Kentucky
Kentucky UPEPA Held Not Available In Federal Court In Peach
The Bluegrass State Protects Free Speech Unless You Are In Federal Court
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.
LEXINGTON, Ky. (LEX 18) — An Ebola outbreak in the Democratic Republic of Congo and Uganda has been causing fear around the world, and a Lexington doctor is preparing in the event a case is found in Kentucky.
According to the CDC, there have been 49 deaths and over 300 confirmed cases across the two countries, with more suspected cases still being investigated.
UK Healthcare is working to become a Level 2 Special Pathogen Treatment Center through the National Special Pathogen System, which would allow the facility to treat Ebola patients in-house.
Dr. Nicholas Van Sickels, an infectious disease physician at UK Healthcare, said the current outbreak is serious, but Kentucky residents are not at significant risk.
“Ebola scares people just because of the mortality, the death rate, associated with it and some of the long term consequences when you do survive. Fortunately, the strain that we’re seeing in Eastern (Democratic Republic of Congo) is thought to be not as deadly, but either way it’s a very serious disease. It carries a lot of stigma and fear,” Van Sickels said.
Here in Kentucky, however, is a very safe environment, Dr. Van Sickels said.
Currently, Dr. Van Sickels says UK Healthcare operates as an assessment hospital, meaning it can evaluate patients with symptoms who have traveled to regions with active outbreaks, coordinate testing with the state, and transfer patients to higher-level care centers if needed.
Once the Level 2 designation is complete, UK Healthcare will be the only facility in Kentucky with that capability.
“We’re the only facility in Kentucky that is able to have a level 2 designation once we finish this grant award and get approved,” Dr. Van Sickels said.
In January 2026, UK Healthcare received a grant from the National Emerging Special Pathogens Training and Education Center (NETEC), the governing body of the National Special Pathogen System.
“It’s approximately half a million dollars to transform our institution,” Van Sickels said.
The funding has been used to run simulation drills in coordination with Lexington Fire, EMS, and the state health department. The grant also enabled UK Healthcare to upgrade its protective outerwear, with all seam points covered to provide additional protection. Ebola is transmitted through bodily fluids.
During a recent site visit and simulation, evaluators identified vulnerabilities in the facility’s previous protective suits.
“When we had our site visit and had our stimulation, for example, they said that the seams that we had on our old suits, you could pull and stretch, and that they were rather porous,” Van Sickels said.
Van Sickels had been working on the preparedness project since the beginning of the year.
Citing lessons learned from the 2014 West Africa Ebola epidemic, which spread to the U.S. and resulted in 4 cases and 1 death.
“Ebola 2014 taught a lot of hospitals in the US about high consequence infections, established what is now NETEC, the educating body for our country, uh, about high consequence pathogens,” Van Sickels said.
“We’re constantly wanting to push preparedness, uh, because that is the key to success in evading further outbreaks,” Van Sickels said.
UK Healthcare expects to complete its Level 2 Special Pathogen Treatment Center designation by the end of summer.
The Kentucky Wildcats have had some fits with West Virginia over the past few days, as the baseball team was sent home by the Mountaineers on Monday night. Now, they have flipped a Wildcat commit.
Bryian Duncan Jr., a Cario, Georgia native, committed to the Wildcats in March and has now flipped to West Virginia. The 3-star running back had a recent visit to Morgantown, then announced his commitment to the Mountaineers.
Duncan, a 5-foot-9 player who can play out wide and at running back, is the No. 60-ranked ATH in the nation and the No. 89 player in Georgia, according to 247 Sports. He’ll play in the Big 12 with the Mountaineers, giving himself a good opportunity to become a true gadget guy with legit speed.
This isn’t a big disappointment for the Wildcats, as they’ll collect nearly 10 commitments as the summer rolls on and already have a pretty loaded RB room for the class of 2027. Kelsey Gerald and Mason Ball are two tailbacks who have already pledged their commitment to the program.
Head coach Will Stein and Co. have been stellar on the recruiting trail as they have the 13th-best class overall and the fourth-ranked class in the SEC, according to 247 Sports. Expect the Cats to pick up a few more commits here soon and rise in the rankings.
LOUISVILLE, Ky. – With the summer months now on the horizon and rosters across college football now firmly set in stone, Louisville Cardinals On SI will provide way-too-early previews for each opponent on their 2026 schedule.
Concluding our way-too-early preview series, we have the Cardinals’ Governor’s Cup matchup at Kentucky:
Kentucky Wildcats
2026 Meeting: Saturday, Nov. 28 at Kroger Field in Lexington, Ky.
Last Meeting: Louisville won 41-0 on Nov. 29, 2025 at L&N Stadium in Louisville, Ky.
All-Time Series: Kentucky leads 19-17
It’s a new era in Lexington. Following a 13-year run that saw him become the winningest head coach in Kentucky history, Mark Stoops was fired following back-to-back losing seasons, including a 5-7 campaign this past year that ended with a 41-0 beatdown from the Cards. Oddly enough, taking over the Wildcats is Louisville native and former UofL quarterback Will Stein, who spent the previous three seasons on the west coast as the offensive coordinator at Oregon.
During his time with the Ducks, Stein developed a reputation as one of the top young offensive minds in the sport. He and new offensive coordinator Joe Sloan inherited an offense that ranked 103rd in the nation at just 341.1 yards per game, and they used the transfer portal to almost completely retool this unit.
There was hope that local product Cutter Boley would stay for the regime change. But after his transfer to Arizona State, Kentucky had to dip into the portal to land their quarterback, eventually landing Notre Dame’s Kenny Minchey. Considering that the Fighting Irish have had Sam Hartman, Riley Leonard and C.J. Carr during his time in South Bend, Minchey has exclusively been a backup, only going 23-of-29 for 212 yards through the air, with 96 yards and two scores on the ground. That being said, the former blue chip prospect has a high ceiling due to his talent level, and has a chance to thrive in his first opportunity as a starter. (Sound familiar?)
As far as Minchey’s cast of characters to throw to, Kentucky sports a good mix of transfers and returners here. Wide receiver Hardley Gilmore IV returns following a 28 reception/313 yards/one touchdown season, as does tight end Willie Rodriguez, who caught 23 passes for 310 yards and a score. LSU’s Nic Anderson (38 catches for 798 yards and 10 touchdowns in 2023 at Oklahoma) and Southern Utah’s Shane Carr (50 receptions for 744 yards and four touchdowns) also join the fold via the portal. Returner D.J. Miller (13/175/2) also has a chance to have a breakout season as well.
As far as the ground game, the Wildcats have potential here, albeit with a massive injury question. C.J. Baxter transferred in from Texas, and when healthy, has shown to be a special player when he touches the ball. However, following a true freshman campaign where he totaled 815 yards from scrimmage, he’s been limited to only nine games played over the last two seasons. Even if Baxter is healthy, expect Oklahoma transfer Jovantae Barnes to get some reps as well, as he rushed for 1,236 yards and 11 touchdowns in his first three years with the Sooners after taking a redshirt last season.
Putting a bow on this side of the line of scrimmage is an offensive line that, on paper, should take a step forward following a 2025 season where they allowed 2.42 sacks (105th in FBS) and 6.00 tackles for loss (103rd in FBS) per game. Tennessee LT Lance Heard, Ohio State LG Tegra Tshabola and Baylor C Colton Price are all regarded as four-star transfers, with Alabama RG Olaus Alinen also joining the fold and returner Malachi Wood stepping up at RT. Time will tell how they come together as a unit and how good they can be, but there’s no doubt that the UK offensive line should be much better.
The other side of the line of scrimmage is what Stoops had traditionally been known for, but Kentucky’s defense had a down 2025 season by their standards, giving up 374.2 yards (67th in FBS) and 26.4 points (75th in FBS) per game. Stein and new defensive coordinator Jay Bateman take over a defense that loses a lot of production and is relying heavily on multiple players stepping up, but does return a few impact guys.
The Wildcats were mostly mediocre in terms of their ability to get in the backfield last season, ranking 64th nationally in sacks (2.08 per game) and 52nd in tackles for loss, but do have some continuity on the defensive line. Sack leader Mi’Quise Humphrey-Grace (31 tackles, 7.0 for loss, 3.5 sacks, 1 fumble) is running it back, with fellow returners Lorenzo Cowan (13 tackles, 4.5 for loss, 2.5 sacks, 2 fumbles) and Sam Greene (25 tackles, 3.0 for loss) rounding out a good rotation at edge rusher. The middle of the line will mainly be anchored by Tavion Gadson (28 tackles, 4.0 for loss, 2.5 sacks), with Purdue’s Jamarrion Harkless (13 tackles, 2.5 sacks) and LSU’s Ahmad Breaux (19 tackles, 2.5 for loss) rounding out the primary rotation at tackle.
The middle of the field at linebacker is where Kentucky’s defense has the most questions. Sure, they do return Grant Godfrey, who was the ‘Cats’ seventh-leading tackler at 34 (along with 2.0 for loss). But returner Antwan Smith, plus Texas’ Elijah Barnes and Arkansas’ Tavion Wallace, combined for just 12 tackles last season at their respective schools. This trio will all have to take a collective step forward so that the burden at linebacker is not all on Godfrey.
The Wildcats struggled mightily when it came to defending the pass last season, allowing 239.9 passing yards per game for the 104th-ranked passing defense in the FBS. Heading into the 2026, their secondary should be able to hold their own despite losing a few impact players.
At cornerback, Nasir Addison (13 tackles in four games) Grant Grayton (16 tackles, 3 PBUs, 1 interception) and Terhyon Nichols (18 tackles, 5 PBUs) are all running it back, with Western Carolina’s Hasaan Sykes (49 tackles, 4.0 for loss, 2.0 sacks, 3 interceptions, 5 PBUs) entering the mix. Kentucky has a great one-two punch at safety in returner Ty Bryant (Team-best 76 tackles, 2.0 for loss, 4 interceptions) and Florida’s Jordan Castell (54 tackles, 2 interceptions), but much like at linebacker, their depth on the back end does not have a lot of production.
Overall, year one under Will Stein could have a high ceiling, but it also seems to have a low floor. Their offense will rely a lot on Minchey’s capabilities in his first year as a starter, and their defense is putting faith in a lot of guys to make progress in new and bigger roles. Louisville could either have a battle on their hands, especially with this game being in Lexington, or win their third straight blowout.
Sign up to our free newsletter and follow us on Facebook, Twitter/X and Instagram for the latest news.
More Cardinals Stories
(Photo of Will Stein: Michael Clevenger – Courier Journal / USA TODAY NETWORK via Imagn Images)
Follow
-
Tennessee2 minutes agoFranklin police ticket 13-year-old after e-bike crash, and a new Tennessee law brings more changes July 1
-
Texas7 minutes agoNational Democrats aim to flip 12 Texas House seats under newly expanded target list
-
Utah14 minutes agoUtah’s wonderful women took Kevin O’Leary to school over his…
-
Vermont17 minutes agoHundreds of housing units in the works at closely-watched project in Burlington’s South End – VTDigger
-
Virginia22 minutes agoCrews put out house fire in Bristol, Virginia
-
Washington29 minutes agoDeputies use drone to catch man wanted for damaging car in Washington County
-
Wisconsin32 minutes agoRacing Sausages, Wienermobile, ancient canoes all call this place home
-
West Virginia37 minutes agoTop Bike Adventures in West Virginia’s Mountain Playground
