The Last Lecture: State Anti-SLAPP Statutes and the Federal Courts

Abstract

The federal courts have their own housekeeping rules in civil litigation: the Federal Rules of Civil Procedure. Under those rules, a plaintiff need not marshal evidence at the pleading stage, just a statement of facts showing her entitlement to relief. Discovery is generally available. Summary judgment only tests whether there are factual disputes necessitating a trial, and the trial court does not weigh any evidence. And there is generally no immediate right to appeal a denial of a dismissal motion. Those rules have governed federal court civil litigation for decades—without much fuss. Until now. Several states have enacted anti-SLAPP statutes to expeditiously dismiss free speech litigation. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” The most stringent anti-SLAPPs serve strong measures to achieve their ends: an accelerated dismissal motion soon after suit is filed; a complete stay of discovery; all the while, the plaintiff must, at the pleading stage, come forward with evidence to establish her prima facie trial burden; mandatory attorney’s fees and costs to the prevailing defendant; and an immediate appeal if a court denies the dismissal motion. By their design and effect, however, anti-SLAPP statutes operate differently than the Federal Rules of Civil Procedure. So far, the federal appellate courts have split on whether anti-SLAPPs (and their unique early dismissal regimes) can co-exist with the federal rules in diversity jurisdiction cases. The First and Ninth Circuits have embraced anti-SLAPP statutes, while the Second, Fifth, Tenth, Eleventh, and the D.C. Circuits—all have not. The U.S. Supreme Court has not yet weighed-in on this debate. This article adds four ideas to this complex area of law. First, we contend that Shady Grove Ortho. Ass’n v. Allstate Ins. Co., 559 U.S. 393 (2010) controls the anti-SLAPP applicability question. We contend that, properly understood, Shady Grove leaves no room for most anti-SLAPP statutes in federal court. Second, we delve into the preemption debate: do the Federal Rules of Civil Procedure preempt state civil procedural laws under preemption principles? Analyzing a recent six-justice ruling, we contend the U.S. Supreme Court thinks they do. Third, the article analyzes whether proponents of anti-SLAPPs are correct that the provision of attorney’s fees and the burden-shifting frameworks of anti-SLAPP laws makes them substantive for Erie purposes. We show that those claims are misplaced for most quintessential anti-SLAPPs, critiquing Ninth and Tenth Circuit anti-SLAPP jurisprudence. Finally, using Clifford v. Trump (tweet lawsuit) as a case study, we suggest a framework for principles of comity in inter-circuit splits about anti-SLAPPs.