Defendants who face lawsuits filed in retaliation for exercising their First Amendment rights may obtain a speedy dismissal under anti-SLAPP laws on the books in 30 states and the District of Columbia. The laws aim to prevent the use or abuse of strategic litigation against public participation (SLAPP) that would chill protected speech. But circuit courts are divided as to whether those laws apply in federal court.
In Klocke v. Watson, a three-judge appellate panel unanimously held that the protections of the Texas Citizens Participation Act (TCPA), the Lone Star State’s anti-SLAPP statute, are not available to litigants in federal diversity actions. The U.S. Court of Appeals for the Fifth Circuit found the TCPA conflicts with Federal Rules of Civil Procedure 12 and 56 governing summary judgment and dismissal motions and therefore cannot be applied in federal court.
ABA Section of Litigation leaders say the Klocke holding is significant because it provides a way for plaintiffs to avoid dismissal of their lawsuits subject to anti-SLAPP challenges by filing suit in federal court, thereby increasing the likelihood that litigants will engage in forum shopping. Yet, they add that the decision is but the latest in a growing canon of case law that highlights the intersection of free speech safeguards and federal civil procedure. While the opinion in Klocke resolved “an issue that has brewed for several years” in the Fifth Circuit, it magnified a split that pits the Fifth, Tenth, Eleventh, and D.C. Circuits against the First, Second, and Ninth Circuits which have applied anti-SLAPP statutes in federal actions.
The case arose when Thomas Klocke, a University of Texas at Arlington student, committed suicide after he was refused permission to graduate following allegations by classmate Nicholas Watson that he had engaged in homophobic harassment. Klocke’s estate sued Watson for defamation and defamation per se, and the university for Title IX due process violations. Watson moved to dismiss the claims under the TCPA.
Klocke’s estate responded that the TCPA was inapplicable in federal court and did not address the case on its merits. The U.S. District Court for the Northern District of Texas overruled that objection, granted Watson’s motion to dismiss, and awarded Watson attorney fees and sanctions pursuant to the TCPA.
Klocke’s estate appealed the case to the Fifth Circuit, arguing that the TCPA’s provisions levied evidentiary weighing requirements not found in federal procedural rules, and should therefore not apply. The Fifth Circuit agreed, reversing the district court’s judgment and remanding the case for further proceedings. Klocke’s case against the university did not survive summary judgment and appeal.
The Texas legislature enacted the TCPA in 2011 to discourage meritless lawsuits intended to silence protected speech by providing a means for quick dismissal. Under the statute at the time Klocke’s case was adjudicated, defendants could seek dismissal within 60 days of service of any claim that was broadly “related to” the exercise of the right of free speech, petition, or association. A defendant need only show “by a preponderance of the evidence” that the action infringed on his or her First Amendment rights. The statute shifts the burden to the plaintiff to establish by “clear and specific evidence a prima facie case for each element of the claim in question.” It also provides several procedural benefits to movants, including a stay of most discovery while a motion to dismiss is pending and a mandatory award of attorney fees and costs to the movant if he or she prevails.
But this framework impermissibly “imposes additional requirements beyond those found in Federal Rules 12 and 56,” the appellate court said. Rule 12(b)(6), under which a federal court may dismiss a case for failure to state a claim, is not an impossible barrier to overcome and requires no evidentiary support, the court noted. Similarly, Rule 56, addressing summary judgment, does not necessitate weighing evidence to determine the truth of a matter, but rather asks a judge to decide whether there is a genuine issue for trial. In contrast, the TCPA demands judicial weighing of evidence using a standard that “lies somewhere between the state’s pleading baseline and the standard necessary to prevail at trial,” all while circumscribing predecisional discovery, the appellate court said.
In siding with Klocke, the appellate court determined that the TCPA’s framework creates no substantive rights but “merely provides a procedural mechanism for vindicating existing rights.” The decision settled a split among Texas federal district courts over how to construe the statute under the Erie doctrine, which prescribes that federal courts must apply state substantive law but federal procedural law in diversity cases.
The appellate panel found persuasive a 2015 D.C. Circuit opinion, Abbas v. Foreign Policy Group, LLC, authored by now-Justice Brett Kavanaugh, ruling that the District of Columbia’s anti-SLAPP law was inapplicable in federal court. The Abbas court determined the anti-SLAPP statute conflicted with the federal rules by “setting up an additional hurdle” for a plaintiff to reach trial. It also followed the U.S. Supreme Court’s reasoning in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., which held that a federal court exercising diversity jurisdiction should not apply a state law if a Federal Rule of Civil Procedure answers the same question as that law.
Applying those same principles to the TCPA, the Fifth Circuit declined to uphold it as binding on federal courts. It found that the burdens the statute imposed collided with Rules 12 and 56 and answered the same question as those rules: under what circumstances must a court dismiss a case before trial? The court rejected Watson’s argument that the TCPA’s framework neither displaced the federal rules nor caused them to “cease to function,” as the First Circuit had previously determined in upholding Maine’s anti-SLAPP statute.
Watson’s reliance on the First Circuit’s opinion erroneously implied that the federal rules impose only minimum procedural requirements that state rules may build upon, the Fifth Circuit said. The appellee’s argument was also out of tune with an Eleventh Circuit decision that found Georgia’s anti-SLAPP statute inapplicable because the federal rules in question were “sufficiently broad to control the issue before the court,” the appellate panel noted.
The ruling in Klocke broke with the Fifth Circuit’s practice of declining to decide whether, and to what extent, the TCPA applied in federal court. It also ran counter to its own 2009 decision in Henry v. Lake Charles American Press, L.L.C., in which the court applied a “nominally procedural” Louisiana anti-SLAPP statute. However, the court concluded it was not bound by Henry because the TCPA imposed “higher and more complex preliminary burdens” and more “rigorous procedural deadlines” than did Louisiana’s law. Moreover, the Henry court did not have the benefit of the Shady Grove decision, the appellate court said.
But the Texas legislature amended the TCPA while Klocke’s case was pending, and Section of Litigation leaders note that it is now uncertain how its revised construction or that of other anti-SLAPP statutes like the one at issue in Henry may be treated in federal court. “There are a lot of open questions,” says Laura L. Prather, Austin, TX, executive director of the ABA Forum on Communications Law. “Does the Fifth Circuit’s decision in Klocke impact the Henry precedent? Is Texas’s amended legislation precluded in federal court?” she asks.
The amended version of the TCPA does not contain a “preponderance of the evidence” requirement, instead stating a movant need only “demonstrate” the statute’s applicability. And while the previous version of the TCPA allowed defendants to seek dismissal of lawsuits “related to” an individual’s exercise of the right of free speech, petition, or association, the new statute requires the challenged lawsuit to be more narrowly “based on” or “in response to” the exercise of those rights.
But whether the changes constrain the TCPA’s scope remains to be seen. “Because the reforms include changes to the weighing of evidence, which the Fifth Circuit heavily relied on in its ruling, there is a big gray area going forward in terms of whether some of the problems that existed under the original act will persist,” says Ashley J. Heilprin, New Orleans, LA, cochair of the Section’s Pretrial Practice & Discovery Committee’s Distance Learning Subcommittee. “Presumably, the Fifth Circuit knew the Texas legislature revised the statute but chose not to address that in their opinion,” she adds.
For practitioners, the most pressing issue seems to be the opportunity for forum shopping that the Klocke decision creates. Klocke effectively bars federal court defendants from moving for early dismissal under the TCPA, including those defendants that remove a case to federal court on the basis of diversity jurisdiction. “The Klocke decision has the adverse impact of increasing the type of forum shopping the Supreme Court’s Erie decision sought to avoid,” Heilprin observes.
That is a “big concern,” notes Prather, observing that it points to a potential need for a federal law addressing the matter. “Although the U.S. Supreme Court has had two opportunities to take up the issue of whether anti-SLAPP statutes apply in federal court, it has denied certiorari in both instances,” she states. “The law is inconsistent across the country and it will take a long time to work itself out. Each state’s statute is so unique that the Supreme Court will have to evaluate whether it is worth considering the issue globally,” Prather concludes.
