Kentucky

Kentucky UPEPA Held Not Available In Federal Court In Peach

Published

2 years ago

May 11, 2024

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Kentucky UPEPA Held Not Available In Federal Court In Peach

The Bluegrass State Protects Free Speech Unless You Are In Federal Court

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The case of Peach v. Hagerman, 2024 WL 1748443 (W.D.Ky., April 23, 2024), arose from a Kentucky social worker who filed a complaint alleging possible child abuse. The person against whom the claim was made prevailed and fought off the charges at a hearing, and then sued the social worker for malicious prosecution, defamation and some other things arising from the social worker’s complaint. The social worker filed a motion to dismiss the lawsuit under Kentucky’s new Uniform Public Expression Protection Act (UPEPA), asserting the social worker’s protected right to file her complaint.

Now, however, we get to the inevitable fly in the ointment: The lawsuit had been filed not in Kentucky state court, but rather in the U.S. District Court for the Western District of Kentucky. Even before the UPEPA special motion to strike could be heard, there was a preliminary question as to whether Kentucky’s UPEPA even applied at all in federal court.

The United States of course has a bifurcated legal system of federal and state courts. A federal court sitting in diversity jurisdiction, however, is to apply the state law of the district in which the federal court is found. However, federal courts have their own procedural rules, embodied in the Federal Rules of Civil Procedure, known as the FRCP. What happens when the FRCP conflicts with state law?

The rule stated by the U.S. Supreme Court is that if the FRCP answers whatever issue is before the district court, then the FRCP shall apply to resolve that issue to the exclusion of the contrary state law. The question before the district court here is whether the Kentucky UPEPA should apply to allow the social worker a chance for an early dismissal of the plaintiff’s defamation case, or whether the FRCP should apply as it normally does in cases to allow the plaintiff to conduct discovery before the court seriously dismissal.

The district court noted that there was a split of rulings between the U.S. Circuit Courts of Appeals. The U.S. Circuits which have ruled that the FRCP applies instead of a state’s Anti-SLAPP laws (which would include the UPEPA) are the 2nd, 5th, 10th, 11th and DC Circuits. However, the 1st and 9th Circuits have gone the other way and held that the applicable state’s Anti-SLAPP laws should apply instead of the FRCP. Kentucky sits in the 6th Circuit, which so far as not decided the issues, although the district court noted that an appeal of this issue from Tennessee was before the 6th Circuit. So what to do?

The district court here held to the effect that the FRCP essentially provides for a procedure for dismissal of a claim through a summary judgment motion (FRCP 56), and this motion may be held at the onset of the litigation through an FRCP 12(b)(6) motion to dismiss. Thus, since the FRCP already resolved the issue, there FRCP would be applied instead of the Kentucky UPEPA.

Having held that the Kentucky UPEPA would not apply since the FRCP allows for an early dismissal of a claim, the court then next noted that summary judgment should not ordinarily be granted until the parties had completed discovery, which had not happened in this case. Therefore, the social worker’s motion was denied.

ANALYSIS

Although couched as procedural statutes, Anti-SLAPP statutes (including the UPEPA) are instead substantive law statutes that provide a substantive right to persons to be free of extended litigation when they are sued as a result of their lawful exercise of their free speech rights. The Prefatory Note to the UPEPA states:

“An Anti-SLAPP law, at its core, is one by which a legislature imposes external change upon judicial procedure, in implicit recognition that the judiciary has not itself modified its own procedures to deal with this specific brand of abusive litigation. Although procedural in operation, these laws protect substantive rights, and therefore have substantive effects. So, it should not be surprising that each of the 34 legislative enactments have been performed statutorily—none are achieved through civil-procedure rules.”

Comment 2 to UPEPA § 2 elaborates:

“Although the Act operates in a procedural manner—specifically, by altering the typical procedure parties follow at the outset of litigation—the rights the act protects are most certainly substantive in nature. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applying California’s anti-SLAPP law to diversity actions in federal court because the statute was ‘crafted to serve an interest not directly addressed by the Federal Rules: the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’). Otherwise stated, the Act’s procedural features are designed to prevent substantive consequences: the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13–CV–124, 2014 WL 2611746, at * 1 (S.D. Tex. June 11, 2014). As stated by one California court, ‘[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.’ People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (4th Dist. 2004).”

That some of the U.S. Circuits have utterly missed this point has lead to forum shopping on these Circuits by way of defamation plaintiffs bringing in federal court what would otherwise be purely state court proceedings, just to avoid the state Anti-SLAPP laws. How the Sixth Circuit will ultimately handle these cases is anybody’s guess, but eventually the U.S. Supreme Court will need to resolve the split within the Circuits, assuming that Congress does not take the matter into its own hands.

If you are curious about how the Federal Rules of Civil Procedure come about, the Rules Enabling Act of 1934 (28 USC § 2071, et seq.) authorizes the U.S. Supreme Court to enact court rules or procedure. Our highest court, however, delegates that function to the Judicial Conference to come up with those rules. The Judicial Conference is made up of ― you guessed it ― judges of the U.S. Circuit and District Court. The Judicial Conference is thus made up of the very judges who have failed to take action against the problem of so-called SLAPP suits in the first place. “Nothing to see here, Ma’am, now please do just move along.”

Ideally, the Judicial Conference would amend FRCP 12, which is the rule that allows for the dismissal of certain cases before the litigation really starts rolling along, so as to better protect free speech defendants from meritless litigation, but they have not done so. As just discussed, federal judges are historically loathe to admit that there is even any problem with anything in the first place, and so the odds of that happening are low. Thus, if anything is going to happen with Anti-SLAPP in the federal courts, it will likely take Congressional action to make it happen.

From time to time, Anti-SLAPP Acts have been introduced into various sessions of Congress, but those introductions have gone nowhere as so much good legislative proposals have done with that highly dysfunctional institution. This is odd as at the state level, at least, Anti-SLAPP legislation has proven to be that rare breed which is popular with both political parties. Nonetheless, with Anti-SLAPP legislation now having been adopted by a solid majority of states, pressure for a federal statute will continue to grow and I expect that someday we will seen a President sign it into law.

In the meantime, at the federal level the application of Anti-SLAPP laws is a mess as demonstrated by this case.

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Kentucky

Liberty Trees planted throughout Kentucky

Published

9 hours ago

May 11, 2026

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Liberty Trees planted throughout Kentucky

CAMPBELL COUNTY, Ky. (WXIX) – Liberty Trees are being planted across Kentucky in celebration og America 250.

FOX19 NOW’s Philip Krinsky went down to Campbell County, where a Liberty Tree dedication took place.

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Kentucky

2026 Kentucky Derby: The Sporting Event Expanded Its Partnerships

Published

21 hours ago

May 11, 2026

Press Room

2026 Kentucky Derby: The Sporting Event Expanded Its Partnerships

LOUISVILLE, KY.—Jockey Jose Ortiz rallied long shot Golden Tempo from way back in the pack to claim the 152nd Kentucky Derby on May 2, beating his older brother Irad Ortiz Jr. by a neck and making Cherie DeVaux the first woman to train a Derby winner.

Held at Churchill Downs Racetrack in Louisville, Ky., this year’s race averaged 19.6 million viewers on NBC and Peacock, making it the most-viewed Run for the Roses on record since Nielsen began tracking average audiences in 1988.

In the week leading up to the first Saturday in May, Churchill Downs hosted a full roster of events, including 502’sDay, Winsday, Thurby, and the Kentucky Oaks (when fans watch 3-year-old fillies compete), which, for the first time, was contested in primetime and on network television.

As part of the racetrack’s ongoing renovations, the sixth-floor space, 10,000-square-foot ultra-VIP space known as The Mansion opened its private doors, revealing a $30-million refurbishment. There were improved amenities in the Finish Line Suites this year as well.

But that wasn’t the only newness happening. This year introduced several firsts, including the Derby’s first-ever beauty partnership with L’Oréal, an MLB activation where fans were able to put their pitching skills to the test, and a limited-edition Graeter’s ice cream flavor, Bourbon Backstretch Cherry.

Returning partners also evolved their experiences for 2026, including Old Forester serving up a new signature cocktail with a fruity twist called the Perfecta and Red Bull expanding its lounge area in the Infield, which included a custom Ford F150 DJ booth with custom Red Bull cocktails.

This updated partnership strategy is part of the racetrack’s efforts to attract younger fans and the Gen Z demo. “Reaching new and younger audiences is how the brand stays relevant after 152 years,” said Casey Ramage, senior marketing and partnerships consultant for Churchill Downs Racetrack.

“Churchill Downs does this by offering onsite fans brand experiences such as beautiful photo moments around our iconic Twin Spires and partner collaborations and merchandise brands that are relevant to this audience such as vineyard vines, lululemon, and Aviator Nation,” she said.

For the fans at home, the Churchill Downs team also turned more to social media to educate the viewing audience. This year, the Derby’s social media accounts saw a 59% increase during Derby Week, Ramage added.

As for the L’Oréal partnership, Ramage said it just made sense. “With fashion being one of the first things you think about for the Kentucky Derby experience, Churchill Downs has always wanted to partner with a beauty brand, and L’Oréal Paris is the perfect fit,” she explained.

The brand was the presenting partner of the Derby’s Green Room, where celebrities and VIPs were able to touch up their makeup and hair before walking the red carpet. L’Oréal also produced activations in the Woodford Reserve Paddock Plaza fan zone with product giveaways and surprise-and-delight makeup moments in the ladies’ restrooms.

Keep scrolling to see more from the 2026 Kentucky Derby and the brand activations and parties surrounding the historic event…

^{L’Oréal produced activations in the Woodford Reserve Paddock Plaza fan zone with product giveaways as well as surprise-and-delight makeup moments in the ladies’ restrooms.}^{Photo: Courtesy of Churchill Downs Racetrack}

^{Because of Churchill Downs’ strong partnership with NBC, the racetrack also highlighted the network’s new relationships with both the MLB and WNBA. The MLB hosted an interactive pitch activation, where fans were challenged to test their fastball and track their throwing speed in real time.}^{Photo: Courtesy of Churchill Downs Racetrack}

^{Attendees posed inside a WNBA bespoke photo moment.}^{Photo: Courtesy of Churchill Downs Racetrack}

^{The WNBA logo was made out of red and white roses, as a nod to the Derby race.}^{Photo: Courtesy of Churchill Downs Racetrack}

^{Apparel brand vineyard vines marked its 16th year as the Official Derby Style with on-site activations, including a fully branded stage in the Infield, featuring live entertainment and giveaways such as its fan-favorite whale hats, sunglasses, and more.}^{Photo: Courtesy of vineyard vines}

^{Fully wrapped F-150s and Broncos in a vineyard vines print were located at the track’s “First Turn.”}^{Photo: Courtesy of vineyard vines}

^{Sports Illustrated Resorts’ Club SI hosted guests across both Oaks and Derby Day at Churchill Downs. The exclusive hospitality suite offers a view of the paddock and paddock runway. SI Swim model Camille Kostek hosted Oaks Day, while commentator Nate Burleson led Derby Day.}^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{Guests received custom caricature illustrations in the hospitality suite.}^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{Sports Illustrated, in partnership with}J Wagner Group^{, closed out Derby weekend with its third annual late-night celebration, Revel at the Races presented by DraftKings, which was headlined by Tiësto and held at}Ice House^.^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{As the official apparel partner, Ted Baker presented a branded photo moment.}^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{Verizon served as the exclusive wireless partner, offering expedited entry via a dedicated fast lane and ticket access through Verizon Access.}^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{As the official bourbon partner, Maker’s Mark served up premium cocktails.}^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{HydroJug provided on-site custom engraving, delivering a personalized takeaway for guests.}^{Photo: Courtesy of Authentic Live, a Division of Authentic Brands Group}

^{The Derby experience starts long before the bugle sounds at Churchill Downs, so Delta turned the journey to the Louisville Muhammad Ali International Airport into a spirited ride. On May 1 and 2, in partnership with Brown-Forman, Delta offered travelers in the Atlanta and JFK Delta Sky Clubs a bespoke Mint Julep syrup. Once onboard their flights, passengers could pair it with Woodford Reserve bourbon to craft a cocktail.}^{Photo: Courtesy of Delta}

^{The airline also surprised travelers with arrival and departure goody bags on April 30 and May 3 at the Louisville airport.}^{Photo: Courtesy of Delta}

^{Crew members donned fascinators to close out the weekend.}^{Photo: Courtesy of Delta}

^{Herradura returned with its official cocktail, the Horseshoe Margarita. The brand also collaborated with Q Mixers on a new track-wide cocktail featuring Herradura Reposado called the Paddock Paloma.}^{Photo: Courtesy of Herradura}

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Kentucky

2026 Kentucky Wildcats football position preview: Safety

Published

1 day ago

May 10, 2026

Press Room

2026 Kentucky Wildcats football position preview: Safety

As we continue to go position group by position group and project what each unit will look like for the 2026 Kentucky Wildcats, we will now look at the safety room. This position is led by two of the most experienced safeties in the conference with Ty Bryant and Florida transfer Jordan Castell. The safety position is heavily relied upon in defensive coordinator Jay Bateman’s scheme. Having experience is paramount for this group, as Coach Bateman will call creative looks for disguised coverages which will create plenty of safety rotations pre-snap and post-snap.

Starters

I think it is safe to assume that the new staff made it a priority to retain Ty Bryant and Willie Rodriguez more than any other returning players on the roster. Bryant was voted second team All-SEC by coaches last season and is one of the best safeties in the conference. He was the team’s leading tackler a year ago with 76 total and led the SEC with four interceptions. Bryant is a do-it-all safety that has a nose for the football and is expected to be the leader of the defense this fall.

Jordan Castell transferred over from the Florida Gators, where he started over 30 games in his career. Castell is a long, rangy safety that knows what it takes to play at an SEC level. He started as a true freshman at Florida and earned freshman All-SEC honors in 2023. Over his three seasons with the Gators, Castell has totaled 169 tackles, 13 pass breakups and three interceptions.

If things go as planned, these two will rarely come off the field this season. Bryant has natural playmaking ability on the back end as a ball hawking safety and is coming off the best season of his career. Castell has ideal length for the position and has shown the ability to make big time plays in this conference. Bryant and Castell form one of the best safety tandems in the SEC and will be a key to the defensive success in 2026.

Backups

Dyllon Williams
Jesse Anderson

Dyllon Williams is a 6’2, 191-pound redshirt freshman that got his feet wet last season in limited snaps. Williams only saw action against Eastern Michigan, Florida and Vanderbilt a year ago. Ideally, I don’t expect him to see much of an increase in playing time this season but it will be interesting to see how he progresses when he does get on the field. Coach Bateman does like to throw three safety looks at opposing offenses, but that will likely be manned by the slot corner position group.

Jesse Anderson is a transfer from Pitt that brings some experience to the depth of this room. In three seasons at Pitt, he has received snaps in 23 games as a rotational safety. I wouldn’t expect his role to change, he will be a rotational guy in this group as well and brings much needed experience in a backup role. Anderson is on the smaller side at 6’0, 186-pounds.

Like I previously mentioned, Coach Bateman likes to keep offenses off balance with three safety looks in coverage. However, I expect the slot corners to be heavily involved in those formations, which will be Aaron Gates and Jaden Smith. We will group the slot corners in with the cornerbacks when we preview that position group. Overall, this safety room is a strength of the team although it is hinged on the experienced duo of Bryant and Castell.

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