Let's get this straight from the start: I'm in favor of anti-SLAPP statutes and vigorous legal protections for free speech. I'm just not convinced that federalizing libel law is the right way to go about it.
Last week Marc Randazza touted Congressman Steve Cohen (D-TN)'s Citizen Participation Act, a federal anti-SLAPP statute. It's been boosted elsewhere as well. Randazza is absolutely the cat's ass on First Amendment issues — he has more fun than should be legal eviscerating opponents of free speech. I was happy to hear his call to make March "National SLAPP month," and remain happy even after Patrick explained to me that it doesn't mean I actually get to hit anyone. But I'm not entirely with Marc on Rep. Cohen's bill.
First things first: for those not in the know, an anti-SLAPP statute protects litigants from meritless and/or frivolous lawsuits attacking protected speech. The statutes differ substantially among the few jurisdictions that have them, but they all share the same core idea: when plaintiffs sue defendants for certain types of speech, defendants should be able to force the plaintiff to convince a judge that they have a case before they force defendants to incur ruinous litigation costs. Some anti-SLAPP statutes are vigorous and effective, like California's. I'm very fond of California's anti-SLAPP statute, under which a judge recently ordered a plaintiff to pay my client nearly $35,000 in attorney fees. Other states, however, have narrow, weak, or ineffective anti-SLAPP statutes — take Maryland, for instance. Many jurisdictions have no anti-SLAPP statutes at all. There's no existing federal anti-SLAPP statute, though federal courts have sometimes applied state anti-SLAPP statutes to pendant state claims or state claims in diversity cases.
Rep. Cohen's Citizenship Participation Act — the text of which Marc hosts over at the Legal Satyricon — is aimed at creating a uniform anti-SLAPP statute. It's modeled closely after the California act. Under it, the defendant-movant has the initial burden of establishing that a claim arises from an act "in furtherance of the constitutional right of petition or free speech." The bill defines such acts as follows, tracking (but compressing) language in the California act:
The term ‘‘act in furtherance of the right of free speech’’ includes but is not limited to—
(A) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
(B) any written or oral statement made in a place open to the public or a public forum in connection with an issue of public interest; or
(C) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in
connection with an issue of public interest.
Note that this does not include all speech, and therefore does not provide a defense against all defamation claims. It protects everything said about pending cases or matters before legislative or executive bodies. But it only protects issues of "public interest" on other topics. In California, this has been interpreted to include issues of interest to broad groups of the public, but not to private disputes. See, e.g., Du Charme v. International Broth. of Elec. Workers, Local 45, 110 Cal.App.4th 107 (2003) (assertion on union web site that plaintiff was removed for financial mismanagement reflected private dispute, not matter of public interest). Hence one of the main areas of dispute in California has always been what issues are of public interest and what issues are not; I would expect the same disputes under this bill.
If the defendant can make this prima facie showing, then the burden shifts to the plaintiff to show that the claim is legally sufficient (that is, not barred by the First Amendment on its face) and supported by a prima facie case (that is, based on actual evidence). If the plaintiff fails to make that showing, the court must strike the claim and award attorney fees to the defendant. If the plaintiff prevails, the court may award attorney fees to the plaintiff if the motion was frivolous. The statute has other nice touches from the California statute as well — it stays discovery until the motion is decided, requires an immediate hearing, and allows an immediate appeal of the denial of the motion (which, at least under former California law, meant that you could tie up a lawsuit for years just by filing an anti-SLAPP motion).
So far, so good. I'd welcome a federal statute that applied that rule to cases in federal court.
But here's where the Citizen Participation Act really creates a dramatic change. It lets defendants in state court remove lawsuits to federal court in order to file an anti-SLAPP motion. In other words, it creates an entirely new basis for federal jurisdiction:
SEC. 6. FEDERAL REMOVAL JURISDICTION.
(a) IN GENERAL.—A civil action commenced in a State court against any person who asserts as a defense the immunity provided for in section 3 of this Act, or asserts that the action arises from an act in furtherance of the constitutional right of petition or free speech, may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending.
Now, the statute provides that the case gets remanded to state court after the federal court rules upon the motion. But still, this is a huge addition to federal jurisdiction. It amounts to federalizing a substantial amount of defamation law and defamation cases. It would create an immense additional burden on federal dockets — and bear in mind that the competitive advantage of federal court is the comparatively lighter dockets allow for more individualized attention. Federal judges, I guarantee you, will hate it. Finally, it would pit free speech against federalism. It sends the signal that state judges can't be trusted to rule upon First Amendment or privilege issues — and encourages state court hostility towards such issues. It mandates not just a respect for constitutional rights, but a very specific procedural vehicle for pursuing them. It effectively makes federal courts the sole arbiter of freedom of petition defenses and most freedom of speech defenses in civil actions, and lets the states off the hook for defending those rights.
Do I like a vigorous defense for free speech? Absolutely. Do I think that on balance federal courts do a better job of it than state courts? In most circuits, yes. But that's still not a good reason to federalize all First Amendment litigation. Imagine for a moment if Congress passed a statute saying that every time a criminal defendant sought to suppress a confession under the Fifth Amendment or a search under the Fourth Amendment, they could remove the criminal case to federal court and get a federal judge to rule on the motion. This statute is the equivalent in the context of the First Amendment.
As much as I'd like to see the equivalent of an anti-SLAPP procedure available in each American jurisdiction, I don't think this is the right way to go about it. Ideally I'd like to see Congress pass an anti-SLAPP statute applicable to federal cases, and then have Congress and the President use their respective bully pulpits to call upon each state legislature to pass an acceptable anti-SLAPP statute within a year. Failing like, I'd like to see Congress offer incentives (such as additional funding for administration of justice) to states that pass anti-SLAPP statutes with certain minimum requirements. Failing that, I'd rather see Congress threaten to withhold existing funding to states that refuse to pass such laws. All of those measures would encourage state anti-SLAPP statutes that would allow defendants to litigate anti-SLAPP issues in state courts, and avoid federalizing the issue and choking the federal courts.
All of that said, the Citizen Participation Act is an important step towards Congressional tort reform and recognition of the damage caused by frivolous lawsuits in general and malicious free-speech-suppressing suits in particular. In addition to the misgivings above, I'd like to see Congress amend this bill to clarify a number of issues that have only been determined by a couple of decades of litigation over California's anti-SLAPP statute:
1. The bill should state explicitly that an anti-SLAPP motion can be directed even to a single cause of action. In other words, if a complaint has 10 non-speech claims and one speech claim, the defendant should be able to attack the speech claim.
2. The bill should state explicitly that a plaintiff cannot evade the effect of the anti-SLAPP act by cloaking arguments in causes of action that are not explicitly about speech. For instance, SLAPP suits frequently assert causes of action like intentional infliction of emotional distress, interference with contract or interference with prospective economic advantage, etc. The bill should specify that a claim is subject to an anti-SLAPP motion if the gravamen of the claim attacks speech.
3. The bill should explicitly state that a defendant is still entitled to fees even if the plaintiff dismisses the claim after the defendant files the anti-SLAPP motion.
4. The bill should clarify whether an appeal from the denial of an anti-SLAPP motion stays proceedings in the district court. This is a policy decision. Practically, if an appeal stays district court proceedings or remand to state court, that means that you can halt a case for years just by filing a motion.
Those changes would save us from tiresome litigation over issues already resolved in the context of the California statute.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017