Paul Alan Levy reports that the D.C. Circuit has applied the refinement reflected in Shady Grove of the Erie doctrine to preclude application of state anti-SLAPP laws to cases where jurisdiction is premised on diversity of citizenship.
I was perfectly clear.
That was literally gibberish.
Fine. Fine. I'll explain. Will that make you happy?
Too bad. I'm doing it anyway.
What are anti-SLAPP statutes, anyway?
A SLAPP is a Strategic Lawsuit Against Public Participation — that is, a bad-faith lawsuit designed to silence someone or retaliate against their speech. Anti-SLAPP statutes are a procedural tool to get rid of meritless lawsuits early when they wrongfully target protected speech. That helps protect speech from the chilling effect of harassing litigation.
Doesn't the legal system already protect me from frivolous lawsuits?
Imagine I sue you for punching me in the nose, even though you've never met me.
Normally I don't have to put up any evidence at all at the start of the case. I just have to allege facts in the complaint that, if true, mean that I'm entitled to relief. You can't show up in court and say "wait, it's not true." You can only get the case dismissed (through what's called a motion to dismiss, or in some places a "demurrer") if it's legally defective, not factually defective. I can drag you through litigation, including expensive and intrusive discovery.
Later in the case you'll have an opportunity to file a motion for summary judgment. That's basically an assertion that I don't have the evidence I need to win the case. But I can defeat that motion easily with any evidence. The judge doesn't get to weigh evidence and credibility. If you have ten witnesses who say you didn't punch me in the nose, and I have my declaration saying you did, then I win the motion and the case goes forward to trial.
So, if a plaintiff is minimally competent and willing to lie, they can usually force a defendant to go through stressful and ruinously expense litigation.
How do anti-SLAPP statutes change that?
Anti-SLAPP statutes allow a defendant to file a special motion to dismiss a meritless speech-related case immediately.
Generally the motion works like this: the defendant files the motion pointing out that the lawsuit is complaining about speech protected by the statute. (For instance, "He's suing me for criticizing his business in a public forum.") If the defendant shows that the lawsuit is aimed at speech protected by the statute, the burden shifts to the plaintiff. Now the plaintiff has to produce actual, admissible evidence to show they have a chance of winning. If they can't, then the case is dismissed, and the defendant gets their attorney fees.
Does that really make such a difference?
Absolutely. Imagine I sue you for saying that you lied about me in a blog post. Normally I wouldn't have to produce any evidence showing that what you said was false until late in the case. I might not even have to specify exactly what you said that was false. An anti-SLAPP motion forces me to articulate exactly what you said, exactly how it was false and defamatory, and what admissible evidence I have supporting those facts. That does a few important things. First, it makes me specify my complaint about your speech, which might reveal that I have no case. For instance, if in response to your motion I concede that I'm suing because your post said I'm an ass, you'll win — because that's an expression of opinion, and is absolutely protected. Second, I actually have to produce admissible evidence — so if my claim is groundless, I'll lose.
Great! So does my state have an anti-SLAPP statute?
Maybe. Some do and some don't. And some anti-SLAPP statutes are strong, and some are weak.
What makes an anti-SLAPP statute strong or weak?
Mostly the scope of protected speech.
In some states the statute only lets you file the motion if you're being sued for your speech to the government, like the classic case of a citizen complaint about a nearby property development. Other state statutes — like the one under fire in Nevada — cover a much broader range of speech, nearly as broad as the First Amendment itself.
So, for instance, if a business sues you over a Yelp review, you want to be in a state with a broad anti-SLAPP statute, not a narrow one.
So what's this Circuit City thing?
D.C. Circuit. The United States Court of Appeals for the District of Columbia Circuit.
The D.C. Circuit is a federal court of appeals — and an important one, since so many significant federal cases start in Washington D.C.. It hears appeals from cases filed in United States District Court in Washington D.C..
Aren't all courts federal in D.C.?
Yes, but there are two types — the D.C. Superior Court and Court of Appeals, which act like state courts everywhere else, and the U.S. District Court and Court of Appeals, which act like federal courts everywhere else.
So what did the D.C. Circuit do?
It decided that Washington D.C.'s anti-SLAPP statute couldn't be used in United States District Court in diversity cases.
What's a diversity case?
That's a type of federal jurisdiction.
United States District Courts can only consider cases where they have "subject matter jurisdiction." Think of it as "type of case jurisdiction." Federal statutes define the scope of that jurisdiction.
There are two main types. One is "federal question jurisdiction." That's when someone sues under a federal statute — like filing a federal civil rights claim against a police officer who shoots you.
The other is "diversity jurisdiction." That allows the plaintiff to file in federal court (or a defendant to move a case to federal court) when the case involves at least $75,000, and when the plaintiffs come from different states than the defendants.
That's weird. What's diversity jurisdiction for?
The thought was that out-of-state litigants would get home-towned, and that a federal court would be more egalitarian and receptive to litigants regardless of their origin.
That sounds like something you'd say if you never met a federal judge or federal jury.
I have no comment on the matter.
Wait. I've seen people sued for both federal and state causes of action in the same complaint in federal court.
Right. When a plaintiff files a lawsuit with federal claims in federal court, the federal court can also hear related state claims that the plaintiff wants to bring — like bringing a claim for violation of a federal civil rights statute and a state assault statute. That's called "pendent jurisdiction."
Does the federal court always consider those pendent claims?
I'm glad you asked. There are a number of types of supplemental jurisdiction (of which pendent jurisdiction is one) and a number of rather fascinating multi-factor tests to identify which claims the federal court must hear and which it may hear. To begin with . . .
Angels and ministers of grace defend us, what have I done. Please stop.
Okay. It was a little off point.
So what kind of case was this before the D.C. Circuit?
It was a defamation case. The Foreign Policy Group and Jonathan Schanzer, the defendants, wrote a piece about the plaintiff Yasser Abbas, who is the son of Palestinian Authority President Mahmoud Abbas. The article noted Abbas' wealth and asked questions like "Are the sons of the Palestinian president growing rich off their father's system?" and "Have they enriched themselves at the expense of regular Palestinians?"
Yasser Abbas didn't like that, so he sued for defamation in United States District Court in D.C. He said that court had subject matter jurisdiction under diversity — because he and the defendants were from different states. The defendants filed a motion under D.C.'s anti-SLAPP statute, and won. Yasser Abbas appealed.
What was his argument on appeal?
He said that D.C.'s anti-SLAPP statute conflicts with the procedural rules governing federal courts, and so it shouldn't have been applied.
Is that a new argument?
No, it's an old one. Other federal circuits have rejected it before and said that state anti-SLAPP laws can be applied to state claims being considered in federal cases — both when they are pendent claims (that is, state claims tagging along with a federal claim) or diversity claims (that is, state claims made in a lawsuit under diversity jurisdiction).
But state anti-SLAPP statutes don't apply to federal claims?
No, because a state can't alter federal law.
So why did the D.C. Circuit disagree with the other federal courts?
The D.C. Circuit just picked up on rumblings that have been around for a while. Two years ago Alex Kozinski – a prominent and respected Ninth Circuit judge — wrote that he thought that the earlier cases were wrong and state anti-SLAPP laws shouldn't apply in federal court to diversity claims.
How do you decide when state laws apply in federal court, anyway?
Through something called the Erie doctrine, named after a 1938 case called Erie Railroad Co. v. Tompkins. In Erie the Supreme Court said that state substantive laws apply to state claims in federal court in diversity cases, but not state procedural rules.
And ever since, courts have been fighting over what's procedural and what's substantive?
Exactly. Anti-SLAPP statutes are a good example: should they be treated as just creating a new procedure, or treated as creating a substantive privilege against frivolous lawsuits?
But it gets more complicated. Federal courts started approaching the question a little differently to avoid what Justice Scalia calls the "murky waters" of Erie. The new test — as reaffirmed recently in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. — asks whether the Federal Rules of Civil procedure "answer the same question" as the state law in question. If they do, the state law doesn't apply, unless the federal rule is invalid for extremely complicated and boring reasons not relevant here.
So how did the D.C. Circuit apply the rule?
They asked the Shady Grove question — do the Federal Rules of Civil Procedure "answer the same question" as the anti-SLAPP statute? They said yes.
The Federal Rules of Civil Procedure govern when and how a defendant can ask a federal court to dismiss a case. Rule 12 governs motions to dismiss, and Rule 56 governs motions for summary judgment. Washington's anti-SLAPP statute, the court found, tries to "answer the same question" by providing different procedural mechanisms to dismiss a case. The court rejected the idea that the statute created a privilege as opposed to a procedure. So the court disagreed with the other courts and agreed with Judge Kozinski's comments.
Well shit. So the defendants that Yasser Abbas sued are out of luck?
No! Because the defendants also made a motion to dismiss under the federal rules, using the traditional standard. The D.C. Circuit said that even though the anti-SLAPP statute didn't apply, they still would win under the federal rules.
Because in this case the things complained of couldn't be defamatory. Abbas complained about questions — like "are they enriching themselves" — that were not factual statements. The court pointed out that a question can contain a factual statement — like if I ask you whether you have stopped molesting squirrels — but these questions did not. Since Abbas didn't point out any false statements of fact, he couldn't prevail even if the factual assertions in his complaint were true.
So where does this leave anti-SLAPP statutes? What happens next?
This means there is a conflict among federal courts of appeal about whether state anti-SLAPP statutes apply in federal court. That dispute might be resolved by the D.C. Circuit re-hearing this case, or the other circuits changing their mind, or by the Supreme Court hearing the case.
Meanwhile, in D.C., you can't invoke D.C.'s anti-SLAPP statute in federal court. Even this case is only about diversity jurisdiction — that is, when the federal court has jurisdiction because the parties are from different states — the same analysis generally applies to pendent jurisdiction — when a federal court hears state claims tagging along with a federal claim.
Wait! Does that impact the lawsuit by climate scientist Michael Mann against a bunch of folks who criticized him?
No. That case involves a suit brought in D.C. Superior Court and appealed to the D.C. Court of Appeals. That's like D.C.'s state court. This new ruling applies to cases brought in United States District Court for the District of Columbia — D.C.'s local federal court.
But Mark Steyn says that this decision means all the anti-SLAPP litigation in his case has been pointless!
Yes he does. But he's wrong.
Is this important?
Hell yes. Anti-SLAPP statutes are an important tool to thwart lawfare — the practice of bad people using frivolous lawsuits to chill and punish speech. This decision, if upheld and spread more widely, means that good statutes can't be used in federal court.
What should we do?
Challenging this decision is mostly pointless, because the substance versus procedure dilemma will remain a problem. The most effective thing to do would be to pass a federal anti-SLAPP statute that applies to all claims in federal court.
Is that feasible?
Dunno. But Congress managed to pass the SPEECH Act back in 2010 to protect Americans from foreign judgments that didn't protect free speech. Maybe we can get Congress to act.
What can I do?
Write your senators and representative asking for an anti-SLAPP statute. Keep track of efforts through the Public Participation Project.
You're welcome. That wasn't so bad, was it?
I have no comment on the matter.
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