ANTI-SLAPP LAWS 1

Anti-SLAPP Laws and Their Inconsistent Implementation in Federal Court

By Jamie Harvey

mayaharvey@unomha.edu

This research paper was written for a Communication Law & Policy course in Fall 2022. The

author is a Journalism Media Communications major undergraduate in the College of

Communication, Fine Arts, and Media at the University of Nebraska at Omaha and a Political

Science major undergraduate in the College of Arts and Sciences at the University of Nebraska at

Omaha.

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Anti-SLAPP Laws and Their Inconsistent Implementation in Federal Court

Brief Legal History

Defamation, or "the publication of material that would tend to hold one up to hatred,

ridicule contempt or even scorn," comes in two forms: libel (written or printed defamation) and

slander (spoken defamation) (Youm, 2022, p. 82). To win a defamation case, a plaintiff must

prove that the defendant made a non-privileged false and defamatory statement of fact to a third

party that caused the plaintiff actual injury (Youm, 2022, p. 85). Additionally, as established

in New York Times Co. v Sullivan, if the plaintiff is a public figure or public official, they are

required to meet the actual malice standard and prove that the defendant either knew the

statement was untrue or that the defendant showed a reckless disregard for the truth (Youm,

2022, p. 90).

This framework attempts to strike a balance between the importance of reputation in

social, political, and economic life and Americans' first amendment free speech rights. However,

some bad actors intentionally misuse this framework to silence or intimidate critics. Because of

the costly and time-consuming nature of defending against a civil lawsuit in America, "libel

remains an occupational hazard for professional and non-professional communicators" (Youm,

2022, p. 81). Strategic lawsuits against public participation or SLAPP suits are defamation suits

where the plaintiff's "goal is not to prevail on the merits but to harass defendants and chill free

speech" (Toscano, 2021, p. 1705). In order to mitigate the effects of SLAPP suits, many states

have created anti-SLAPP laws that seek to allow defendants to get cases dismissed quicker, limit

the expensive discovery process, and recoup attorneys' fees (Toscano, 2021, p. 1706). One-third

of states have anti-SLAPP statutes, but the content and scope of those statutes and the type of

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speech they protect vary from state to state. Anti-SLAPP laws typically include a special motion

to dismiss, which allows litigants who can show “that their acts are considered protected under

the statute” to shift the burden "to the filer of the suit to show that they are likely to prevail on

their claim” (Sopena, 2022, p. 839). If the filer cannot meet that burden, their claim can be

dismissed under the special motion. The purpose of this paper is to explore recent case law and

law reviews relating to the inconsistent application of anti-SLAPP laws in federal court.

Recent Case Law

Appellate courts disagree on if Anti-SLAPP statutes are applicable in federal court cases.

The Second, Fifth, Eleventh, and D.C. circuits have found that anti-SLAPP laws are not

applicable in federal court due to their perceived conflict with Federal Rules of Civil Procedure

12 and 56. Appellate judges in the Ninth and Fifth circuit courts did not find a conflict between

the Federal Rules of Civil Procedure and anti-SLAPP laws and have applied those laws in federal

cases.

In La Liberte v. Reid (2020) The United States Court of Appeals for the Second Circuit

decided that California's anti-SLAPP law was not applicable in federal court. Plaintiff Roslyn La

Liberte sued defendant MSBC host Joy Reid for defamation over personal social media posts

implying that the plaintiff had yelled specific racist remarks at a non-white teenager in a photo

posted online by a third-party activist. The teenager publicly confirmed that the two were having

a civil discussion in the image. The defendant moved to dismiss the case under California's anti-

SLAPP statute, which allows for defamation cases to be dismissed and for defendants to be

awarded attorney’s fees if the court finds that there is not a "probability that the plaintiff will

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prevail on the claim" (Cal. Civ. Proc. Code § 425.16, 2019). The defendant argued that La

Liberte was a limited-purpose public figure and that because her lawsuit did not allege actual

malice, there was no probability the plaintiff would win.

The district court sided with the defendant and dismissed the case, awarding her

attorney's fees. The La Liberte appealed the case, arguing that she was not a limited-purpose

public figure and that California's anti-SLAPP law conflicts with the Federal Rules of Civil

Procedure and is not applicable in federal court. The court sided with the appellant on both

points, the latter setting a precedent that severely limited the power of anti-SLAPP laws in the

second district. Federal Rules of Civil Procedure 12 enumerates how defendants may make a

motion to dismiss. These rules allow for motions to dismiss when the plaintiff does not present

"enough facts to state a claim to relief that is plausible on its face" (Bell Atl. Corp. v.

Twombly, 2007, p. 570). In his opinion, Judge Dennis Jacobs asserts that the California statute

conflicts with Rule 12 because it establishes a burden of probability beyond the established

burden of possibility.

Judge Jacobs states that California's anti-SLAPP law also "conflicts with Rule 56," which

allows for summary judgment only in cases with no genuine disputes over matters of fact (La

Liberte v. Reid, 2020, p. 11). This ruling found that there was no legal mechanism to enforce

California's anti-SLAPP law (and all other anti-SLAPP laws in the second circuit) under the

Federal Rules of Civil Procedure, and thus the law is inapplicable.

In Abbas v. Foreign Policy Group (2015), the United States Court of Appeals for the

District of Columbia considered if D.C.'s Anti-SLAPP Act was applicable in federal court, and in

his opinion, Justice Brett Kavanaugh concisely stated that "the answer is no." Plaintiff Yasser

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Abbas sued the Foreign Policy Group for defamation over an article on the group's website

alleging that the plaintiff and his brother, sons of a Palestinian leader, enriched themselves at the

expense of common Palestinians and the American government. A D.C. district court dismissed

the case based on the Anti-SLAPP Act, and Abbas appealed. Judge Kavanaugh asserted that the

"Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial

judgment to defendants in cases in federal court," and that federal courts must apply the rules of

civil procedure over anti-SLAPP laws (Abbas v. Foreign Policy Group, 2015, p. 8). However, the

court of appeals upheld the district court's decision to dismiss the case based on Rule 12 rather

than on the Anti-SLAPP Act.

In Clifford v. Trump (2020) the Ninth Circuit Court of Appeals decided that the Texas

Citizens Participation Act (TCPA), Texas’s anti-SLAPP law, applies in federal court. Plaintiff

Stephanie Clifford posted a composite sketch of a man who she alleges threatened her in order to

keep her from speaking with a magazine about her past relationship with Donald Trump. Trump

then retweeted a photo of the sketch next to a photo of her ex-husband and alleged that she was

lying. Clifford filed a defamation suit against Trump, which the district court dismissed under the

TCPA.

In his opinion, Judge Sidney Runyan Thomas argued that the Ninth Circuit’s precedent of

applying state anti-SLAPP laws in federal cases under the Erie doctrine established by United

States ex rel. Newsham v. Lockheed Missiles & Space Co (1999) still stands. Erie establishes that

when federal courts have jurisdiction because all of the defendants and all of the plaintiffs are

residents of different states (a principal called diversity jurisdiction), the courts must apply

substantive state laws in addition to federal procedural law unless there is a direct collision

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between the two. United States ex rel. Newsham v. Lockheed Missiles & Space Co (1999) found

that, in the Ninth Circuit, anti-SLAPP laws do not necessarily collide with federal rules of

procedure because “the prior application of the anti-SLAPP provisions” would not interfere with

a later Rule 12 motion to dismiss or a Rule 56 summary judgment (p. 27). The Ninth Circuit

established that although Federal Rules 12 and 56 share the same general purpose as anti-SLAPP

laws’ special motion to strike, the special motion to strike is a distinct legal tool created by

substantive state law separate from, and hence not reliant on, the Federal Rules of Procedure.

Because of this prior precedent, the appeals court upheld the application of the TCPA, agreeing

with the district court's assessment "that the complaint failed to plausibly allege an actionable

false statement of fact," upholding the dismissal (Clifford v. Trump, 2020, p. 2). The case's writ

of certiorari was denied in 2021, so the disconnect between the Ninth Circuit and the rest of the

nation on the application of anti-SLAPP statutes will likely remain.

Law Review Analysis

Lina Dayem (2021) argues that federal appeals courts’ differing interpretations of the Erie

doctrine applicability of state anti-SLAPP laws can be attributed to the Supreme Court’s

fractured decision in Shady Grove Orthopedic v. Allstate Insurance Co. (2010), which resulted in

“two justices articulating competing tests to determine whether a rule is procedural or

substantive” (Dayem, 2021, p. 2). With the exception of the Ninth Circuit, which directly applies

the Erie doctrine, all other appellate courts reference one of the two con icting tests presented by

Supreme Court Justices John Paul Stevens and Antonin Scalia in order to determine if the

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provisions of anti-SLAPP laws should apply. Dayem (2021) notes that the First Circuit follows

Justice Stevens's test in which:

Step one asks "whether the scope of the federal rule is suf ciently broad to control the

issue before the court, thereby leaving room for the operation of seemingly con icting

state law." Step two asks whether the application of a federal rule "effectively abridges,

enlarges, or modi es a state-created right or remedy” (p. 4).

The First Circuit found that because Main’s anti-SLAPP law’s special motion to dismiss is a

mechanism of a state-created right, it "could not be displaced by a 12(b)(6) motion to dismiss”

(Dayem, 2021, p. 4).

However, all other appellate courts which have applied the results of Shady Grove to the

question of the applicability of anti-SLAPP statutes in federal court have assumed that anti-

SLAPP motions to dismiss are procedural and applied Justice Scalia's test, which defers to

federal procedure wherever a federal rule and a state procedure answer the same question in

dispute. Because both anti-SLAPP laws and Federal Rule 12 answer the question how do courts

throw out meritless claims pre-trial? federal appeals courts applying Scalia’s test hold that state

anti-SLAPP laws are not applicable in federal court. Despite most circuits following Scalia’s test,

Dayem (2021) argues that Stevens’s test may be the more prudent standard because it “seems

precisely to touch on the peculiarity of anti-SLAPP legislation--how "intertwined" the

substantive and procedural elements are” (p. 5).

Sopena (2022) disagrees with Dayem, arguing that the First Circuit's decision to apply

anti-SLAPP laws in federal court “contorts the plain meaning of the federal rules and the anti-

SLAPP laws to accommodate the underlying state interests” (p. 851). Sopena favors attorney fee

shifting as a mechanism for mitigating the harm caused by SLAPP suits and discouraging
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SLAPP litigants. Sopena argues that “The Federal Rules of Civil Procedure already provide a

mechanism for the dismissal of meritless claims” and that anti-SLAPP laws should allow the

victims of SLAPP suits to recover attorneys fees from the filer if their claim is dismissed under a

Rule 12 motion to dismiss or a Rule 56 motion for summary judgment (Sopena, 2022, p. 151).

Many state anti-SLAPP statutes only allow attorney fee shifting if the case is dismissed under the

law’s special motion to dismiss mechanism. This stipulation renders anti-SLAPP laws entirely

ineffective in circuits that reject the applicability of special motions to dismiss in federal court.

Sopena (2022) holds up Florida’s anti-SLAPP law–which allows those sued for protected speech

in lawsuits that are “without merit” to recover attorneys fees regardless of what mechanism

makes that determination–as an example of what anti-SLAPP laws should look like.

First Amendment and/or Statute Law Conclusions

As it stands, the effectiveness of anti-SLAPP laws has been seriously undermined by

federal court procedures. Malicious actors not living in the same state as their target can simply

file their SLAPP lawsuit in one of the many circuits that do not apply state anti-SLAPP laws in

federal court. Called forum shopping, this practice undermines the impartiality of justice and

gives a distinct advantage to litigants who can afford to pay an experienced legal counsel to

argue jurisdiction. For anti-SLAPP laws to be consistent across the country, congress would have

to pass a federal anti-SLAPP law, or the supreme court would have to take up the question.

Because neither is likely to happen soon, the disjointed state of anti-SLAPP law in this nation is

likely to continue.

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This research is limited to the application of anti-SLAPP laws in federal court. Separate

legal research into the application of anti-SLAPP laws in state courts is warranted. State anti-

SLAPP laws have existed since the 1980s. An in-depth study on their effectiveness in stopping,

preventing, and punishing unmerited SLAPP lawsuits in state courts would be beneficial to the

literature.



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References

Abbas v. Foreign Policy Group, LLC, 783 F.3d, (2015)

Bell Atl. Corp. v. Twombly, 550 U.S., (2007)

Cal. Civ. Proc. Code § 425.16, (2019)

Clifford v. Trump, 818 Fed. Appx. 746, (2020)

Dayem, L. (2021). La Liberte v. Reid and the Anti-SLAPP Split. The University of Chicago Law
Review, 1–5.

Federal Rules of Civil Procedure 12

Federal Rules of Civil Procedure 56

La Liberte v. Reid, 966 F.3d, (2020)

Sopena, G. (2022). Attorney-fee Shifting Is the Solution to SLAPPing Meritless Claims out of
Federal Courts, 16 FIU L. Rev. 833. Florida International University Law Review (FIU),
833–855.

Toscano, J. (2021). SLAPPS Across America, 37 Touro L. Rev. 1703. Touro Law Review, 37,
1703–1726.

United States ex rel. Newsham v. Lockheed Missiles & Space Co, 190 F.3d, (1999)

Youm, K. H. (2022). Defamation. In W. W. Hopkins (Ed.), Communication and the Law (pp. 81–
116). essay, Vision Press.