The Use (or Not) of Anti-SLAPP Laws in Federal Court

There is little disagreement that people should be free to exercise their First Amendment rights without fear of retaliatory litigation. Such expression-chilling litigation is known as a “Strategic Lawsuit Against Public Participation” or “SLAPP” suit because its core purpose is to quell public discussion that a plaintiff considers harmful or inconvenient.

States began enacting anti-SLAPP statutes in the early 1990s to protect constitutional expression. These various laws are not identical, but each of them includes one operative feature—a mechanism for the early-stage dismissal of a complaint that arises from the defendant’s exercise of constitutionally protected rights.

Stormy Seas in Federal Courts

A defendant who seeks to use an anti-SLAPP law to dismiss a claim filed in federal court may be in for rough sailing. The Federal Rules of Civil Procedure already have provisions governing the early dismissal of cases in the form of Rules 8, 12, and 56. The notion is that state legislatures should not be in the business of telling federal courts how and when to dismiss cases. Unfortunately, however, our federal courts are far from uniform in how they resolve this tension.

California was the first state to enact an anti-SLAPP statute, and it authorizes a “special motion to strike” (akin to a motion to dismiss) any lawsuit that arises from a person’s exercise of her constitutional right to petition or free speech. In United States ex rel. Newsham v. Lockheed Missiles & Space Co., the U.S. Court of Appeals for the Ninth Circuit determined that the California anti-SLAPP statute “can exist side by side” with the Federal Rules, “with each controlling its own intended sphere of coverage without conflict.” That court held that the Erie doctrine compelled enforcement of this California statutory protection.

Other federal courts see things differently. In Klocke v. Watson, the U.S. Court of Appeals for the Fifth Circuit held that the Texas anti-SLAPP law is not applicable in federal courts because it includes provisions that required the court to weigh evidence in a manner that conflicts with Rules 12 and 56. In essence, the Klocke court held that the Texas legislature could not modify the process by which a federal court determines whether a case is subject to early dismissal or summary adjudication.

A year after Klocke, in Clifford v. Trump, the Ninth Circuit got a second chance to consider whether state anti-SLAPP laws could hold sway. In a twist, however, the Clifford district court had applied the Texas anti-SLAPP statute because Texas provided the substantive law of decision for that case. The Ninth Circuit acknowledged the Klocke decision but held that its reasoning “cannot be reconciled with our circuit’s anti-SLAPP precedent,” which required the application of the Texas anti-SLAPP statute. This circuit fidelity logic is sound, but it portends inconsistency from one federal circuit to another.

Sailing from One Port to Another

Consider a case filed in a particular federal court in which the defendant intends to assert two positions. First, the defendant believes the claims should be dismissed pursuant to an anti-SLAPP statute, and her good fortune has put her in a federal circuit that applies such statutes. But the defendant also believes that the case has been filed in an improper venue, so she also intends to move to dismiss or transfer on that basis. However, if the defendant is correct in her improper forum argument, the most likely place for transfer is to a federal court that does not enforce anti-SLAPP statutes. In such a case, the defendant would be forced to litigate in an improper forum for the sake of preserving her rights under the anti-SLAPP statute.

A version of this problem arose in Corsi v. Infowars, LLC. The plaintiff sued for defamation in a District of Columbia federal court, and the defendant moved to dismiss based on, among other things, improper venue. The court determined that venue was proper in the Western District of Texas, but the defendant asked the court to dismiss, rather than transfer, because of the Fifth Circuit’s refusal to apply anti-SLAPP laws. The court refused to do so because dismissal would have prejudiced the plaintiff in that his claim would be time barred. Instead, the court transferred the case to the Western District of Texas, torpedoing the defendant’s ability to seek relief under any anti-SLAPP law.

Safe Harbor from the Supreme Court?

The Erie doctrine and the Rules of Decision Act operate best when there is clarity on whether an issue is substantive or procedural. But they struggle when an issue presents some of both. Anti-SLAPP laws unquestionably protect a defendant’s substantive First Amendment rights, but they do so in a way that arguably infringes on a federal court’s procedures for early dismissal of claims. So varying approaches from different federal circuits might be unsurprising.

Still, they cry out for Supreme Court resolution. There is an unambiguous circuit conflict directly affecting a defendant’s right to seek early dismissal of a lawsuit that is intended to muzzle First Amendment expression. Moreover, the vagaries from circuit to circuit undercut the right to a proper venue. A defendant should not be put to a choice of either proceeding in a court of improper venue or being transferred to a court that would eliminate her rights under an anti-SLAPP statute. This conundrum also encourages abusive forum shopping. A defamation plaintiff, for example, could choose any venue she desires, knowing that the defendant will likely acquiesce to it if the alternative is a transfer to a circuit that refuses to apply anti-SLAPP laws in federal courts.