What Is An Anti-SLAPP, Anyway? A Lawsplainer Series

Back in 2020 I started a lawsplainer series about anti-SLAPP statutes aimed at explaining what they are, how they work, and why they matter to a wide audience. I wrote three chapters and then Stuff Happened. Doesn’t it always?

But anti-SLAPP statutes are as important as ever and are increasingly prominent in the news. They’ve been on my mind for two reasons. First, I’ve filed an unusual number of anti-SLAPP motions this year, and just received a fantastic tentative ruling on appeal on one of them. Watch this space! Second, people — particularly powerful and rich people — are getting more litigious in response to criticism. Bogus litigation to punish dissent is common, as are overt threats by the powerful.

With that in mind, I am reviving the series. Remember the big picture: a SLAPP is a Strategic Lawsuit Against Public Participation — a bogus lawsuit to shut you up or punish you for speaking. An anti-SLAPP statute is a law — all state laws so far — that gives you special protections against a SLAPP, and an anti-SLAPP motion is a special procedural vehicle created by an anti-SLAPP statute that lets you ask the court to dismiss a SLAPP.

Here’s a reminder of what’s come before:

Chapter One defined terms like “SLAPP” and “anti-SLAPP statute” and “anti-SLAPP motion” and explained why the civil litigation process does a bad job of protecting you from abusive defamation claims without an anti-SLAPP statute.

Chapter Two explains what an anti-SLAPP statute does: how it gives a defendant a special tool, an anti-SLAPP motion, that is much more effective at defending a bogus claim designed to suppress speech.

Chapter Three explains why some anti-SLAPP statutes are very strong and effective and why other are inadequate and ineffective. This chapter tells you what to look for in a statute that will protect your free speech rights from vexatious litigation.

This time, I’m explaining how anti-SLAPP statutes work in federal court. The short answer is that they often don’t depending on where the lawsuit was filed.

Anti-SLAPP statutes are state laws, at least so far — next time watch this space for an argument about why we need a federal anti-SLAPP statute. There’s a dispute about whether, and to what extent, they apply to cases in federal court.

To understand this you have to know a little about — God save you — federal court jurisdiction. Federal courts are courts of limited jurisdiction — that means they can only hear cases as permitted by the U.S. Constitution or federal laws. The main types of federal court jurisdiction, simplified, are these:

Federal question jurisdiction: If someone sues me under RICO, a federal statute, a federal court can hear it.

Diversity jurisdiction: Federal courts can also hear cases when all of the plaintiffs are from a different state from all of the defendants, and a certain amount of money is in controversy. So if someone from, say, Florida sues me, a California resident, a federal court can hear it if they’re suing for more than $75,000, even if they are bringing a state claim and not a federal one. There are exceptions and complications, but that’s “diversity.” Diversity jurisdiction reflects an ancient concern that state courts might be prejudiced against parties from another state, and an ancient belief that federal court’s won’t be. Diversity jurisdiction ensures that parties will only face prejudice based on race, religion, wealth, and subject matter of the litigation.

Supplemental Jurisdiction: When a federal court has federal question jurisdiction over a case because it includes a federal claim, it may also consider state law claims also brought in the case. So, if our hypothetical person sues me for RICO, they can also bring state law claims for defamation and hurtfulness and what-have-you and the federal court can hear those. This is called supplemental — or sometimes ancillary or pendent — jurisdiction. There are naturally exceptions and complications, and a federal court isn’t required to hear those state claims. For instance, if the factual or legal disputes raised by the state claims overwhelm the federal claim, or if the judge dismisses the federal claim, the federal judge can say “get your broke ass back to state court with that shit, we do important things here,” in so many words.

All of this creates a question: what law applies in federal court? When does federal law apply and when does state law apply? Law nerds will talk at you about this until you bleed out the ears but the basic rule is called the Erie doctrine: in handing state claims before them, federal judges apply state substantive law and federal procedural law. So the Federal Rules of Civil Procedure govern things like “when can you file a motion to dismiss and on what grounds,” and state law governs things like “when this dude Tompkins got hit by a train and lost an arm in Pennsylvania and sued the Erie Railroad in federal court under diversity jurisdiction, Pennsylvania’s law determines whether he’s out of luck because he was trespassing when he was hit.”

I swear to God we’ll be talking about anti-SLAPPs again now.

Anyway, sometimes the difference between procedural and substantive law is clear, and sometimes it isn’t. (Let’s not even talk about the dog’s breakfast that’s the discussion of which state’s substantive law should apply.) Federal courts have disagreed whether state anti-SLAPP statutes provide merely procedural protection — basically a rule of civil procedure applicable in the courts of that state — or a substantive legal protection for free speech that should be applied. This has resulted in a split of the different Circuits of the United States Court of Appeal. Take the Fifth Circuit. Now that InfoWars is shut down, the Fifth Circuit is the most reliable place to go for an explanation of how woke college kids have destroyed America. The Fifth Circuit’s view is that state anti-SLAPP statutes do not apply in federal court because they are procedural and often contradict federal procedural rules. Some other circuits take a different approach, looking at state anti-SLAPP statutes provision by provision and applying the provisions that don’t directly conflict with the Federal Rules of Civil Procedure. That’s the rule here in the Ninth Circuit.

That’s all simplified and summarized, as I am sure commenters will tell you in detail. But the bottom line is that if you’re sued for your speech on state law claims in federal court, in some places (like California) you can take advantage of the state’s excellent anti-SLAPP statutes, and in some states (very notably Texas recently) you can’t because of this disagreement among circuits about whether and how anti-SLAPP statutes apply in federal court.

This incentivizes people bringing SLAPP suits to bring them in federal court in places like Texas. That’s exactly what Donald Trump did when he brought a case against CBS News that is widely perceived as extremely frivolous in federal court in Texas. This is related to, but distinct from, parties judge-shopping by bringing cases in federal districts that feed to a single judge perceived as favorable. 

So what’s the solution? In our next chapter, I’ll discuss it: it’s time for a federal anti-SLAPP statute. Not only will that protect free speech in federal court, discourage forum-shopping, and eliminate frivolous cases, it can expand anti-SLAPP protections to cover some federal claims. We’ll talk about it soon. Like, this-year soon.