Federal Court Renews Hostility Toward Anti-SLAPP Laws

AuthorAmy Mattson
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
form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.
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
© Zdenek Sasek v ia iStock / Getty Ima ges Plus

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