In a striking decision issued on July 15, 2020, the U.S. Court of Appeals for the Second Circuit held that motions to dismiss based on state Anti-SLAPP statutes, which require that plaintiffs satisfy a high standard of proof in certain types of defamation cases, cannot be made in federal court because such motions conflict with Rules 12 and 56 of the Federal Rules of Civil Procedure.
While the Second Circuit is not the first circuit to hold that Anti-SLAPP statutes are inapplicable in federal court, the decision will have a far-reaching impact as it governs one of the most important media markets in the country. This ruling also widens a split among the federal circuits on the issue, making it more likely that the Circuits' conflict will be heading to the Supreme Court for resolution.
SLAPP is an acronym that stands for Strategic Lawsuit Against Public Participation. These are lawsuits, typically for defamation, filed in connection with a speech on public issues, intended to intimidate public speakers into silence by forcing them to incur substantial expenses defending against the lawsuits. The fear of such lawsuits has prompted more than 30 states, including California, Texas, and Connecticut — and, to a limited extent, New York — to pass so-called Anti-SLAPP laws, which generally permit a defendant in a defamation suit to dismiss that lawsuit unless, at the outset of the case, the plaintiff can satisfy a much higher standard of pleading or demonstrate through an evidentiary showing that it is likely to prevail in the suit. See Public Participation Project, State Anti-SLAPP Laws. In addition, most state Anti-SLAPP laws provide that the successful movant on a motion to dismiss brought under those statutes will recover its attorney's fees and costs. See id. The point, in short, is to make it more difficult for plaintiffs to bring defamation suits.
The case decided by the Second Circuit, La Liberte v. Reid, Case No. 19-3574, concerned Internet postings by Joy Reid, an MSNBC host, concerning a photo taken of Roslyn La Liberte, an activist against state immigration sanctuary laws, which Reid said showed La Liberte screaming racist comments at a minority teenager during a city council meeting in California. However, Reid's statements were false: the teenager himself stated publicly that La Liberte had not screamed at him or used racial slurs. La Liberte sued Reid for defamation and other claims in the Southern District of New York.
The primary question before the Second Circuit was whether Reid could invoke California's Anti-SLAPP law's heightened standard to dismiss La Liberte's suit — the parties had agreed the California law applied to the suit. The three-judge panel unanimously ruled that Reid could not use the Anti-SLAPP procedure, referred to as a special motion to strike, because it conflicted with the more lenient standards of Rules 12 and 56 of the Federal Rules of Civil Procedure. Because the Federal Rules "answered the same question" as a special motion to strike (i.e., whether to allow a defamation suit to proceed), the Second Circuit held that the Federal Rules of Civil Procedure and not state statutes govern. A complaint survives dismissal under Rule 12 so long as it pleads enough facts to state a plausible claim to relief. And a complaint survives a Rule 56 motion for summary judgment so long as the plaintiff demonstrates the possibility of prevailing by showing genuine disputes of material fact that could be resolved in its favor. In contrast, under California's Anti-SLAPP law, a complaint must be dismissed — at the outset of the case — unless the plaintiff "establishes that there is a probability that the plaintiff will prevail on the claim." Cal. Civ. Proc. Code § 425.16(b)(1) (emphasis added). This, the Second Circuit found, went too far: as "California's special motion requires the plaintiff to make a showing that the Federal Rules do not require, federal courts must apply Rules 12 and 56 instead of California's special motion to strike."
The Second Circuit's ruling in La Liberte is likely to have a significant effect on future litigation and itself be the subject of future litigation. The Second Circuit is not the first federal appellate court to hold Anti-SLAPP laws inapplicable in federal cases. The Fifth, Eleventh and D.C. Circuits have already reached the same conclusion. On the other side, the First and Ninth Circuits have found no conflict in applying Anti-SLAPP laws in federal court, although some Ninth Circuit judges have publicly disagreed with their circuit's view. But the New York media market is the largest in the country, with many potential litigation targets amenable to suit there. Any ruling that makes it easier for defamation suits to survive dismissal will encourage potential plaintiffs to look to New York when considering where to bring suit, particularly where the defendant is amenable to suit in both a district court within the Second Circuit and a district within the First or Ninth Circuits. In addition, because the Second Circuit's holding left a small door open for the application of Anti-SLAPP laws that are deemed to have a substantive, rather than procedural, the effect on defamation claims — citing Nevada's statute, which immunizes certain types of statements from defamation claims, as an example — future litigation is likely over which aspects of Anti-SLAPP laws are substantive, and thus, usable in federal court. And, in view of the widening circuit split, it is increasingly likely that the Supreme Court will finally decide the applicability of Anti-SLAPP statutes in federal courts.
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