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DC Appeals Court Says Anti-SLAPP Laws Shouldn't Apply In Federal Courts

from the ruh-roh dept

Tue, Apr 28th 2015 3:58pm — Mike Masnick

We've discussed for quite some time the importance of anti-SLAPP laws, and how it's ridiculous that we don't have a federal anti-SLAPP law. Once again, anti-SLAPP laws are used to toss out bogus lawsuits that were clearly filed for the sake of silencing someone's speech (SLAPP stands for "Strategic Lawsuit Against Public Participation"). Right now only some states have them, and there are many variations in the various state laws, with some much better than others. Unfortunately, a new ruling in the DC Circuit appeals court may makestate anti-SLAPP laws much less effective. That's because it says, more or less, that state anti-SLAPP laws only apply to cases in state/local courts, and not those that are in federal court (such as any case between two parties in different states).

Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment. But the D.C. Anti-SLAPP Act nullifies that entitlement in certain cases. Under the D.C. Anti-SLAPP Act, the plaintiff is not able to get to trial just by meeting those Rules 12 and 56 standards. The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.

In other words, in the DC Circuit, this finding says that as long as the dispute is between two parties in different jurisdictions, the anti-SLAPP law is basically toothless. Its reasoning is that Federal Rules of Civil Procedure list out the processes under which a court can dismiss a claim before a trial, and it doesn't include the same process as the anti-SLAPP process. And thus, the Federal Rules effectively overrule any local anti-SLAPP law in federal court.

As Paul Levy notes in the link above, this finding goes against findings in the First, Fifth and Ninth Circuits and creates a circuit split that he hopes will be appealed to the Supreme Court (even though the appeals court eventually did dismiss the case on other grounds).

Either way, this really (once again) reinforces the absolute need for a strong federal anti-SLAPP law. Not only would it solve messes like this, but it would protect free speech rights across the country, rather than allowing some states to protect them, while others allow people to be silenced via bogus lawsuits.

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Filed Under: anti-slapp, circuit split, dc circuit, diversity, federal courts, free speech

13 Comments

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Anonymous Coward, 28 Apr 2015 @ 4:03pm

Popehat lawsplainer
Ken White's “Lawsplainer: Why The D.C. Circuit's Anti-SLAPP Ruling Is Important” (Popehat) is worth highlighting.
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Anonymous Anonymous Coward, 28 Apr 2015 @ 4:45pm

Re: Popehat lawsplainer
Damn, I like his style. Very clear, and funny to boot. Way to go Ken.
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Anonymous Anonymous Coward, 28 Apr 2015 @ 4:47pm

Too many lawyers
Are there too many lawyers with 'friends' in the lawsuit business to get Federal Anti-SLAPP legislation through?
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Anonymous Anonymous Coward, 28 Apr 2015 @ 4:48pm

Re: Too many lawyers
Dangit, I meant to say in Congress.
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Dave Cortright (profile), 28 Apr 2015 @ 4:52pm

Seems like a no-brainer for an up and coming congressperson
So why hasn't that happened yet? What am I missing?
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That One Guy (profile), 28 Apr 2015 @ 4:53pm

Re: Re: Too many lawyers
That is one of the main stumbling blocks against federal anti-SLAPP laws yes, lawyers who are not pleased with the idea that a lawsuit can be shot down at the outset, instead of them being able to rack up a ton of billable hours.
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That One Guy (profile), 28 Apr 2015 @ 4:55pm

Re: Seems like a no-brainer for an up and coming congressperson
Money, pools of money, coming from those that rather like the system as it currently stands. Not to mention I'm sure more than a few of them, either directly or through friends, quite like the idea of being able to silence pesky people with frivolous lawsuits, so why would they want to take that ability away?
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James Burkhardt (profile), 28 Apr 2015 @ 7:27pm

Hate to say. I think I agree with this ruling. As someone who almost faced a SLAPP lawsuit (I wasn't the person they even wanted to sue, but I wasn't going to admit that because I wanted to have them explain to a judge how they determined I was the one running the website), the lack of an anti-SLAPP law in Nevada at that time (it wouldn't become law until a year later) was a nightmare for me. But I agree that they probably should apply to federal cases. And I agree with Mike, this only highlights the need for a Federal Anti-SLAPP law to protect 1st amendment speech
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CharlieBrown, 28 Apr 2015 @ 8:42pm

Interpretation
If I'm reading this right, they're basically claiming the first ammendment apples to SLAPP suits and so anti-SLAPP would be anti-first ammendment.
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That One Guy (profile), 28 Apr 2015 @ 8:51pm

Re: Interpretation
Not quite. If I understood Ken's write-up on the case correctly, the matter is more a procedural one, where the DC judges found that anti-SLAPP laws in this case were 'redundant' when considering other laws regarding how and when you can ask for a case to be dismissed.

On the one hand, I can sorta see their point, but at the same time, the entire point of anti-SLAPP laws is to defang the threat of a lawsuit when using it to threaten or retaliate against someone, something which regular procedure with regards to the how and when when it comes to lawsuits lack(which are the entire purpose SLAPP lawsuits are so effective, because even if they are completely bogus, 'regular' rules don't allow someone to get out from under them without paying dearly in the process).
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Anonymous Coward, 28 Apr 2015 @ 9:09pm

Re: Interpretation
If I'm reading this right...
if (FALSE) then you are reading it right.
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Rekrul, 28 Apr 2015 @ 10:44pm

Maybe someone not from DC should sue that judge for being a moron.
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Anonymous Coward, 29 Apr 2015 @ 7:11pm

Re:
Sadly, the judge is doing this right. The lack of a federal anti-SLAPP law is problematic for exactly this reason: federal law, where it applies, trumps local law. To do it any other way would invite chaos. So, federal law lacks anti-SLAPP laws? The judge has no choice but to apply the non-anti-SLAPP federal law over the local law.
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