Currently, more than 30 states have adopted laws aimed to protect First Amendment rights from so-called “SLAPP” suits. SLAPP stands for “strategic lawsuits against public participation,” and SLAPP suits are lawsuits intended to silence or suppress free speech and other constitutionally protected activities. A classic example of a SLAPP suit would be an oil company suing an environmental non-profit for defamation after the non-profit accused the oil company of being a polluter.
Additionally, several states have recently also passed or introduced legislation seeking to expand protections against SLAPP suits. In New York, a broadened anti-SLAPP statute was enacted on November 11, 2020. Washington state passed a new anti-SLAPP law on May 21, 2021 (SB 5009), with the state legislatures of Missouri (HB 1151), Kentucky (HB 1321), Indiana (HB 1459), and Iowa (HF 456) also looking to pass new anti-SLAPP legislation.
Conversely, although an increasing number of states have adopted anti-SLAPP laws, federal courts remain split on the issue of whether state anti-SLAPP laws are applicable in federal courts. A number of federal district and appellate courts have reached inconsistent holdings as to whether pleading requirements of state anti-SLAPP laws conflict with those of the Federal Rules of Civil Procedure. Because the implications of these inconsistencies are broad and far-reaching, this article analyzes (i) the background of and recent developments relating to California’s anti-SLAPP statute; (ii) the recent adoption and development of anti-SLAPP legislation in other states; and, (iii) the split among federal courts as to the applicability of state anti-SLAPP laws.
II. California’s Anti-SLAPP Statute and Recent Developments
A. Unique Procedural Mechanisms Available Under California’s Anti-SLAPP Statute
As a means to combat nuisance lawsuits that are intended to chill free speech, state legislatures have introduced legislation offering increased protection from those suits. California became the first state to introduce anti-SLAPP legislation in 1992, and by far has the most robust body of anti-SLAPP case law. California’s anti-SLAPP law provides for a “screening mechanism” by which the plaintiff who brings an action arising out of protected speech or petition activity, at the outset of the SLAPP suit, must “make a prima facie showing [verified under oath] which would, if proved at trial, support a judgment in [the plaintiff’s] favor.” Wilcox v. Super. Ct., 27 Cal. App. 4th 809, 823 (1994); Cal. Civ. Proc. Code § 425.16(b)(1). Specifically, once the moving defendant has demonstrated that the plaintiff’s cause of action arises from “protected” speech or activity, “the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim.” Kyle v. Carmon, 71 Cal. App. 4th 901, 907 (1999).
This screening process, in effect, functions much like a motion for summary judgment, with the defendant being able to challenge the merits of a plaintiff’s case. One difference, however, is that the filing of a motion to strike under the anti-SLAPP statute in California automatically stays discovery. See Hewlett-Packard Co. v. Oracle Corp., 239 Cal. App. 4th 1174, 1185 (2015); Cal. Civ. Proc. Code § 425.16(g). Another difference is that, unlike a motion for summary judgment, an anti-SLAPP motion to dismiss places the burden on a plaintiff to demonstrate that they possess a “legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.” College Hospital v. Super. Ct., 8 Cal. 4th 704, 718-719 (1994). If plaintiff is unable to satisfy their burden, then defendant is entitled to dismissal of the SLAPP suit, and an award of the attorneys’ fees and legal costs incurred defending the action. See Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1121-1123 (1999); Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 644 (1996); Cal. Civ. Proc. Code § 425.16(c). This “reverse” standard, which places the burden of proof on the plaintiff is intended to (1) allow defendants to obtain quick dismissals of claims arising out of certain “protected” activities, enumerated in California’s anti-SLAPP statute; and (2) discourage lawsuits filed with the intent to chill free speech (i.e. First Amendment-related conduct) by imposing the threat of significant legal fees and costs required to successfully oppose the motion so early in litigation (as well as the risk of paying for the other party’s legal fees and costs).
In addition, unlike with a motion for summary judgment, a defendant is entitled to an automatic right of appeal for the denial of an anti-SLAPP motion, and a stay of all trial court proceedings affected by the motion. Hewlett-Packard, 239 Cal. App. 4th at 1185-86. “This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.” Id. at 1185. Because of the heightened protections for defendants bringing motions to strike under the anti-SLAPP statute, these motions are subject to potential abuse. As one appellate court has discussed, the statute provides a “free time-out” from further litigation in Court “by entitling the unsuccessful movant to immediately appeal the denial of such a motion,” even a relatively weak motion “which wholly lacks any merit.” Id. at 1184-85.
B. Elements of a Motion To Strike Under Section 425.16(b)
California courts apply a two-pronged test in evaluating whether to grant an anti-SLAPP motion to strike. Under the first prong, defendant must establish that the activity giving rise to a plaintiff’s suit arises from one of the following four specific categories that the California legislature defines as “protected” activity:
- Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.
- Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding authorized by law.
- Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
- Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
If the defendant establishes that a claim arises out of protected activity, then the burden shifts to the plaintiff to demonstrate the claim contains minimal merit. If the plaintiff does not, the claim will be dismissed.
California courts have broadly construed these areas of protected activity. For example, in Wilson v. CNN, the California Supreme Court recently observed that “to insulate the exercise of free speech rights against chilling litigation, the Legislature has defined protected activity to include not only the act of speaking, but ‘any other conduct in furtherance of the exercise of constitutional speech rights on matters of public interest.’” Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 893 (2019). (Interestingly enough, though, on July 29, 2021 the California Supreme Court drew a line between speech, which it considered protected, and actions arising from the speech, which it considered to be unprotected—thereby limiting the scope of § 425.16(b). Bonni v. St. Joseph Health Sys., 11 Cal. 5th 995, 1026 (2021).) The breadth of anti-SLAPP statutes across states vary, but like California’s statute, most other anti-SLAPP laws provide defendants with protections for speech made in any forum, as well as a mandatory award of costs and attorney fees for successful defendants. Most, but not all, states with anti-SLAPP legislation explicitly grant protection for speech made in connection with any issue of public interest or concern. Moreover, states are increasingly reforming and broadening the scope of anti-SLAPP legislature; New York, for example, recently updated its anti-SLAPP statute to grant protection for “any communications in a public place open to the public or a public forum in connection with an issue of public interest.”
III. Federal Courts Wrestle with Applicability of Anti-SLAPP Laws
Federal courts are in conflict on whether state anti-SLAPP laws provide primarily substantive, or procedural remedies. If considered procedural, anti-SLAPP laws would conflict with Federal Rules of Civil Procedure and therefore be inapplicable in federal court. For more than two decades, the Ninth Circuit has held that the California anti-SLAPP law is primarily substantive and therefore does apply in federal court. See, e.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999) (noting that California’s anti-SLAPP statute and the Federal Rules “can exist side by side . . . without conflict”) (quotation omitted).
Recently, however, the Second Circuit held that California’s anti-SLAPP statute did not apply in federal court. See La Liberte v. Reid, 966 F.3d 79, 87-88 (2d Cir. 2020). There, the Court held that California’s anti-SLAPP statute was inapplicable in federal court because it conflicts with Federal Rules of Civil Procedure 12 and 56. Id. According to the Second Circuit, the question that federal courts must answer in deciding whether state anti-SLAPP statutes apply in federal courts is “whether ‘a Federal Rule of Civil Procedure answer[s] the same question as the [special motion to strike].’” Id. at 87 (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (alteration in original)). If so, the Federal Rule governs, unless it violates the Rules Enabling Act. Id.
The Second Circuit’s La Liberte decision heavily relied on the Eleventh Circuit’s recent holding in Carbone v. Cable News Network, Inc. that the pleading standard set forth by California’s anti-SLAPP statute “abrogates [the already-established federal court pre-trial pleading] entitlement . . . by requiring the plaintiff to establish that success is not merely plausible but probable.” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1353 (11th Cir. 2018). The Carbone decision also found that California’s anti-SLAPP statute conflicted with Federal Rule 56, which permits summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.
The Ninth Circuit, however, remains unpersuaded by the other circuits. In Clifford v. Trump, the Ninth Circuit held that Texas’s anti-SLAPP law did in fact apply in federal court. Clifford v. Trump, 818 Fed. App’x 746, 747 (9th Cir. 2020). The court held that there was no contradiction with state and federal law. That decision contradicted a recent Fifth Circuit ruling in Klocke v. Watson, where the court held “that the TCPA does not apply to diversity cases in federal court.” Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019). Specifically, the Fifth Circuit’s analysis focused on whether the Federal Rules of Civil Procedure [and Texas’s anti-SLAPP statute] “‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of litigation.” Id. at 245. The Fifth Circuit opined that Texas’s anti-SLAPP statute and Federal Rules of Civil Procedure Nos. 12 and 56 do in fact answer the same question, namely “the circumstances under which a court must dismiss a case before trial.” Id. The court also found that Texas’s anti-SLAPP statute imposed “additional procedural requirements not found in the federal rules.” Id. “Because the [Texas anti-SLAPP statute’s] burden-shifting framework imposes additional requirements beyond those found in [the Federal Rules of Civil Procedure] 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.” Id. The court in Clifford addressed this contradiction, noting “[T]he reasoning of the Fifth Circuit’s opinion cannot be reconciled with our circuit’s anti-SLAPP precedent, compare Newsham, 190 F.3d at 972 (‘[T]here is no indication that [Federal Rules of Civil Procedure] 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims.’) with Klocke, 936 F.3d at 247 (‘Rules 8, 12, and 56 provide a comprehensive framework governing pretrial dismissal and judgment.’).” Clifford, 818 Fed. App’x at 747. The court in Clifford further reasoned that they were bound to follow their own precedent – which “required [the court] to apply the [The Texas Citizens Participation Act],” commonly referred to as the Texas anti-SLAPP statute. Id.
A similar split exists amongst U.S. District Courts, which have, in the past several years, issued a string of inconsistent rulings as to whether state anti-SLAPP statutes apply in federal diversity cases. Compare Harrington v. Hall Cnty. Bd. of Supervisors, 2016 WL 1274534 (D. Neb. Mar. 31, 2016) (finding a statute providing for attorneys’ fees and costs under Nebraska’s anti-SLAPP statute substantive, and therefore consistent with the Federal Rules of Civil Procedure, thereby allowing for the filing of a motion for attorneys’ fees under the state anti-SLAPP statute), with Unity Healthcare, Inc. v. Cnty. of Hennepin, 308 F.R.D. 537 (D. Minn. 2015) (finding that Minnesota’s anti-SLAPP statute was inapplicable because it conflicted with Federal Rule of Civil Procedure 56), appeal dismissed, 2016 WL 11339506 (8th Cir. 2016).
These split decisions within the federal courts have led to further confusion and continued forum shopping – which courts may find objectionable, principally, because such “shopping” between courts may offend traditional notions of justice and, as a practical matter, deference to particular courts over others may result in a backlog of cases in these same courts, thereby delaying the timely dispensation of justice in non-related cases.
Amid all of this confusion at the federal level, the U.S. Supreme Court has, surprisingly, refused to weigh in on the controversy. Rather, the Supreme Court has persistently refused to hear cases involving state anti-SLAPP laws. See, e.g., Yagman v. Edmondson, 723 Fed. App’x 463 (9th Cir. 2018), cert. denied, 139 S. Ct. 823 (2019); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 897 F.3d 1224 (9th Cir. 2018), cert. denied, 139 S. Ct. 1446 (2019). As recently as February 2021, the Supreme Court again refused to address the issue, denying review in the Clifford v. Trump case, which presented the conflict between the Ninth Circuit and the Fifth Circuit’s holdings on the applicability of Texas’s anti-SLAPP law in federal diversity actions. It should therefore be expected that federal courts will continue to issue inconsistent rulings on the matter, leading to further forum shopping, as state legislatures continue to adopt more and broader anti-SLAPP legislature, thereby giving rise to a greater number of anti-SLAPP motions being brought in federal diversity cases.