Lawsplainer: Why The D.C. Circuit's Anti-SLAPP Ruling Is Important

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.

Wait, what?

I was perfectly clear.

That was literally gibberish.

Fine. Fine. I'll explain. Will that make you happy?

Probably not.

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.

Huh? Why?

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.

Thank you.

You're welcome. That wasn't so bad, was it?

I have no comment on the matter.

Last 5 posts by Ken White


  1. Matthew Cline says

    I might not even have to specify exactly what you said that was false.

    Shouldn't the doctrine of mitigation of damages require the plaintiff to be specific?

  2. TimothyAWiseman says

    This is one of the most readable explanations of what anti-SLAPP laws are that I have yet seen, and I love the word lawfare.

    Also, I absolutely agree that a Federal anti-SLAPP law would be invaluable. While there are some valid defamation cases, laws against defamation have been used to attempt censorship far too often. Anti-SLAPP laws at least help to stop those.

  3. Castaigne says

    So, is Mark Steyn wrong primarily because he decided to go all pro se in the Mann case and so is…mistaken about the meaning of the judgment due to his relative inexperience with the law?

  4. says

    Jurisdiction is pretty complicated. I'm sure I don't grasp equally complicated areas of professions I haven't tried.

    On the other hand, as his post suggests, Mark has taken a somewhat disdainful view of the nuts and bolts of law, favoring instead sweeping value statements about free speech.

    His attitude is kind of like if Islamic terrorists put a bomb in his car and the bomb squad was trying to figure out whether to cut the red wire or the blue wire based on a lot of complicated electrical analysis and Mark was mad because all that analysis ignored that the Islamic terrorists were wrong to put the bomb in his car in the first place.

  5. MJW says

    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.

    If I understand diversity correctly, that's misleading. It sounds like Abbas removed the case to federal court, but I believe only the defendants can do that.

  6. Peter Orlowicz says

    MJW, a plaintiff can file directly in federal court if they choose (and if federal court has jurisdiction). You're correct that removal is reserved for defendants, but removal isn't the only way for diversity cases to get into federal court. If you file your own case in federal court originally, you still have to explain why the court has jurisdiction.

  7. Curmudgeonly Ex-Clerk says

    Is the court's Erie analysis of the anti-SLAPP statute dicta? If federal procedure also was invoked below and on appeal, produces the same result, and provides a valid basis for affirmance of the judgment in the district court, then why was it necessary to decide whether the anti-SLAPP statute applied?

    Footnote 5 of the opinion suggests a possible explanation for why the court nonetheless might have to decide whether the anti-SLAPP statute applied. That footnote references attorneys' fees, noting that they are available under the anti-SLAPP statute but not under federal procedure and that the defendants are not entitled to fees as a result. It would be necessary to decide whether the anti-SLAPP statute applied if an award of attorneys fees' had been awarded below and were on appeal. But were they? The court affirmed the judgment of district court's without qualification–something it could not have done if fees were included in that judgment.

    What am I missing?

  8. barry says

    ..trying to figure out whether to cut the red wire or the blue wire..

    The convention for D.C. circuits is that the red wire is positive.

  9. Roger Strong says

    Aren't anti-SLAPP laws also strategically used for the opposite effect, to make a litigation even more ruinously expensive for the little guy?

    I'm thinking of the lawyers who filed the iPod Nano class action suit, on behalf of a Lead Plaintiff who wanted nothing to do with the suit and never agreed to be represented by them. Once he got his own lawyer, an Anti-SLAPP motion was used against him.

  10. Mikee says

    RE: Roger Strong April 28, 2015 at 9:59 pm

    I remember reading about the iPod scratch case when it was first announced after being filed in late 2005. Then six months later the lead plaintiff claims he never authorized anyone to file a suit on his behalf and claimed an anti-SLAPP suit had been filed against him by the attorneys in the original suit. No word on anything until a few years later when Apple was finally found to be at fault in the case, with the original lead plaintiffs name still present.

    The scent of bullplop is just as strong now as it was then. If an anti-SLAPP was really filed against him, where's the evidence of it and what was the resolution? Why did the original case get resolved with his name still on it? Too many questions for me to believe one evidence-free story from a fanboy that wanted to stop a lawsuit against his favoritest company in the world. That's the new American way, isn't it? Mad enough to complain online, not mad enough to do anything about it in reality.

  11. prl says

    Am I right in assuming that the federal court system determines the Federal Rules of Civil Procedure; that is, the rules don't have to be passed by Congress?

    And that this decision says that anti-SLAPP provisions are essentially procedural rules?

    So might it be possible for the Federal Rules of Civil Procedure to be changed to add some sort of anti-SLAPP provisions without requiring an act of Congress?

  12. Sacho says

    Hey, completely off-topic, but is anyone experiencing caching problems with the front page of Unfortunately I didn't think of logging the exact request/response combination that lead to it, but basically, navigating to would show me only older posts until refreshed.

    Uhh, otherwise, thanks for the great posts, Ken.

  13. nk says

    As 1) a lawyer and 2) someone who was never much shucks with a dueling pistol or sword, I'm not entirely happy with draconian anti-SLAPP statutes. Frankly, I value an impartial forum for the peaceful resolution of conflicts more than the ability to call Harry Reid a pederast, or Mitt Romney a tax evader, or to tell people where Barbra Streisand lives. It's possible that some judges may feel that way too.

  14. Stan says

    Again off topic: I had the same refresh/caching problems as Sacho for several months before the new format was introduced. The problems went away at that time, but have now reappeared.

  15. nk says

    I did not say all anti-SLAPP statutes are draconian; I was referring to the ones which are. Like the Nevada one, which imposes a $10,000.00 penalty on top of attorneys fees?

    In the context of this post …. Law is process. Like baking bread. Experience has settled on a process which produces a palatable if not invariably perfect product. Changing the process because it is too onerous is risky to product quality.

  16. Wshuff says

    I'm with Curmudgeonly Ex-Clerk. Why isn't the whole discussion of Anti-SLAPP non-binding dicta? How was it necessary to the decision if Plaintiff's complaint couldn't survive a run-of-the-mill motion to dismiss?

  17. nk says

    P.S. Heh! The plaintiff may have gone diversity in order to avoid the venue state's anti-SLAPP statute. Discouraging forum shopping would be a good reason for the federal courts to make them part of the rule of decision?

  18. RR says

    Yes, my desktop browser wouldn't show me anything after the DEA article on the 9th. Flushing the cache just now fixed it. My mobile browser was working fine.

  19. Dan says

    So do you believe that the $10k penalty in Nevada's Anti-SLAPP law is "draconian"? Why do you believe that this is so?

    The SLAPP problem is real, and ordinary procedures aren't adequate to counter it, for at least two reasons: (1) to a private individual, the cost to litigate a case even through summary judgment is simply astronomical, and (2) though existing law has provisions to sanction counsel and litigants for frivolous claims, judges are exceedingly reluctant to apply them. Take the case of Joseph Rakofsky–brand new attorney takes a capital murder defendant as his first client ever, totally bungles the case, and the judge declares a mistrial due to his incompetence. When a judge sua sponte declares a mistrial due to ineffective assistance of counsel, that's newsworthy, so of course it makes the rounds of the blawgosphere. Rakofsky, seeking to soothe his butthurt, sues dozens of journalists and bloggers for accurately reporting what happened in court that day.

    Rakofsky's complaint was frivolous on its face–he quoted the trial transcript extensively in his complaint, and it proved that the bloggers' postings were accurate. Nonetheless, it took years for the case to be dismissed, and no sanctions were awarded.

    If judges would award Rule 11 sanctions (or state equivalents) more regularly when warranted, the second issue would be moot, but the first remains. By providing an expedited process to dispose of clearly baseless complaints, Anti-SLAPP laws save defendants the expense and disruption of extended proceedings, save the courts the time and congestion of dealing with claims that never should have been brought to begin with, and minimize the plaintiffs' liability for sanctions.

    Your bread analogy really doesn't make sense. Even ignoring that there are countless recipes for bread, there are several fundamentally distinct procedures for making it. You use the technique that best produces the results you want.

  20. Garrett says

    On a related note, do other civil lawsuits require evidence upfront? Would it make sense to require this so as to reduce all other types of lawfare? There's talk of most medical malpractice suits being baseless, but are settled simply because of the cost of litigation. Why shouldn't we examine the cost of litigation across the board?

  21. Leah says

    I don't think you're being fair to Steyn's argument. His point is that Anti-SLAPP laws are supposed to prevent you from having to spend tons of money to fight lawfare. If he has to spend millions of dollars to litigate the Anti-SLAPP law itself, then it's pointless. Especially in his case where discovery happens not to be expensive.

  22. says

    @Leah: he may be saying that, but he's also saying that he thinks that the ruling makes the anti-SLAPP litigation in his case irrelevant. Also, he specifically says in his update that he disagrees with me.

  23. TXDave says

    @Dan: Funny you should mention Rakofsky, since Ken now uses his name as a descriptor for censorious douchebaggery (e.g. "Full Rakofsky" in the Prenda coverage).

    @Ken/Webmaster: Updates are not working properly on Firefox ESR 31.6.0 on Windows 7 Enterprise. Hard refresh (ctrl+F5) will force an update, but loading the page does not.

  24. Steve says

    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.

    Isn't it the case that suit must exceed $75,000, as opposed to being at least $75,000?

  25. George William Herbert says


    Question – Given that they said on one hand, the state anti-SLAPP statute didn't apply, and then used the existing generic Federal dismissal procedure to more or less do exactly the same test as the state law did, does this mean they established a precedent (I know, one circuit not binding on others) for what's effectively a Federal anti-SLAPP procedure?…

  26. Jesse from Tusla says

    Yep, must exceed $75k. There is a great case where some poor SOB field in Federal Court, plead for $75k even, and was remanded to State Court. A plea for $75k is not a plea for in excess of $75k. Still another case where a Plaintiff filed claiming for $75k even and it was removed under the theory if "they might get more," it was likewise remanded based on the pleading alone and no "cap" was placed on any potential jury verdict because of it. (Maryland maybe). I'm sure I have these in my research "stack" somewhere.

    Hate to sharp shoot, but this is a well written article that may actually be relied on by some law student, baby attorney, ignorant member of the press or, god forbid, the general public.

    The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States;

    SOOO— Abbas was rightly in Federal DC Court so long as he sued for $75,001. Thus avoiding the SLAPP and losing on failure to state a claim (pesky freedom of speech!).

  27. Dan says

    Yep, I've seen Ken mention Rakofsky a few times around here. I don't recall if Popehat was among the sites covering the whole Rakofsky v. Internet thing when it initially went down, but it wouldn't surprise me in the least. My summary of the case was probably way too long, but I thought it made a good example of a SLAPP suit, and of why robust anti-SLAPP laws are called for.

  28. Leah says

    But in your car bomb analogy, what is the bomb? I took you to mean that analyzing the wires is like litigating Anti-SLAPP laws, the smart, prudent way to defuse a dangerous situation. But if the bomb is discovery, and discovery in his case is cheap, then it's not much of a danger. Why not let it blow?

    Or is the bomb something else? The trial, maybe?

  29. Mike says

    I'd sure like to meet Steyn's crackerjack legal team. I have a suspicion that it's a box of crackerjacks he asks for legal advice.

  30. nk says

    A client who complains about "useless motions" will complain much louder about you not having made them should he lose. And in the second instance, he would be right. There is only one way to practice law and that is meticulously leaving no stone unturned. Furthermore, a lawyer's duty to exercise independent judgment on behalf of his client includes independent from the client's judgment too. If the client knew his way around the legal system, he wouldn't need you.

    That's a general statement — I have absolutely no information or insights about Mr. Steyn's relationship with his lawyers.

  31. CBDunkerson says

    Mike, it is unlikely that Steyn consulted with his legal team at all. His previous council in that case separated from him after he publicly went off on the judge. He also continues to write articles providing new ammunition for the defamation complaint against him.

  32. DJ says

    I think Leah wins the prize for the most common sense approach to Steyn's complaint.

    If this is a case of Anti-SLAPP working effectively (3+ years etc), maybe they should rewrite the damn law…

    In the meantime, the 270 word blog post is making everyone's lawyers rich, maybe that's IS the intended point of the law…