Federal Court Renews Hostility Toward Anti-SLAPP Laws

• Author: Amy Mattson
• Pages: 4-5

Published in Litigation News Volume 45, Number 3, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

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4 | A BA SECTION OF LITIGATIO N

Federal

Court

Renews

Hostility

Toward

Anti-SLAPP

Laws

efendants who face lawsu its led in retaliation for

exercising their Fi rst Amendment rights may obtai n a

speedy dismis sal under anti-SLAPP l aws on the books

in 30 states and th e District of Columbia. The laws ai m

to prevent the use or abuse of strate gic litigation against

public participation (SL APP) that would chill protecte d speech.

But circuit cour ts are divided as to whether those laws apply in

federal court.

In Klocke v. Watson, a th ree-judge appellate panel

unanimously held t hat the protections of the Texas Citizens

Participation Act ( TCPA), the Lone Sta r State’s anti-SLAPP

statute, are not avail able to litigants in federal diversity act ions.

The U.S. Cou rt of Appeals for the Fifth Ci rcuit found the

TCPA conicts wit h Federal Rules of Civil Procedure 12 a nd

56 governing summa ry judgment and dismissal mot ions and

therefore cannot be appl ied in federal court.

ABA Sect ion of Litigation leaders say the Klocke holding

is signic ant because it provides a way for plaintiffs to avoid

dismissal of t heir lawsuits subject to anti-SL APP challenges by

ling suit in fe deral court, thereby increasi ng the likelihood that

litigants wil l engage in forum shopping. Yet, they add that the

decision is but the latest i n a growing canon of case law that

highlight s the intersection of free speec h safeguards and fed-

eral civil procedu re. While the opinion in Klocke r esolved “a n

issue that has brewed for se veral years” in the Fifth Circu it, it

magnied a s plit that pits the Fifth, Tenth, Eleventh , and D.C.

Circuits aga inst the First, Second, a nd Ninth Circuits which

have applied anti-SL APP statutes in federal act ions.

Fifth Circuit Revers es TCPA Dismissal

The case arose wh en Thomas Klocke, a University of Texas at

Arlington st udent, committed suicide af ter he was refused per-

mission to graduate followi ng allegations by classmate Nicholas

Watson that he had engaged in homophobic har assment.

Klocke’s estate sued Watson for defamat ion and defamation

per se, and the un iversity for Title IX due process violation s.

Watson moved to dismiss the clai ms under the TCPA.

Klocke’s estate responded t hat the TCPA was inapplicable

in federal cour t and did not address the case on its merits . The

U.S. Distr ict Court for the Northern D istrict of Texas overruled

that objection, g ranted Watson’s motion to dis-

miss, and awarded Watson attor ney fees and

sanctions pur suant to the TCPA.

Klocke’s estate appealed t he case

to the Fifth Ci rcuit, arguing that the

TCPA’s provisions levie d evidentiary

weighing requi rements not found in fed-

eral procedural r ules, and should therefore

not apply. The Fifth Circuit ag reed, reversing

the distric t court’s judgment and remanding the

case for furt her proceedings. Klocke’s case agai nst

the university d id not survive summary judgment

and appeal.

Burden-Shift ing Framework

The Texas legislature e nacted the TCPA in 2011 to dis-

courage meritless l awsuits intended to silenc e

protected speech by prov iding a means for

quick dismissa l. Under the statute at the

time Klocke’s case was adjudic ated, defen-

dants could seek d ismissal with in 60 days of service of

any claim that was broad ly “related to” the exercise of the

right of free speec h, petition, or asso ciation. A defendant

need only show “by a preponderance of t he evidence” that

the action inf ringed on his or her Fir st Amendment rig hts.

The statute shi fts the burden to the plaintiff to e stablish

by “clear and speci c evidence a prima facie c ase for each

element of the claim in que stion.” It also provides severa l

procedural bene ts to movants, including a s tay of most

discovery while a m otion to dismiss is pe nding and a man-

datory award of attorney fee s and costs to the movant if he

or she prevails.

But this frame work impermi ssibly “imposes additional

requirements beyond t hose found in Fede ral Rules 12 and

56,” the appellate court said. Ru le 12(b)(6), under which a

federal court may d ismiss a case for failure to state a clai m,

is not an impossible bar rier to overcome and requires no

evidentiary suppor t, the court noted. Simila rly, Rule 56,

addressing sum mary judgment, does not necessit ate weigh-

ing evidence to deter mine the truth of a matter, but rather

asks a judge to decide whether t here is a genuine issue for

trial. In cont rast, the TCPA demands judicial weighi ng of

evidence using a st andard that “lies somew here between the

state’s pleading baseli ne and the standard ne cessary to pre-

vail at trial,” all whi le circumscribing predecisiona l discov-

ery, the appellate court sa id.

By Amy Mat tson, Litigation News

Associate Editor

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