues on the merits, but rather that they will proceed to be litigated in the normal course. Bliss could ultimately win or lose on any of them, but that is beyond the subject of this article. The notable takeaway is that this case apparently represents the first use of Utah’s UPEPA and it demonstrates how the UPEPA is to be used in cases like this.
