ANTI-SLAPP STATUTES AND THE FEDERAL RULES: WHY PREEMPTION ANALYSIS SHOWS THEY SHOULD APPLY IN FEDERAL DIVERSITY SUITS.

• Author: Seidleck, William James
• Position: Strategic Lawsuits Against Public Participation

1. ANTI-SLAPP STATUTES AND THE QUESTION THEY POSE IN FEDERAL DIVERSITY LITIGATION 549 II. THE CONFUSING SCOPE OF THE FEDERAL RULES 553 III. THE MORE COHERENT PREEMPTION APPROACH 557 A. Conflict and Field Preemption 558 B. Preemption Analysis Applied to the Federal Rules of Civil Procedure 559 1. Enabling Act Avoidance Canon: The Walker Narrow-Read Pattern 560 2. Don't Tread on Federal Interests: The Burlington Northern Preemption Pattern 563 IV. PREEMPTION OF ANTI-SLAPP STATUTES BY THE FEDERAL RULES IS UNNECESSARY 566 A. There Is No Direct Conflict Between the Federal Rules and Anti-SLAPP Statutes 567 B. Anti-SLAPP Statutes Do Not Encroach on a Field of Important Federal Interests 572 V. CONCLUSION 576 In an effort to protect the exercise of free speech and petitioning activity against meritless defamation suits, numerous states have enacted laws to deter "SLAPP"--"strategic lawsuit against public participation"--suits. (1) Such strike suits often involve speech on matters of public concern and would have no practical chance of prevailing under current First Amendment doctrine. (2) However, the time and expenses associated with getting these claims dismissed are often enough to intimidate would-be speakers into silence.

   State "anti-SLAPP" laws require the plaintiff to demonstrate a likelihood of success on the merits for speech-related tort claims, providing a quick and easy way for defendants to get meritless claims dismissed at the pleadings stage, prior to potentially costly discovery. (3) Because these anti-SLAPP motions spare defendants a great deal of time and expense, they help blunt the threat of SLAPP suits. But debates within the federal courts of appeals may jeopardize the effectiveness of anti-SLAPP statutes. In 2015, the D.C. Circuit created a circuit split by refusing to apply Washington, D.C.'s anti-SLAPP statute, claiming it conflicts with Rule 12(b)(6) motions to dismiss and Rule 56 summary judgment motions. (4)

   The anti-SLAPP circuit split now offers the Supreme Court a unique opportunity to correct the broader confusion over the relationship between the Federal Rules of Civil Procedure and state laws. By holding that anti-SLAPP statutes do not conflict with the Federal Rules based on an analysis of the purposes underlying both provisions, the Supreme Court could go a long way in clarifying how the Federal Rules operate. (5) Under the Rules Enabling Act, the Federal Rules will control litigation in federal courts--provided that they do not "abridge, enlarge or modify" substantive rights given by law. (6) But just what constitutes a substantive right has vexed judges and academics since the Enabling Act's inception in the 1930s. It was this same confusion that led the D.C. Circuit to conclude that Rules 12(b)(6) and 56 preclude the operation of anti-SLAPP statutes in federal court. However, by treating the question of whether the Federal Rules of Civil Procedure preclude state-law protections in federal court as one akin to preemption, as Professors Stephen Burbank and Tobias Barrington Wolff have advocated, (7) a more coherent answer to the anti-SLAPP-application problem is possible.

   As this Comment will argue, there is no sufficiently strong federal interest in having the Federal Rules "preempt" the operation of anti-SLAPP protections in federal court. Instead, straightforward preemption analysis shows that the balance favors having anti-SLAPP motions available to federal litigants. Part I examines the particulars of anti-SLAPP statutes and the circuit split over whether anti-SLAPP statutes apply in federal diversity proceedings. Part II then provides context for the anti-SLAPP-application debate by reviewing the Supreme Court's conflicting interpretations of the Enabling Act. Part III examines Enabling Act precedent through the lens of preemption analysis, which provides a more coherent explanation for when the Court is likely to find that the operation of the Federal Rules supersedes state law. Based on insights gathered from the preemption-analysis approach, Part IV considers the use of anti-SLAPP motions in federal court. Finally, this Comment concludes that no conflict exists between federal interests and anti-SLAPP provisions. Thus, anti-SLAPP motions should be available to defendants in federal court.

1. ANTI-SLAPP STATUTES AND THE QUESTION THEY POSE IN FEDERAL DIVERSITY LITIGATION

   Prompted by concerns that the prospect of litigating meritless claims may discourage protected speech or petitioning activity, approximately thirty states, territories, and the District of Columbia have enacted anti-SLAPP statutes. (8) An additional two states, Colorado and West Virginia, adopted anti-SLAPP protections by judicial decision. (9) The policy undergirding these anti-SLAPP provisions is to protect against the filing of state slander, libel, and other speech-related claims meant to chill the exercise of free speech and petitioning activity. (10) The fear is that potential speakers will be so intimidated by the burden and expense of litigating these claims, they will refrain from engaging in protected speech. (11)

   Anti-SLAPP statutes do not preclude speech-related suits. Rather, they create special motions to dismiss actions brought against defendants based on "any claim arising from an act in furtherance of the right of advocacy on issues of public interest." (12) To succeed, the defendant must make a "prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest." (13) The burden then falls on the plaintiff to demonstrate that "the claim is likely to succeed on the merits." (14) If the plaintiff succeeds, the motion is denied; otherwise, the defendant's motion to dismiss is granted. (15) To keep costs to the defendant low, discovery is stayed during the pendency of the motion. (16) If the motion is granted, the defendant can then seek costs and reasonable attorneys' fees. (17)

   Proponents of anti-SLAPP statutes argue that they protect substantive rights--free speech and advocacy, without fear of reprisal through costly litigation--via targeted procedural means. (18) But recently, federal circuits have divided over whether anti-SLAPP statutes are "procedural" or "substantive" for Enabling Act purposes. The disagreement centers on whether Rules 12(b)(6) and 56 preclude the operation of the anti-SLAPP motions in federal proceedings. This debate has now created a circuit split whose ultimate resolution may come only through Supreme Court review. And in reviewing anti-SLAPP statutes, the Court would have the opportunity to clarify its own Enabling Act jurisprudence. The remainder of this Part will briefly survey some of the more important courts of appeals opinions regarding the place of anti-SLAPP statutes in federal court.

   In Godin v. Schencks, the First Circuit held that Maine's anti-SLAPP statute must be applied in federal court. (19) A "straightforward reading" of Rules 12(b)(6) and 56, the court said, does not indicate that those Rules were "meant to control the particular issues." (20) Further, "a Federal Rule 'cannot govern a particular case in which the rule would displace a state law that is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state-created right.'" (21)

   The court went on to hold that Rules 12(b)(6) and 56 do not "address the same subject" as the anti-SLAPP statute. (22) Because the anti-SLAPP statute addresses "special procedures for state claims," it does not seek to displace the "general federal procedures governing all categories of cases." (23) In other words, "Maine has not created a substitute to the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities." (24) Thus, because of the substantive purposes behind Maine's anti-SLAPP statute, distinct from the functioning of Rules 12(b)(6) and 56, finding a conflict was both unnecessary and inappropriate.

   In contrast to the First Circuit, the D.C. Circuit found a conflict between D.C.'s anti-SLAPP provision and Rules 12(b)(6) and 56. (25) Specifically, the court viewed D.C.'s anti-SLAPP statute as imposing a higher burden on getting to trial than Rules 12(b)(6) and 56. (26) Under Rule 12(b)(6), a plaintiff need only show that a claim "is plausible on its face." (27) Indeed, a case "may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable." (28) Because the anti-SLAPP statute and Rules 12(b)(6) and 56 "answer the same question" about a claim's viability, but the anti-SLAPP statute makes getting to trial more difficult for the plaintiff, it conflicts with the Federal Rules and cannot be applied. (29) Thus, from the D.C. Circuit's perspective, the Federal Rules and the anti-SLAPP statute cannot coexist.

   Other circuits have also seen the anti-SLAPP controversy come to a head. The Ninth Circuit was the first to hold that anti-SLAPP statutes should apply in federal court because they "can exist side by side" with the Federal Rules. (30) The court noted that if a defendant were unsuccessful in obtaining relief through the anti-SLAPP motion, he could still bring a Rule 12(b)(6) or Rule 56 motion. (31) The anti-SLAPP provision also protects individual "constitutional rights of freedom of speech and petition for redress of grievances," something the Federal Rules do not directly address. (32)

   Despite this longstanding Ninth Circuit precedent, Judge Kozinski waged an all-out assault on applying anti-SLAPP statutes in federal court. Specifically, he viewed anti-SLAPP statutes as impermissible alterations to the standards set by Rules 12(b)(6) and 56. (33) He also believed that the Federal Rules operate as "an integrated program of pre-trial, trial and post-trial...