As I recently explained in detail, an anti-SLAPP act gives defendants sued for their speech a procedural mechanism to get rid of the case early and recover attorney fees if the plaintiff can't produce evidence showing the case has merit. It has a substantial deterrent effect on frivolous lawsuits aimed at speech, and makes it substantially easier and cheaper to defend against them.
Can you show me examples of anti-SLAPP statutes working well?
Yes. Here's a successful anti-SLAPP ruling that got rid of a defamation case in Oregon filed by an attorney accused of participation in telemarketing. Here's one in Colorado, putting an end to a defamation suit by a man accused of posing as a Special Forces veteran.
They all have something in common: they allowed the defendants to terminate a meritless, censorious lawsuit early.
Does SPEAK FREE stand for something?
Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts.
That's kind of contrived, isn't it?
What's new about the SPEAK FREE Act?
The SPEAK FREE Act would create a federal anti-SLAPP statute.
State anti-SLAPP statutes don't apply to federal claims. In fact, there's some dispute about whether they even apply to state claims heard in federal court.
The SPEAK FREE Act would give defendants in federal court a mechanism to seek early dismissal of frivolous cases aimed at expression.
Would the SPEAK FREE Act of 2015 work like a state anti-SLAPP statute?
The defendant has the burden of filing a motion showing "that the claim at issue arises from an oral or written statement or other expression by the defendant made in connection with an official proceeding or about a matter of public concern." If the defendant succeeds, the burden shifts to the plaintiff to show that "the claim is likely to succeed on the merits." If the defendant wins, he or she gets attorney fees and costs. If the plaintiff wins, and the motion was frivolous, the plaintiff gets attorney fees and costs. If the defendant loses, they can appeal immediately, which is a crucial component of an effective statute. Filing the motion stops discovery, unless the court finds that discovery is necessary to resolve the motion.
Wait. Is that is broad as state anti-SLAPP statutes?
It's broader than some bad ones, and narrower than some good ones.
By its terms it applies to all speech "in connection with a public proceeding." That covers classic anti-SLAPP territory — petitioning the government.
But beyond that it only covers statements "about a matter of public concern," which it defines as matters related to health or safety, "environmental, economic, or community well-being," the government, public officials or public figures, and goods, products, and services in the marketplace.
So it covers, for instance, the classic case of a bad Yelp review. But it might not cover your online rant about a private figure on personal, social, or artistic issues. Also, there are exceptions for government enforcement actions, advertising speech, and "public interest claims."
Does the Act have any features most anti-SLAPP statutes don't?
Yes. The Act also allows an anonymous speaker to invoke it when a plaintiff attempts to use a subpoena to unveil the identity of the anonymous speaker. The speaker can file a motion seeking to quash the subpoena by showing that it seeks personal identifying information. The burden then shifts to the plaintiff to show the case is likely to succeed, as with a regular anti-SLAPP motion.
What does it mean for a claim to be "likely to succeed?" How heavy is the burden that the plaintiff has to carry?
Good question. The statute doesn't say.
Isn't that the sort of thing the statute should make clear?
You would think so. But anti-SLAPP statutes often don't. Most courts have interpreted similar language to mean that the plaintiff has to produce admissible evidence which, if accepted, would be enough to win. That doesn't mean they have to prove their case by preponderance of the evidence. It's more like the summary judgment standard — they have to show they do have real evidence and it would be enough to support the claim if believed. I suspect that's how federal courts would interpret this.
Does the SPEAK FREE Act of 2015 attempt to do anything dramatic that might substantially reduce its chance of passage?
What a very good question.
The answer is yes: it does. The Act would dramatically expand federal court jurisdiction over speech-related cases.
By expanding removal jurisdiction.
Wut's removal jurisdiction precious?
Okay. Here we go.
Federal courts can't hear just any case. They can only hear cases over which they have jurisdiction. Those fall into two big categories: cases with federal questions (like a federal cause of action), and diversity cases. "Diversity jurisdiction" is when the plaintiffs and defendants are all from different states, and the amount in controversy is more than $75,000. When there's diversity jurisdiction, a court can hear state law claims even if there's no accompanying federal cause of action.
When a case that could be filed in federal court is filed in state court, the defendants can move it to federal court. That's "removal." Defendants tend to prefer being in federal court.
So what does this Act do to removal?
It dramatically expands it by allowing defendants to remove any case to federal court if they want to file a federal anti-SLAPP statute under the Act.
Imagine that my neighbor sues me for defamation. Normally that case couldn't go to federal court: there's no federal claim, and there's no diversity jurisdiction because we're not from different states. Under this Act, I could remove this case to federal court to file a federal anti-SLAPP motion, and if I lose, I can appeal it to a federal appellate court. It doesn't go back to state court unless I lose the motion and lose the appeal (or fail to appeal).
Under the Act, the basis for removal doesn't even have to appear on the face of the complaint. I can file a removal with declarations explaining why a state complaint is actually aimed at speech.
Under the Act if I get hit with a subpoena seeking to discover my identity I can also remove the case to federal court to quash it.
What impact would that have?
That could dump a huge number of cases from state court to federal court — any case with an arguably speech-related cause of action could be removed. That would be a whole lot more work for federal judges. The Act would also mean that federal judges, rather than state judges, would be making most of the rulings on speech-related issues in defamation cases. It could effectively federalize defamation law.
How does that impact the Act's chances in Congress?
The federal judiciary lobbies hard, and will be lobbying against this Act in its present form.
Also, Congress is generally loath to pass laws dramatically expanding federal court jurisdiction.
Bottom line: good bill, or bad bill?
On balance, good. It's past time to have a federal anti-SLAPP statute. It would render moot the disputes over whether state laws apply in federal court, and would allow defendants to attack frivolous federal claims used to attack speech.
I'd prefer if the Act defined the speech protected more broadly to encompass any speech protected by the First Amendment on a subject of public interest.
I also think that tinkering with removal jurisdiction is an unnecessarily aggressive move. Speech is important, and frivolous lawsuits are chilling, but I don't think it's good policy to say "because lawsuits in this area are a problem we're going to federalize them all and send them to federal court." There are plenty of areas where you could do that, but doing so would steadily erode the competitive advantage of federal courts.
Last 5 posts by Ken White
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