The Use (or Not) of Anti-SLAPP Laws in Federal Court

• Pages: 22-22
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Daniel P. Elms
• Subject Matter: Administrative & Public Law

here is little disagreement that people should

be free to exercise their First Amendment rights

without fear of retaliatory litigation. Such expression-

chilling litigation is known as a “Strategic Lawsuit

Against Public Participation” or “SLAPP” suit

because its core purpose is to quell public discussion that a

plaintiff considers harmful or inconvenient.

States began enacting anti-SLAPP statutes in the early 1990s

to protect constitutional expression. These various laws are not

identical, but each of them includes one operative feature—a

mechanism for the early-stage dismissal of a complaint that

arises from the defendant’s exercise of constitutionally pro-

tected rights.

Stormy Seas in Fede ral Courts

A defendant who seeks to use an anti-SLAPP law to dismiss

a claim led in federal court may be in for rough sailing. The

Federal Rules of Civil Procedure already have provisions gov-

erning the early dismissal of cases in the form of Rules 8, 12,

and 56. The notion is that state legislatures should not be in

the business of telling federal courts how and when to dismiss

cases. Unfortunately, however, our federal courts are far from

uniform in how they resolve this tension.

California was the rst state to enact an anti-SLAPP stat-

ute, and it authorizes a “special motion to strike” (akin to

a motion to dismiss) any lawsuit that arises from a person’s

exercise of her constitutional right to petition or free speech.

In United States ex rel. Newsham v. Lockheed Missiles &

Space Co., the U.S. Court of Appeals for the Ninth Circuit

determined that the California anti-SLAPP statute “can exist

side by side” with the Federal Rules, “with each controlling its

own intended sphere of coverage without conict.” That court

held that the Erie doctrine compelled enforcement of this

California statutory protection.

Other federal courts see things differently. In Klocke v.

Watson, the U.S. Court of Appeals for the Fifth Circuit held

that the Texas anti-SLAPP law is not applicable in federal

courts because it includes provisions that required the court to

weigh evidence in a manner that conicts with Rules 12 and

56. In essence, the Klocke court held that the Texas legislature

could not modify the process by which a federal court deter-

mines whether a case is subject to early dismissal or summary

adjudication.

A year after Klocke, in Clifford v. Trump, the Ninth Circuit

got a second chance to consider whether state anti-SLAPP

laws could hold sway. In a twist, however, the Clifford dis-

trict court had applied the Texas anti-SLAPP statute because

Texas provided the substantive law of decision for that case.

The Ninth Circuit acknowledged the Klocke decision but held

that its reasoning “cannot be reconciled with our circuit’s anti-

SLAPP precedent,” which required the application of the Texas

anti-SLAPP statute. This circuit delity logic is sound, but it

portends inconsistency from one federal circuit to another.

Sailing from O ne Port to Anot her

Consider a case led in a particular federal court in which

the defendant intends to assert two positions. First, the defen-

dant believes the claims should be dismissed pursuant to an

anti-SLAPP statute, and her good fortune has put her in a fed-

eral circuit that applies such statutes. But the defendant also

believes that the case has been led in an improper venue, so

she also intends to move to dismiss or transfer on that basis.

However, if the defendant is correct in her improper forum

argument, the most likely place for transfer is to a federal court

that does not enforce anti-SLAPP statutes. In such a case, the

defendant would be forced to litigate in an improper forum for

the sake of preserving her rights under the anti-SLAPP statute.

A version of this problem arose in Corsi v. Infowars, LLC.

The plaintiff sued for defamation in a District of Columbia

federal court, and the defendant moved to dismiss based on,

among other things, improper venue. The court determined

that venue was proper in the Western District of Texas, but

the defendant asked the court to dismiss, rather than trans-

fer, because of the Fifth Circuit’s refusal to apply anti-SLAPP

laws. The court refused to do so because dismissal would have

prejudiced the plaintiff in that his claim would be time barred.

Instead, the court transferred the case to the Western District

of Texas, torpedoing the defendant’s ability to seek relief under

any anti-SLAPP law.

Safe Harbor f rom the Supre me Court?

The Erie doctrine and the Rules of Decision Act operate best

when there is clarity on whether an issue is substantive or

procedural. But they struggle when an issue presents some of

both. Anti-SLAPP laws unquestionably protect a defendant’s

substantive First Amendment rights, but they do so in a way

that arguably infringes on a federal court’s procedures for

early dismissal of claims. So varying approaches from different

federal circuits might be unsurprising.

Still, they cry out for Supreme Court resolution. There is an

unambiguous circuit conict directly affecting a defendant’s

right to seek early dismissal of a lawsuit that is intended to

muzzle First Amendment expression. Moreover, the vagaries

from circuit to circuit undercut the right to a proper venue. A

defendant should not be put to a choice of either proceeding

in a court of improper venue or being transferred to a court

that would eliminate her rights under an anti-SLAPP statute.

This conundrum also encourages abusive forum shopping. A

defamation plaintiff, for example, could choose any venue she

desires, knowing that the defendant will likely acquiesce to it

if the alternative is a transfer to a circuit that refuses to apply

anti-SLAPP laws in federal courts.

The Use (or Not) of Anti-SLAPP Laws

in Federal Courts

By Daniel P. Elms, Litigation News Immediate Past Editor-in-Chief

WINTER 202 5 • VOL. 50 NO. 2

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