Lawsplainer: The Proposed Federal Anti-SLAPP Act: What It Would Do, Why It's Important

Last week, two members of the U.S. House of Representatives introduced the SPEAK FREE Act of 2015, an effort at a federal anti-SLAPP act.

What's that?

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.

Thank you.

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


  1. Chris says

    "Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts. Do you know what that means?"
    "It means someone really wanted their acronym to say 'SPEAK FREE'."

  2. Socinus says

    Editing note: the second link under "Can you show me examples of anti-SLAPP statutes working well?" is a duplicate of the first. Otherwise, another great write up!

  3. says

    First, thank you for posting an excellent overview of the proposed anti-SLAPP measures.

    I strongly support anti-SLAPP measures and think that on balance this is a good one. I largely agree with your commentary that I wish its definition of what cases it could apply to where broader, but this is probably broad enough to encompass the majority of significant instances of using defamation lawsuits for censorship. While I support anti-SLAPP laws, there are also legitimate cases of defamation that deserve redress and it would be possible to draft an anti-SLAPP law too broadly.

    I also agree that expanding the removal jurisdiction comes with drawbacks, though it does have advantages in helping this law apply to a boarder set of cases.

  4. Carl W says

    OK, my first thought was, why bother with the removal thing? Don't federal laws take precedence over state laws even in state courts? But I think I figured it out — anti-SLAPP acts, in theory, don't affect what's legal/illegal or what suits will/won't prevail; it just changes the process of getting to that conclusion. So what they actually change is details of court procedure, and federal laws only affect details of court procedure in federal courts.

    Did I guess right? (It's probably obvious, but IANAL.)

    If I'm right, is it impossible, or just uncommon for federal laws to affect state courts? Could the law have been written to have the anti-SLAPP effect while leaving the cases in state courts?

  5. babaganusz says

    "Diversity jurisdiction" is when the plaintiffs and defendants are all from different states, and the amount in controversy is more than $75,000.

    is that value threshold tied to any kind of index, or will it only rise or fall through explicit amendment? or Other?

    likewise (if anyone's in the mood) for any such threshold/bracket*, whether or not the principles are identical/similar/don't-cross-the-streams, etc.

    *e.g. the gradation from one degree to the next for theft, malicious mischief, etc. charges based on $ amounts.

  6. En Passant says

    Superb synopsis and analysis. Minor typo nit, boldface emphases mine. I think

    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.

    should read "if they want to file a federal anti-SLAPP motion under the Act."

  7. En Passant says

    babaganusz May 18, 2015 at 12:21 pm:

    is that value threshold tied to any kind of index, or will it only rise or fall through explicit amendment? or Other?

    Statutory. See 28 U.S. Code § 1332 – Diversity of citizenship; amount in controversy; costs.

  8. nartreb says

    Babaganusz, very first line. Will be changed the next time the Congress gets around to fundamentally reorganizing the Federal court system; in other words, I'd bet against it hapenning in my lifetime. The increase in removal jurisdiction under the current bill is just barely feasible, I'd give it 50% odds of passing in the next ten years, and that'll be about it for any changes to the federal judicial system for a while, with the possible exception to some small and complicated tweaks to how patent cases are handled.

    There are a few examples of automatic indexing in US law (e.g., food assistance is tied to the poverty line which is reported every year ) but they're uncommon. Generally what you'll see is that state legislatures get around to fixing things (minimum wage, petty vs grand theft) about ten or twenty years after they should, and the feds may or may not follow sometime after that.

  9. ppnl says

    Seriously guys what is wrong with this site?

    Any link I put in favorites does not show new posts. Even clicking on the Popehat banner does not take me to current Pophat. It workes this way in firefox, chrome and IE. The only way I can get current material is by clicking on the author link on the side.

    Is nobody else having this problem? dId Popehat institute a secret handshake to block the unwanted? Maybe I need to order the secret decoder ring?

  10. AlanF says

    I've had the same problem with this site, unlike almost all others.
    Now, I click on the bookmark, then force a complete reload (press the
    Shift key and click Refresh). This overrides whatever is wrong with
    the site's handling of cached versus new material. The downside is
    that it increases use of the site's bandwidth because *everything* has
    to be downloaded, rather than just new stuff.

  11. Matt says

    So, a question – let's say this bill (or a similar one) passes that *doesn't* expand the removal. Does that basically mean that if my neighbor sues me, I'm stuck with whatever (if any) anti-SLAPP protections I have at the state level?

  12. Fasolt says

    @ I Was Anonymous:

    I wonder how much The Prenda gang offered those people on the "DSA" to sell their souls? Or, perhaps, they are greedy, blood-sucking parasites as well and don't care who they associate with to get their piece of the ill-gotten pie.

  13. Dragonmum says

    @I Was Anonymous:
    Holy Cow! (Oh, sorry Via Angus… ) Why haven't Hansmeier and Steele been disbarred yet? What a wonderful new scam – disability trolls. This time they're out to destroy hundreds of small businesses in MN and IL. I'm getting my popcorn stockpile ready.

    OOps – put in typo in email addy – delete this, I'll post again

  14. Dragonmum says

    @I Was Anonymous:
    Holy Cow! (Oh, sorry Via Angus… ) Why haven't Hansmeier and Steele been disbarred yet? What a wonderful new scam – disability trolls. This time they're out to destroy hundreds of small businesses in MN and IL. I'm getting my popcorn stockpile ready.

  15. ppnl says

    Shift reload wasn't working for me until I figured out that you had to click open the drop down menu before holding the shift key.

    Weird thing, After getting firefox to load the page IE loaded it correctly. And continues to load properly. Firefox is stuck again.

    Anyway I can read along now but this is really bad behavior from blog software.

  16. ketchup says

    I have the same problem regarding the site. I have to manually reload to get new content if in a regular browser window. Opening the page in an incognito window also works, presumably because incognito mode does not save an old copy of the page in cache and thus has to load the current copy every time. My popehat RSS feed has also stopped displaying new posts. I haven't found a work-around yet other than un-installing and re-installing my RSS extension. That is more trouble than it is worth so I have given up on Popehat's RSS feed.

  17. says

    Is this thing even constitutional? If there is no diversity and there isn't a "claim" that "arises under" a federal law, how do you get to Article III jurisdiction? Under traditional interpretation, a federal defense to a state law claim does not meet the test for removal jurisdiction, as the suit could not be brought in federal court in the first instance. So, does passing a statute that removal jurisdiction exists over a certain category of state law claims make them "arise under" a federal law? I don't know, my head hurts.

  18. ElSuerte says

    I just wanted to thank Ken and Patrick because Popehat's coverage of first amendment issues helped me ace the defamation portion of my business law class.

  19. TXDave says

    Great summary.

    Tech note: Header info is still reporting a last changed date of sometime last century.

    Workaround: CTRL+F5 in Firefox to force reload.

    Note to people having the issue: Notify WordPress, not Popehat. This is a WordPress issue as far as I can tell.

  20. Simon Spero says

    I move to remove the changes to removal since it raises subject matter jurisdictional issues (assuming no diversity or other article III grounded features apply).

    If the federal judiciary is opposed, and there's a challenge, this part of the law would have about as much chance of surviving as innocence and decency at a Pony convention.

  21. Chris says

    “The federal judiciary lobbies hard”… wait, what? Like, judges? That seems incredibly inappropriate and a clear violation of the spirit behind the separation of powers.

  22. says

    @ppnl @AlanF @ketchup @TXDave
    I, too, have to refresh two or three times to get new posts and comments. I don’t have to do this with any other site I visit.

    Note to people having the issue: Notify WordPress, not Popehat. This is a WordPress issue as far as I can tell.

    Not WordPress. It’s a template issue, most likely. A call function out of whack.

  23. NotPiffany says

    Do you think the expansion of removal jurisdiction is there to make give some protection to people in states without anti-SLAPP laws of their own?

  24. David C says

    @Chris: I don't think so. It would be silly for the federal judiciary to not be able to talk to Congress about laws that affect them. And there's certainly no such "separation" with the executive branch – the various departments, not to mention the President himself, lobby Congress all the time.

    If the lobbying involves things like seminars in Hawaii and large campaign donations, that's another thing, but that's inappropriate no matter who is doing the lobbying.

  25. Dan Weber says

    The federal judiciary lobbies hard, and will be lobbying against this Act in its present form.

    Why? My gut is that groups like laws that give more power to the group, and this would give more power to the federal judiciary. But, as you say, it also increases their workload. Are they opposed to increased workload, or is there some other stated motivation for their lobbying?

  26. mpaul says

    Speaking of SLAPP suits, when (in what decade) will the DC court of appears render a verdict in the appeal of whether an appeal is appeal-able in the Mann v Steyn-and-the-horse-he-rode-in-on suit? It seems like Mann is getting exactly what he wanted out of the justice system.

  27. nk says

    Oh, there's federal question jurisdiction if a state's defamation laws violate the First Amendment. And that will be the limit for substantive relief. Congress cannot confer greater rights, that impinge on 10th Amendment state powers, than the Supreme Court says the Constitution gives it. What the Constitution giveth, only the Supreme Court sayeth, so the substantive defenses to defamation will be the same as if the case had gone to trial in a state court under New York Times v. Sullivan and its many progeny. The differences will be the new summary motion, the interlocutory appeal if the motion is denied (that's a big one), and the attorneys fees.

    From a defense attorney's point of view, what would make me wary is res judicata (law of the case). If I lose, am I barred from bringing those defenses up again, practically giving the win to the plaintiff in some cases? The availability of appeal for a denied defense motion makes me think "final" which means "yes, I lost the whole case not just the motion and it's just a prove-up for damages now".

  28. says

    Just a note. Your link to the second, Colorado case (presumably that of SF/ Ranger phony John Giduck) goes to the first link. The case is still not final with Giduck pursuing cert to the Colorado SC, but his attorneys have deserted him and if he continues it will be pro se. It is rumored that he stiffed both the defendants (who were awarded legal fees) and his own attorneys. It is further rumored that he may not have had any other option, as he bankrupted himself with the suit.

  29. markm says

    Is it constitutional? IANAL, but it seems to me that Congress could pre-empt all state defamation law under the Due Process clause of the 14th Amendment – find that (some) states are inadequately protecting 1st Amendment rights in defamation lawsuits, also that in the era of nationwide news networks and the internet defamation is inherently not confined to state lines, and cure the issues by pre-empting state defamation laws and removing all such cases to federal courts under a uniform federal law. Maybe that's terrible policy, but IMO it's as clearly constitutional as the 1964 Civil Rights Act. But this law is only part-way pre-emption; it allows any SLAPP claim to go federal, but if the SLAPP claim fails, cases without diversity jurisdiction, or with diversity but under $75K will then go back to the state court for trial. It's unlimited Removal but only for the purpose of a possible summary judgment for the defendant. Could the courts view that as a constitutional problem?

    I do think that the two issues I mentioned with state defamation laws are real. From a policy point of view, I would change the way this law affects Removal: make it broader than the existing rules, but not unlimited. Eliminate the minimum $ value; a $74,999 lawsuit, or even a $4,999 one, can still intimidate bloggers and small-town newspapers, so SLAPP protection is needed against ill-founded lawsuits for any quantity. Besides diversity jurisdiction, allow using the federal SLAPP even if all defendants and plaintiffs are from the same state but claimed damages include effects in other states.

    Or simply pre-empt state defamation laws to the extent of requiring that a losing plaintiff must pay the defendant's legal expenses plus damages for any suppression of speech during the suit.

  30. says

    Having won one of these suits, it's the legal fees more than the amount of the suit that is a deterrent. Some ex-con wants to sue me for $10 million? That's hilarious. Having to pay lawyers for all the work dealing with him? That's insane. And being awarded legal fees isn't the same as receiving legal fees. That sucks, because the vast majority of these suits seem to be about intimidation, harassment, and maintaining a narcissist's view of the world. Alas.