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Not long after a federal anti-SLAPP bill with bipartisan co-sponsors was introduced in the U.S. House of Representatives last month, the Washington State Supreme Court struck down that state's anti-SLAPP law, saying it denied litigants their right to a trial by jury. As anti-SLAPP laws become ever more important to journalists, the loss of a strong state statute leaves many hoping that the federal effort will finally bear fruit.
If enacted, the federal SPEAK FREE Act, introduced by Reps. Blake Farenthold, R-Texas, and Anna Eshoo, D-Calif., would be an important step toward nationwide protection against meritless suits that chill speech.
A SLAPP suit is a "strategic lawsuit against public participation," or an attempt by one party to silence another in a controversy by burdening them with litigation.
A federal anti-SLAPP bill would fill current gaps in protection by providing a uniform defense against SLAPP suits nationwide, addressing the problems of some courts not applying state anti-SLAPP laws in federal court and other states not having anti-SLAPP legislation at all. The SPEAK FREE Act is largely based on the strong anti-SLAPP laws of Texas and California. While some worry that the ease with which defendants can remove actions to federal court would be a burden on the federal court system, proponents of the law argue that the burden will be minimal and that the removal provision is critical to the law’s effectiveness.
The bill's other co-sponsors are Reps. Darrell Issa, R-Calif., Trent Franks, R-Ariz., and Jared Polis, D-Colo.
The anti-SLAPP statutes on the books in 28 states and the District of Columbia vary widely, but their general aim is to make it easier for defendants to dismiss lawsuits designed to intimidate speakers or bury them in legal fees, even though the claims are without merit. By suing for defamation or other speech-related claims and embroiling defendants in litigation, SLAPP plaintiffs effectively silence valuable public discourse. Stronger anti-SLAPP laws put the burden of proof on plaintiffs to show that their claims are not frivolous and allow defendants to move for dismissal if that showing cannot be made. Some of the weaker state anti-SLAPP laws only apply to narrow categories of speech, such as speech made in connection with a government proceeding.
Mirroring the Texas and California anti-SLAPP laws, the SPEAK FREE Act would broadly apply to lawsuits involving speech "in connection with an official proceeding or about a matter of public concern." The bill further gives relatively robust protection to speakers by putting the burden of proof on the plaintiff to avoid dismissal with prejudice by demonstrating that the claim is likely to succeed on the merits. The stay on discovery imposed during the adjudication of an anti-SLAPP motion to dismiss is also important in preventing a chilling effect on speech, as involving defendants in expensive, time-consuming discovery is another way to intimidate and silence. Finally, the act would award costs and reasonable attorney's fees to a defendant who prevails on an anti-SLAPP motion.
A significant feature of the law is its allowance for removal of state court cases implicating speech issues to federal court for consideration of the anti-SLAPP motion. If the federal court dismisses the motion, the action is remanded back to state court.
Evan Mascagni, policy director of the Public Participation Project, which was a driving force behind the bill, said concerns that the removal provision would burden the federal court system with many more cases are unfounded. The number of cases involving anti-SLAPP motions is very small in comparison to the overall number of civil cases, he said, citing California as an example. And yet, the number is significant enough to show that SLAPP suits are a problem, he said.
According to Mascagni, the law must provide for removing SLAPP suits to federal court because the protections against SLAPPs vary widely from state to state, with some states having strong anti-SLAPP laws and others having very weak laws or none at all. A federal law from which anyone could benefit would discourage the forum-shopping that happens now.
“The removal provision is for individuals who live in states without any anti-SLAPP protection, which is almost half the states,” he said. “For me, the whole purpose of a federal anti-SLAPP law would be to provide uniform protection against SLAPPs for all Americans, no matter what state they live in.”
Coming on the heels of a decision by the U.S. Court of Appeals for the District of Columbia, which ruled in Abbas v. Foreign Policy that the D.C. anti-SLAPP law does not apply in federal court, the introduction of a federal anti-SLAPP bill is a welcome step forward for journalists. Federal anti-SLAPP legislation has been proposed in Congress in recent years but has not gained the momentum to become law. The House of Representatives first considered such a bill, the Citizen Participation Act of 2009, several years ago, but the act stalled in the House Judiciary Committee without moving to the floor for a vote, and similar bills have not progressed farther.
The Abbas decision
The decision of the U.S. Court of Appeals for the District of Columbia to throw out a defamation suit in Abbas v. Foreign Policy in April was a bittersweet victory for First Amendment advocates, as the court also decided that the D.C. anti-SLAPP law did not apply in federal court. This negative result shows clearly why Congress should pass federal anti-SLAPP legislation that would protect speakers who cannot benefit from their state’s anti-SLAPP law, as well as those in states that have no such law.
The court’s ruling that the questions posed in Foreign Policy’s article on Yasser Abbas were merely questions and not actionable defamation was indeed welcome. In asking questions such as whether Abbas, a son of Palestinian Authority President Mahmoud Abbas, and his brother were “growing rich off their father’s system,” Foreign Policy writer Jonathan Schanzer was not making factual representations, the court held. Reporters ask questions to obtain information, the court wrote, and “a severe infringement on free speech” would result if those questions could not be asked.
But the troubling aspect of the court’s opinion was the holding that the D.C. anti-SLAPP law was inapplicable because the case was in federal court, and thus the D.C. law was preempted by federal procedural rules that supposedly addressed the same issue. The D.C. Anti-SLAPP Act, passed in 2010, makes it easier for defendants to dismiss meritless lawsuits consisting of “any claim arising from an act in furtherance of the right of advocacy on issues of public interest.”
“Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court,” the court wrote. “A federal court must apply those Federal Rules instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.”
Since the federal rules do not require a plaintiff to show a likelihood of success on the merits, while the D.C. anti-SLAPP law does, the court held that the federal rules governed. And because the D.C. law was inapplicable, the media defendants were not entitled to attorney’s fees following the dismissal of the action.
The D.C. government had supported the applicability of the law in federal court with an amicus brief to the Court of Appeals. The Reporters Committee also joined an amicus effort supporting the defendants.
Several federal appellate courts, including the First, Fifth, and Ninth Circuits, have previously held that state anti-SLAPP laws apply in federal court. But the possibility that other courts would decide the issue differently is partly responsible for a push for federal anti-SLAPP legislation. In addition, efforts have been spurred by the fact that many states do not have such statutes and others only have narrow protections, such as only applying to speech on matters before public bodies.
Washington's anti-SLAPP law is struck down
In a disappointing ruling in May, the Washington Supreme Court struck down the state’s anti-SLAPP law in its entirety, holding that it violates the right to trial by jury under the Washington Constitution.
The decision marks the first time an anti-SLAPP law has been held unconstitutional. The Washington law, RCW 4.24.525, required judges to weigh the disputed facts of cases and dismiss them if they determined that the plaintiff could not show by clear and convincing evidence a probability of prevailing on the claim. The Washington Supreme Court held that it must be juries, not judges, who make those determinations of fact.
The wide latitude that judges have to dismiss potentially nonfrivolous claims is what led the high court to find that the right of trial by jury was jeopardized.
“RCW 4.24.525(4)(b) creates a truncated adjudication of the merits of a plaintiff’s claim, including nonfrivolous factual issues, without a trial,” the Court wrote. “Such a procedure invades the jury’s essential role of deciding debatable questions of fact.”
Particularly problematic was the high standard of proof that the law required for plaintiffs to show that their case had merit. While the Washington law required plaintiffs to show by “clear and convincing” evidence a probability of prevailing, other anti-SLAPP laws require a lesser showing, such as “sufficient” evidence.
Finding that the section of the law allowing for swift dismissal of suits was not severable from the remainder of RCW 4.24.525, the Court struck down the entire law.
“Naturally, we’re disappointed,” Bruce Johnson of the firm Davis Wright Tremaine LLP, which represented the defendants, said. “The 2010 law was designed to enable ordinary citizens to participate in discussions of public matters without fear of expensive and debilitating retaliatory litigation. That risk has returned, unfortunately.”
The Reporters Committee, joined by 29 other media parties, submitted an amicus brief in support of the defendants.
The decision of the Washington Supreme Court has already affected at least one other state’s anti-SLAPP law. Lawmakers in Nevada, facing attempts to modify their own law, agreed to change the standard of proof from “clear and convincing” evidence to the lower standard of “prima facie” evidence of a probability of prevailing. It remains to be seen whether the decision will affect the laws in other states. The proposed federal anti-SLAPP law requires that a plaintiff show that a claim is likely to succeed on the merits.
This story combines and updates three stories that initially appeared on our web site in April and May.