by Paul Alan Levy
Over the past couple of decades, federal courts have a uniform answer to the question whether state anti-SLAPP statutes applied when state law claims were pursued in federal court. Anti-SLAPP statutes give the defendants in cases brought over the exercise of free speech rights on matters of public interest, and certain other categories of speech, the right to have the courts take an early look at the legal and evidentiary merit of the lawsuit, and to have them dismissed if the plaintiff cannot show that it has a realistic chance of success on the merits, and with an award of attorney fees, to boot.
The First, Fifth and Ninth Circuits had generally held in a series of cases that these laws applied in diversity, in part because, as construed to be consistent with the rules generally allowing at least a modicum of discovery before summary judgment motions can be granted, they were largely consistent with Federal Rules 12 and 56, and in part because such laws represent a state legislative judgment about the conditions that ought to be imposed on state-law claims to protect the interests of defendants against having their free speech rights chilled through abusive litigation.
But in a decision issued today, the DC Circuit has parted company with the First, Fifth and Ninth Circuits by deciding that the DC Anti-SLAPP law does not apply in cases where state law claims are litigated in federal court.
The panel’s unanimous decision holds that anti-SLAPP statutes directly conflict with the scheme of Rules 12 and 56 which, the court holds, provide the exclusive means for defendants to secure dismissal of lawsuits without trial. At the same time, the panel affirmed dismissal of the complaint on the alternate ground that the complaint was subject to dismissal under Rule 12(b)(6) because the allegedly defamatory statements at issue in the litigation were all matters of opinion and not actionable statements of fact.
One question that will immediately arise is whether the defendants can seek further review despite the fact that they prevailed on an alternate ground. My initial thought is that they can, because the panel went out of its way to hold that defendants cannot claim attorney fees under the anti-SLAPP statute when the complaint is dismissed on Rule 12 grounds. (The defendants' motion for fees was stayed by the trial court pending the outcome of the appeal). Under the Supreme Court’s decision in Camreta v. Greene, this is probably a sufficient adverse affect of the judgment to give the defendants a concrete stake in a petition for en banc reconsideration or, indeed, a cert petition. Indeed, one might wonder why, if the case was subject to dismissal under Rule 12, the DC anti-SLAPP law conflicts with the Federal Rules of Civil Procedure in this case. Is this a case of a panel going out of its way to issue a needlessly broad ruling on a question of law that was not squarely presented?
Second, the DC Circuit’s ruling increases the urgency for consideration of a federal anti-SLAPP statute. There appeared to be significant momentum toward the adoption of such a law a couple of years ago, but the issue got bogged down by substantial concerns about whether the proposed law was so broad as to threaten important legal claims not really germane to the concerns that have animated the state anti-SLAPP laws. But if plaintiffs can evade anti-SLAPP protections just by filing their defamation claims in federal court, either on diversity grounds or by adding federal claims, the need for a federal solution becomes that much more urgent.
UPDATE:
It appears that the defendants have decided not to seek further review of the DC Circuit's rejection of their anti-SLAPP motion.
