By Josephine Petrick & Breana Burgos
2019 was another active year for federal appellate anti-SLAPP opinions. Most notably, the circuit split deepened over whether state anti-SLAPP laws even apply in federal court.
Despite an earlier trend of federal courts applying state anti-SLAPP laws under Erie, recent decisions may reflect a new trend toward limiting or even eradicating the application of state anti-SLAPP laws in federal court—even in the Ninth Circuit. Given the current robust circuit split and many intracircuit tensions discussed below, this is an issue that the U.S. Supreme Court or en banc circuit courts may be called on to resolve in the months and years to come. These developments are a further testament as to why Congress should consider enacting a federal anti-SLAPP law. Here’s an overview of the current circuit split and recent developments in 2019.
State Anti-SLAPP Laws Protect the Right to Free Speech and Petition
About 34 states, including California, have legal protections against SLAPPS—“Strategic Lawsuits Against Public Participation.” See Public Participation Project, https://anti-slapp.org; Thomas R. Burke, Anti-SLAPP Litigation, §§ 8.1-8.35 (The Rutter Group 2019); see, e.g., Cal. Civ. Proc. Code § 425.16. SLAPP laws provide for the early dismissal of causes of action that arise from acts in furtherance of the rights of petition or free speech. In many jurisdictions including California, prevailing defendants are entitled to attorney fees to deter SLAPPs from being brought. Cal. Civ. Proc. Code § 425.16(c)(1).
No Federal Anti-SLAPP Protection Means More Forum-Shopping
Despite the importance of anti-SLAPP protections among the states, there is currently no federal law to provide uniform protection for free speech and petitioning activity throughout the nation. The lack of national uniformity encourages forum-shopping when plaintiffs reasonably anticipate that their complaints may be regarded as SLAPPs.
Compounding the forum-shopping problem is the fact that the federal circuit courts are split over whether anti-SLAPP motions may be brought in federal court at all under the Erie doctrine. (To see how the circuits split on this question, jump to the chart below.)
The Erie line of authorities, applicable in diversity cases, holds that substantive state law must be applied in federal courts, but that state procedural law yields to the applicable Federal Rules. Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Hanna v. Plumer, 380 U.S. 460, 465 (1965).
So anti-SLAPP laws only apply in federal court if they are (1) substantive and (2) do not conflict with the federal rules. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559 U.S. 393, 398-99 (2010) (plurality op.) (clarifying rule in class action context); Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (Kavanaugh, J.) (state anti-SLAPP act); Colin Quinlan, Note, Erie and the First Amendment: State Anti-SLAPP Laws in Federal Court After Shady Grove, 114 Colum. L. Rev. 367 (2014).
The Federal Fifth Circuit Deepens the Circuit Split, Refusing to Apply Texas’ Anti-SLAPP Statute
The federal circuit split only deepened in 2019 when the Fifth Circuit departed from its own authority and held that Texas’ anti-SLAPP statute does not apply in federal court.
In Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019), a case arising out of Texas, the Fifth Circuit not only deepened the circuit split—parting ways with the Ninth Circuit and other circuits applying anti-SLAPP laws in federal court—but it also arguably created an intra-circuit split with its own precedent coming out of Louisiana, Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168-69 (5th Cir. 2009).
Klocke arose from a verbal altercation between two students, Thomas Klocke and Nicholas Watson, at the University of Texas at Arlington. 936 F.3d at 242. Klocke alleged that Watson sexually harassed him. Watson complained to school administrators that Klocke allegedly directed a homophobic slur toward him. Id. After an investigation that Klocke said violated his due process rights, the University disciplined Klocke by, inter alia, refusing him permission to graduate. Id. Klocke then tragically died by suicide. Id.
Klocke’s estate pursued claims against Watson for defamation and against the University for due process violations. Id. at 242-43. Watson moved to dismiss under Texas’ anti-SLAPP statute, the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Id.
The district court granted Watson’s anti-SLAPP motion and awarded him attorney fees, and Klocke appealed. Id. at 243.
The Fifth Circuit reversed and held that the TCPA does not apply in federal court. Id. at 245-46. The court observed that members of the U.S. Supreme Court recently attempted to clarify the Erie analysis. Id. at 244-46 (citing Shady Grove, 559 U.S. at 398-99 (plurality op.), and Abbas, 783 F.3d at 1333 (Kavanaugh, J.)). As the Fifth Circuit explained, Shady Grove and Abbas, read together, “hold that a state rule conflicts with a federal procedural rule when it imposes additional procedural requirements not found in the federal rules. The rules ‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of litigation.” 936 F.3d at 245.
In the case of the TCPA, the court reasoned that it imposes a more exacting pleading standard than the FRCP do on a motion to dismiss, because the TCPA requires that a court determine by a preponderance of the evidence whether the action relates to a party’s exercise of his First Amendment rights and, if so, whether there is “‘clear and specific evidence’” that the plaintiff can meet each element of his claim. Id. at 246. Thus, the TCPA imposes additional procedural requirements not found in the federal rule—and therefore conflicts with the FRCP and cannot apply in federal court. Id. at 246-48.
In so ruling, the Fifth Circuit observed that it had come to an arguably inconsistent position in Henry, 566 F.3d at 168-69, which approved applying Louisiana’s anti-SLAPP statute in federal court. 936 F.3d at 248. While the Klocke panel attempted to distinguish Henry on the ground that Louisiana’s anti-SLAPP law bore more evidentiary similarity to a federal motion for summary judgment, the Klocke panel also suggested that Henry was no longer good law because it “did not discuss the potential conflict between the state law and federal rules, and [it] preceded the decision in Shady Grove.” 936 F.3d at 248-49. As a result, the precedential effect of Henry on this point is in question. See id.
Interestingly, Judge Barksdale was on the panels for both Henry and Klocke. He did not author either opinion nor write separately in either case.
Despite an earlier trend of federal courts applying state anti-SLAPP laws under Erie, the courts’ recent decisions in Abbas, Klocke, and Planned Parenthood may reflect a new trend toward limiting or even eradicating the application of state anti-SLAPP laws in federal court—even in the Ninth Circuit, an early adopter of the opposite approach. See Gary A. Watt, California anti-SLAPP in the 9th Circuit: Can it survive? Daily Journal.
The U.S. Supreme Court recently declined to review the Ninth Circuit’s opinion in Planned Parenthood. Ctr. for Med. Progress v. Planned Parenthood Fed’n of Am., 139 S. Ct. 1446 (2019). Nevertheless, given the current robust circuit split and many intracircuit tensions outlined above, this is an issue that the U.S. Supreme Court or en banc circuit courts may be called on to resolve in the months and years to come.
All this is further testament as to why Congress should consider enacting a federal anti-SLAPP law. See Mark Goldowitz, Jeremy Rosen, & Josephine K. Mason, Why We Need a Federal Anti-SLAPP Law, Daily Journal.
The Current Circuit Split Over State Anti-SLAPP Laws in Federal Court
As noted, at the close of 2019, the federal circuit courts remain hopelessly split over whether state anti-SLAPP laws may apply in federal diversity cases under Erie. Here is how the federal courts come down on this question.