The TPPCA's Burden-Shifting Architecture: A Doctrinal Look at Tennessee's Anti-SLAPP Statute

The Tennessee Public Participation Act (TPPCA), enacted in 2019 and codified at **Tenn. Code Ann. § 20-17-101 et seq.**, established Tennessee's modern anti-SLAPP framework. The statute provides an expedited mechanism for the dismissal of suits that target constitutionally protected speech on matters of public concern. Its structural design — a two-step burden-shifting analysis paired with fee-shifting for prevailing defendants — has reshaped the strategic calculus for both plaintiffs and defendants in speech-implicating cases filed in Tennessee.

This piece sets out the doctrinal architecture of the TPPCA as it has been applied since enactment.

## The structural design

The TPPCA's central provision is **§ 20-17-104**, which establishes the burden-shifting analysis. The statute permits a party to file a petition to dismiss within sixty days after service of the challenged claim. The petition asserts that the suit is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association.

The analysis then proceeds in two stages.

**Step one: the movant's prima facie burden.** The party invoking TPPCA protection — typically the defendant in the underlying suit — must establish a prima facie case that the challenged speech falls within the statute's coverage. The statute defines covered speech broadly to include statements on matters of public concern made in connection with public proceedings or in public fora.

**Step two: the plaintiff's burden to demonstrate viability.** If the movant carries the prima facie burden, the burden shifts to the plaintiff to establish a prima facie case for each essential element of the underlying claim. A failure to meet this burden results in dismissal.

The two-step structure embodies a deliberate calibration: it provides an expedited exit for genuinely meritless speech-targeting suits while preserving meritorious claims that survive the prima facie test.

## What "matter of public concern" means

The TPPCA's threshold coverage question — whether the challenged speech addresses a matter of public concern — has generated significant interpretive caselaw. Tennessee courts have read the threshold broadly, consistent with the statute's stated purpose of protecting public participation.

Speech addressing the operation of public institutions, the conduct of public officials in their public roles, and matters of community concern has generally fallen within the statute's protection. Purely private disputes — for example, defamation claims arising from communications between two private parties about purely personal matters with no connection to broader public interest — typically have not.

The threshold inquiry is contextual rather than categorical. Courts examine the speech's subject matter, the speaker's identity, the forum in which the speech occurred, and the connection to broader public discourse.

## The fee-shifting provision

The TPPCA's fee-shifting provision at **§ 20-17-107** is structurally consequential. A prevailing defendant on a TPPCA petition is entitled to recover the costs and reasonable attorney's fees associated with the petition. The provision functions as both a deterrent against the filing of speech-targeting suits and a remedial mechanism for defendants forced to defend them.

The provision's mandatory character — "shall award" rather than "may award" — distinguishes the TPPCA from fee-shifting regimes that vest discretion in the trial court. Once a defendant prevails on a TPPCA petition, the fee-shifting consequence follows.

## The interlocutory appeal framework

Decisions on TPPCA petitions are subject to interlocutory appellate review under the statute's procedural framework. This appellate posture is significant for two reasons. First, it reflects the legislature's view that anti-SLAPP determinations warrant immediate appellate scrutiny rather than awaiting final judgment. Second, it preserves the protective purpose of the statute: a defendant erroneously denied TPPCA dismissal at the trial court would otherwise be forced to continue defending the very suit the statute is designed to terminate.

The Tennessee appellate courts have used this jurisdictional channel to develop the body of TPPCA caselaw that now guides trial courts in applying the framework.

## Open questions

Several doctrinal questions in TPPCA application remain unsettled:

- The interaction between TPPCA dismissal and the procedural protections for defamation-per-se claims, where damages are presumed
- The application of the burden-shifting framework in mixed-motive cases, where the suit arguably targets both protected and unprotected conduct
- The scope of "exercise of the right to petition" coverage where the petition is to a non-governmental body
- The handling of TPPCA petitions in cases removed to federal court, where the *Erie* analysis governs the statute's continued applicability

These questions form the developing edge of Tennessee anti-SLAPP doctrine.

## The Black Lamp frame

TPF tracks SLAPP litigation as it intersects with the firm's investigations and cybersecurity practice. Social-media discovery, communications preservation, and digital evidence verification often play central roles in modern SLAPP defense, where the underlying speech occurred in online fora and the discovery posture of the case depends on accurate digital-evidence handling.