The Need for a Federal Anti-SLAPP Law
By Daniel A. Horwitz
June 15, 2020
Lawsuits aimed at censoring constitutionally protected speech are a metastasizing scourge1Press Release, Protect the Protest, U.N. Must Examine Growing Trend Of U.S. Corporations Using Courts To Silence Dissent, Says Free Speech Group (Jan. 15, 2019), https://www.protecttheprotest.org/
2019/01/15/u-n-must-examine-growing-trend-of-u-s-corporations-using-courts-to-silence-dissent-says-free-speech-group/; Protect the Protest, Submission to the UN Human Rights Committee on US Compliance with the ICCPR (2019), http://www.protecttheprotest.org/wp-content/uploads/
2019/01/SLAPPs-Protect-the-Protest-ICCPR-Submission.pdf. that many courts have proven themselves ill-equipped to handle. Known as Strategic Lawsuits Against Public Participation, or “SLAPP suits” for short, these routine abuses of the legal process pose a constant threat to the First Amendment and undermine free expression in every U.S. jurisdiction. Given inadequate anti-SLAPP protections in many states and the ease with which even the best states’ anti-SLAPP statutes can be circumvented, a federal anti-SLAPP law is essential to defend against efforts to chill constitutionally protected speech through baseless litigation. Accordingly, Congress should enact a federal anti-SLAPP statute that applies to any claim in which the First Amendment provides a defense.
I. Practical Concerns
Civil litigation is prohibitively expensive for the vast majority of Americans, roughly 40% of whom lack the means to pay even a $400 emergency expense without going into debt.2Soo Youn, 40% of Americans Don’t Have $400 in the Bank for Emergency Expenses: Federal Reserve, ABC News (May 24, 2019), https://abcnews.go.com/US/10-americans-struggle-cover-400-emergency-expense-federal/story?id=63253846. As a consequence, abusive litigants can frequently intimidate critics into silence by threatening or filing baseless SLAPP suits alleging claims like defamation, business disparagement, and any number of other speech-based torts. Understandably, when faced with the prospect of having to spend tens—if not hundreds—of thousands of dollars in legal fees to defend one’s right to speak freely, for many people, agreeing to self-censor in exchange for avoiding or securing the dismissal of a SLAPP suit is an attractive proposition.
Although most people will not themselves be sued for their protected speech, SLAPP suits threaten far more than just the rights of individual defendants. As the Supreme Court has made clear, “the Constitution protects the right to receive information and ideas,”3Stanley v. Georgia, 394 U.S. 557, 564 (1969) and as such, the protection afforded by the First Amendment “is to the communication, to its source and to its recipients both.”4Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 756 (1976) Consequently, whenever a willing speaker is successfully censored by a SLAPP suit, the listening public’s right to hear what the speaker has to say is lost in equal measure.
The harm wrought by SLAPP suits also is far from theoretical. As evidenced by countless recent examples, SLAPP suits are aimed at popular television content,5Michael Levenson, Linda Fairstein Sues Netflix for Defamation in ‘When They See Us’, N.Y. Times (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/us/linda-fairstein-central-park-five.html; https://
www.nytimes.com/2019/10/17/us/reid-technique-when-they-see-us.html; Derek Hawkins, John Oliver, A Giant Squirrel and a Defamation Lawsuit by a Coal Industry Titan, Wash. Post (June 22, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/06/22/john-oliver-a-giant-squirrel-and-a-defamation-lawsuit-by-a-coal-industry-titan/ Yelp! reviews,6Tom Huddleston Jr., Can You Get Sued over a Negative Yelp Review? Here’s What You Need to Know, CNBC (Oct. 10, 2019), https://www.cnbc.com/2019/10/10/can-you-get-sued-over-a-negative-yelp-review.html; Matthew Torres, Woman faces $25K lawsuit over Yelp Review About Middle Tennessee Doctor, News Channel 5 (Dec. 3, 2019), https://www.newschannel5.com/news/woman-faces-25k-lawsuit-over-yelp-review-about-middle-tennessee-doctor. political advertisements,7C.J. Ciaramella, Trump Campaign Sues TV Station for Running ‘Defamatory’ Coronavirus Attack Ad, Reason (Apr. 13, 2020), https://reason.com/2020/04/13/trump-campaign-sues-tv-station-for-running-defamatory-coronavirus-attack-ad/, political protesters,8Marissa J. Lang, A Police Officer Sued Black Lives Matter Protester or Violence He Didn’t Commit. What’s Next Has Free-Speech Advocates Worried., Wash. Post (Dec. 13, 2019), https://www.washingtonpost.com/
local/a-police-officer-sued-a-black-lives-matter-protester-for-violence-he-didnt-commit-whats-next-has-free-speech-advocates-worried/2019/12/13/f02cd082-1d09-11ea-b4c1-fd0d91b60d9e_story.html; Matthew Parsons, Lawsuit Against Greenpeace Raises Freedom of Speech Concerns, Human Rights Watch (May 31, 2018), https://www.hrw.org/news/2018/05/31/lawsuit-against-greenpeace-raises-freedom-speech-concerns# academic research,9Mike Masnick, SLAPP Alert: Professor Sues Another For Defamation Over Competing Academic Papers, Techdirt (Nov. 8, 2017), https://www.techdirt.com/articles/20171106/23054038558/slapp-alert-professor-sues-another-defamation-over-competing-academic-papers.shtml. See also SLAPPS Targeting Academic Freedom, Pub. Participation Project,https://anti-slapp.org/slapps-targeting-academia (last visited May 13, 2020) government critics10Rebecca Klar, GOP consultant sued by Nunes asks for help paying legal costs, The Hill (June 25, 2019), https://thehill.com/homenews/house/450216-twitter-user-sued-by-nunes-asks-for-help-paying-legal-costs and satirists,11Aaron Blake, The Ridiculousness of Devin Nunes Suing ‘Devin Nunes’ Cow’—and What It Really Signals, Wash. Post (Mar. 19, 2019),https://www.washingtonpost.com/politics/2019/03/19/ridiculousness-devin-nunes-suing-devin-nunes-cow-what-it-really-signals/ the media,12Justin Wise, Trump Escalates Fight Against Press with Libel Lawsuits, The Hill (Mar. 8, 2020), https://thehill.com/homenews/media/486273-trump-escalates-fight-against-press-with-libel-lawsuits. and any number of other targets. As such, SLAPP suits threaten what each of us is able to watch, read, and hear on a daily basis.
II. Circumventing State Anti-SLAPP Statutes
In an effort to address the scourge of SLAPP suits, twenty-nine states have now enacted some version of an anti-SLAPP statute affording varying benefits to defendants who are sued for speech-based tort claims.13Anti-SLAPP Statutes and Commentary, Media Law Resource Ctr., https://www.medialaw.org/topics-page/anti-slapp (last visited May 13, 2020). Depending on the degree of protection they afford, anti-SLAPP statutes can help deter SLAPP suits from being filed in the first place, punish those who file them, ensure that SLAPP suits are resolved expediently, or enable defendants who are targeted by SLAPP suits to recover their attorney’s fees after prevailing. Unfortunately, however, this state-by-state patchwork of anti-SLAPP legislation is woefully insufficient to combat the scourge of SLAPP suits for five principal reasons.
First, too many jurisdictions lack anti-SLAPP legislation. In fully 21 states, including populous states like Ohio, North Carolina, and Michigan, defendants who are subjected to SLAPP suits enjoy no anti-SLAPP protection whatsoever—a defect that enables forum shopping and so-called “libel tourism.”14Mike Masnick, Devin Nunes Libel Tourism Continues to Highlight the Problems of Virginia’s Weak Anti-SLAPP Laws, Techdirt (Jan. 6, 2020), https://www.techdirt.com/articles/20191225/22422343630/devin-nunes-libel-tourism-continues-to-highlight-problems-virginias-weak-anti-slapp-laws.shtml. Self-evidently, though, the public’s right to hear is no less worthy of protection when it comes to speakers who reside in unprotected jurisdictions.
Second, even in states that have enacted anti-SLAPP statutes, “[t]he scope of  anti-SLAPP statutes varies greatly.”15Anti-SLAPP Statutes and Commentary, supra note 14. For instance, some states provide robust protection against SLAPP suits—applying to virtually all constitutionally protected speech and offering a cornucopia of benefits such as a specialized procedure for obtaining early dismissal, an automatic stay of discovery, and mandatory attorney’s fee-shifting. By contrast, other states’ anti-SLAPP statutes provide meager benefits and apply only narrowly, for instance, to speech made to government entities.16David L. Hudson, Jr. Anti-SLAPP Coverage and the First Amendment: Hurdles to Defamation Suits in Political Campaigns, 69 Am. U. L. Rev. 1541, 1545–46 (2020) (forthcoming).
Third, even when a plaintiff files a SLAPP suit against someone who resides in a state with a strong anti-SLAPP statute, the substantive law of the defendant’s residence will not necessarily apply to the case. Instead, the law that governs the plaintiff’s claims will turn on the choice of law rules of the forum in which the suit was filed—an inquiry that can, and often does, result in the substantive law of the plaintiff’s residence or the place of injury applying instead.17See, e.g., Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343, 354–55 (D. Mass. 2017) (rejecting California defendants’ claim that California’s anti-SLAPP statute applied to a plaintiff’s complaint, notwithstanding defendants’ “justified expectations” that their home-state law would apply and the fact that “the alleged tortious conduct occurred in California”); Adelson v. Harris, 973 F. Supp. 2d 467, 477–78 (S.D.N.Y. 2013), aff’d, 876 F.3d 413 (2d Cir. 2017) (“Nevada’s interest in this case is significant and incontrovertible. Adelson is a Nevada citizen, and the Adelson business empire is based in Nevada. Nevada has an interest in protecting its citizens from tortious conduct. The District of Columbia also has an interest in this case—protecting the First Amendment rights of its citizens. While this interest is important, it is not, without more, sufficient to overcome the presumption that the law of Plaintiff’s domicile should apply in this type of case.” (citing Davis v. Costa–Gavras, 580 F. Supp. 1082, 1091 (S.D.N.Y. 1984); Hatfill v. Foster, 401 F. Supp. 2d 320, 324–25 (S.D.N.Y. 2005), reversed on reconsideration,415 F. Supp. 2d 353(S.D.N.Y. 2006))); Schering Corp. v. First DataBank Inc., No. C 07-01142 WHA, 2007 WL 1176627, at *6 (N.D. Cal. Apr. 20, 2007) (“First DataBank, even as a California defendant, could not have had any expectation that it would have had the benefit of the anti-SLAPP procedure when being sued in New Jersey. Moreover, restricting the anti-SLAPP mechanism to courts sitting in California would advance the values of ‘uniformity and predictability of result.’”); Wash. Nat’l Ins. Co. v. Administrators, 2 F.3d 192, 196 (7th Cir. 1993) (holding that “[t]he ‘most’ significant element of defamation is the injury, as the old rule of lex loci delicti always insisted.”). Cf. Glob. Relief Found. v. N.Y. Times Co., No. 01 C 8821, 2002 WL 31045394, at *11 (N.D. Ill. Sept. 11, 2002).
Fourth, even if a robust state anti-SLAPP statute would otherwise protect defendants who are sued for their protected speech, the majority of federal courts have held that state anti-SLAPP statutes cannot apply to federal diversity cases.18See Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (“The first issue before the Court is whether a federal court exercising diversity jurisdiction may apply the D.C. Anti–SLAPP Act’s special motion to dismiss provision. The answer is no. Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court. A federal court must apply those Federal Rules instead of the D.C. Anti–SLAPP Act’s special motion to dismiss provision.”); Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019), as revised (5th Cir. Aug. 29, 2019) (“Because the TCPA’s burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.”); Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 673 (10th Cir. 2018), cert. denied sub nom. AmeriCulture, Inc. v. Los Lobos Renewable Power, LLC, 139 S. Ct. 591 (2018) (“The proper course is to recognize the New Mexico anti-SLAPP statute as a procedural mechanism for vindicating existing rights and nothing more. Accordingly, the decision of the district court denying application of the New Mexico anti-SLAPP statute in this federal diversity action is AFFIRMED. Defendants’ motion to certify a question of state law is DENIED.”); Intercon Sols., Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1042 (N.D. Ill. 2013), aff’d on other grounds, 791 F.3d 729 (7th Cir. 2015) (“[T]he Court finds that Section 525 cannot be applied by a federal court sitting in diversity because it is in direct conflict with Federal Rules of Civil Procedure 12 and 56.”); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1357 (11th Cir. 2018); Lampo Grp., LLC v. Paffrath, No. 3:18-CV-01402, 2019 WL 3305143, at *3 (M.D. Tenn. July 23, 2019) (“[T]his Court finds persuasive the reasoning provided in Abbas and Carbone—that the ‘Federal Rules of Civil Procedure [8,] 12[,] and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court. A federal court must apply those Federal Rules instead of the [California’s] Anti–SLAPP Act’s special motion to [strike] provision.’” (quoting Abbas, 783 F.3d at 1333)). But see Godin v. Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); Caranchini v. Peck, 355 F. Supp. 3d 1052, 1061 (D. Kan. 2018) (“The court therefore finds that the Act, although procedural in nature, applies in federal diversity actions because it ‘exist[s] to influence substantive outcomes, and . . . is so bound up with the state-created right or remedy that it defines the scope of that substantive right or remedy.’” (quoting Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 419-20 (2010) (Stevens, J., concurring))); MyWebGrocer, Inc. v. Adlife Mktg. & Commc’ns Co., Inc., No. 5:16-CV-310, 2018 WL 8415139, at *3 (D. Vt. Jan. 30, 2018) (“The court concludes that Erie concerns about the consistent application of state law strongly favor the application of the state anti-SLAPP measure in federal court in a diversity case.”). See also Tobinick v. Novella, 108 F. Supp. 3d 1299, 1305 (S.D. Fla. 2015) (“The Court recognizes that as of April 24, 2015, there exists a circuit split on whether or not states’ anti-SLAPP acts’ pretrial dismissal provisions apply in federal court notwithstanding Federal Rules of Civil Procedure 12 and 56.”); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 836 (9th Cir. 2018) (Gould, J., concurring), amended, 897 F.3d 1224 (9th Cir. 2018), cert. denied sub nom. Ctr. for Med. Progress v. Planned Parenthood Fed’n of Am., 139 S. Ct. 1446 (2019). Consequently, plaintiffs can often circumvent state anti-SLAPP statutes entirely just by suing in federal court. Thus, even if every state adopted a robust anti-SLAPP statute, the protections afforded by state anti-SLAPP laws would often be useless to defendants due to the ease with which plaintiffs can file suit in a federal forum.
Fifth, even in federal courts that would otherwise apply state anti-SLAPP statutes, plaintiffs have yet another easy means of circumventing them: they can assert federal—rather than state—causes of action. State anti-SLAPP protections afford no protection whatsoever against claims filed in federal court under federal law.19See, e.g.,Jenkins v. Luce, No. 05CV1536W (WMC), 2005 WL 8173347, at *9 (S.D. Cal. Nov. 22, 2005) (“California’s anti-SLAPP statute may not be applied to federal causes of action asserted in federal court. Defendant has provided no tenable rationale for applying a state procedural device to federal causes of action pending in federal court.”); Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“Hallmark only moved to strike the misappropriation of publicity claim. Indeed, it could not have moved to strike the Lanham Act claim because, as the parties agree, the anti-SLAPP statute does not apply to federal law causes of action.”); MyWebGrocer, Inc., 2018 WL 8415139, at *2 (“Anti-SLAPP legislation limiting access to state courts has little application to a copyright case seeking to determine rights derived from federal law in the federal courts.”); Déjà Vu of Nashville, Inc. v. Traffic & Parking Comm’n ex rel.Metro. Gov’t of Nashville & Davidson Cty.,No. 19-5514, 2020 WL 1230810, at *4 (6th Cir. Mar. 13, 2020) (“Nor do Molette and Schipani adequately explain how this state immunity statute authorizing attorney’s fees would even apply to federal causes of action in federal court.” (citing Martinez v. California, 444 U.S. 277, 284 n.8 (1980); Wilson v. Elliott Cty., 198 F. App’x 471, 474 (6th Cir. 2006))). Plaintiffs also have had little difficulty filing SLAPP suits using federal causes of action—for instance, under the Lanham Act,20See, e.g., Tobinick v. Novella, 848 F.3d 935, 952 (11th Cir. 2017); Molson Coors Beverage Co. USA LLC v. Anheuser-Busch Cos., LLC, No. 19-2200, 2020 WL 2097557, at *1 (7th Cir. May 1, 2020) (“Molson Coors responded in the market and in court. In the market it advertised that its beers taste better because of the difference between rice and corn syrup (which, it added, differs from the high-fructose corn syrup used to sweeten soft drinks and other consumer products). In court it contended that Anheuser-Busch violates § 43 of the Lanham Act, 15 U.S.C. § 1125, by implying that a product made from corn syrup also contains corn syrup.”); Taubman Co. v. Webfeats, 319 F.3d 770, 775 (6th Cir. 2003). 42 U.S.C. section 1985,21See, e.g.,Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001); Déjà Vu of Nashville, Inc., 2020 WL 1230810, at *1; Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1331–32 (7th Cir. 1977). See also Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523, 526, n.8 (N.D. Ill. 1990). the Copyright Act,22See, e.g., Joshua Lamel, The Copyright Lawsuit in Tiger King Is an Outrage, Slate (May 7, 2020), https://slate.com/technology/2020/05/tiger-king-joe-exotic-carole-baskin-copyright-fair-use.html (observing that “[c]opyright is the perfect vehicle for SLAPP suits.”); Mike Masnick, Miami Heat Owner Sues Blogger & Google over ‘Unflattering’ Photo, Techdirt (June 25, 2012), https://www.techdirt.com/
articles/20120625/10172319467/miami-heat-owner-sues-blogger-google-over-unflattering-photo.shtml and civil RICO statutes23See, e.g.,Ctr. for Immigration Studies v. Cohen, 410 F. Supp. 3d 183, 186 (D.D.C. 2019); Resolute Forest Prod., Inc. v. Greenpeace Int’l, No. 17-CV-02824-JST (KAW), 2019 WL 2998814, at *1 (N.D. Cal. July 10, 2019). See also Robert Sprague, SLAPPed By RICO: Corporations Punishing Social Activism, 55 Am. Bus. L.J. 763 (2018)—which provide a straightforward means for plaintiffs to sue their critics, however baselessly, regarding protected speech.
III. The Need for a Federal Anti-SLAPP Law
As provided above, abusive plaintiffs can circumvent state anti-SLAPP statutes without difficulty in several ways, particularly by forum shopping, filing SLAPP suits in federal court, and utilizing federal causes of action. Despite recognizing this, however, federal courts have convinced themselves that they are capable of addressing the scourge of SLAPP suits using existing tools. As the Tenth Circuit has warned, for example:
Anyone who believes that a federal district court is ill-equipped to deal swiftly and harshly with [SLAPP suits] absent application of [a state anti-SLAPP statute] is seriously mistaken. Those litigants and lawyers who seek to circumvent application of [a state] anti-SLAPP statute by filing a baseless SLAPP lawsuit in federal district court are in for a rude awakening.24Los Lobos Renewable Power, LLC, 885 F.3d at 673.
Sadly, this admonition is not even close to accurate. Few litigants would ever accuse the federal judiciary of acting “swiftly” to adjudicate their cases,25See, e.g., Benjamin Weiser, Judge’s Decisions Are Conspicuously Late, N.Y. Times (Dec. 6, 2004), https://www.nytimes.com/2004/12/06/nyregion/judges-decisions-are-conspicuously-late.html; Mike Masnick, Gavin McInnes Files Laughably Silly Defamation Lawsuit Against Southern Poverty Law Center, Techdirt (Feb. 5, 2019), https://www.techdirt.com/articles/20190204/23555241529/gavin-mcinnes-files-laughably-silly-defamation-lawsuit-against-southern-poverty-law-center.shtml (at publication, this SLAPP suit was still ongoing, and the defendant’s motion to dismiss had been pending for fourteen months). which routinely take years to resolve and almost invariably involve expensive, intrusive, and time-consuming discovery in the interim.26Unless a stay is sought and granted, the exchange of early discovery is mandated as a matter of course in every civil case filed in federal court. See Fed. R. Civ. P. 26(a)(1). Further, federal district courts are generally loathe to stay discovery even when an early dispositive motion to dismiss is pending, prioritizing their own docket efficiency over the burden that discovery imposes upon defendants who face baseless claims. See, e.g., Jackson v. Denver Water Bd., No. 08-CV-01984-MSK-MEH, 2008 WL 5233787, at *1 (D. Colo. Dec. 15, 2008) (“Generally, it is the policy in this district not to stay discovery pending a ruling on motions to dismiss.”); Lampo Grp. v. Paffrath, 3:18-cv-01402, 2019 WL 3305143 (M.D. Tenn. 2019) (Order, ECF No. 71) (“This Court’s standard practices and procedures disfavor a stay of discovery during the pendency of dispositive or other motions.”); Gookins v. Cty. Materials Corp., No. 1:19-CV-00867-JPH-MJD, 2019 WL 3282088, at *1 (S.D. Ind. July 18, 2019) (“Filing a motion to dismiss does not automatically stay discovery, and the Court is not required to grant a motion to stay discovery pending a ruling on a motion to dismiss.”); Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) (“Had the Federal Rules contemplated that a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect. In fact, such a notion is directly at odds with the need for expeditious resolution of litigation.”); Steil v. Humana Health Care Plans, Inc., No. CIV. A. 99-2541-KHV, 2000 WL 730428, at *1 (D. Kan. May 1, 2000) (“The District of Kansas generally disfavors motions to stay discovery.”). Further, it is not enough that federal courts ultimately dismiss SLAPP suits when they do get around to adjudicating them. Where SLAPP suits are concerned, the process itself is the punishment, and many speakers cannot afford—or are understandably unwilling to bear—the heavy expense associated with that process at all.
Further still, given that federal law does not generally provide any means for prevailing defendants to recover their attorney’s fees,27Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975) (“In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. We are asked to fashion a far-reaching exception to this ‘American Rule’; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged by respondents and approved by the Court of Appeals.”). defendants will still come out behind—and abusive plaintiffs will succeed in punishing protected speech even when they lose—in virtually every case, which is both the point and precisely the reason why the threat of a SLAPP suit is so effective. Nor do plaintiffs who file SLAPP suits face any genuine fear of being sanctioned. Far from experiencing a “rude awakening,” regardless of their frivolity, SLAPP suits consistently avoid sanctions in federal courts even when courts rule that they are facially baseless.28See, e.g.,Arpaio v. Robillard, No. CV 19-3366, 2020 WL 2064067, at *5 (D.D.C. Apr. 29, 2020) (refusing to issue sanctions in twice-dismissed SLAPP suit despite specifically stating that “the Court agrees with the HuffPost defendants that this case is frivolous”); Ctr. for Immigration Studies, 410 F. Supp. 3d 183 (Minute Order Denying Motion for Sanctions, accompanying Memorandum Opinion dismissing case for failure to state a claim, Sept. 13, 2019) (“The Court did not find the complaint to be completely frivolous, although it found plaintiff’s reliance on RICO to be misplaced in what was essentially a defamation case. The defense has not pointed to grounds to believe that the complaint was filed for any improper purpose, such as to harass or delay, or that the factual contentions were devoid of factual support, and therefore, in its discretion, the Court will decline to depart from the general rule that each party bear its own costs and deny the motion for sanctions. SO ORDERED.”); Doe v. McKesson, 272 F. Supp. 3d 841, 851, 854 (M.D. La. 2017) (referring to plaintiff’s theory in a SLAPP suit as “frivolous,” “fantastic or delusional,” and evidence of “either a gross lack of understanding of the concept of capacity or bad faith,” but not issuing sanctions), aff’d in part, rev’d in partand remanded, 922 F.3d 604 (5th Cir. 2019), opinion withdrawn and superseded on reh’g, 935 F.3d 253 (5th Cir. 2019), opinion aff’d in part, rev’d in part and remanded, 945 F.3d 818 (5th Cir. 2019); Déjà Vu of Nashville, Inc., 2020 WL 1230810, at *4 (6th Cir. Mar. 13, 2020) (affirming dismissal of SLAPP suit that failed to allege even the requisite elements of the tort claim involved, but nonetheless declining to award sanctions on the basis that plaintiffs’ appeal “does not meet the legal standards of a frivolous appeal”).
For all of these reasons, Congress must enact a federal anti-SLAPP statute that provides for mandatory fee-shifting to a prevailing defendant and applies regardless of venue to every cause of action, whether state or federal, in which the First Amendment supplies a defense. With mandatory fee-shifting available in every speech-based tort case, private attorneys will be willing to provide representation on a contingent basis when SLAPP suits would otherwise have resulted in self-censorship, default, a pro se or underfunded defense, or the need for pro bono representation. Further, defendants who pay directly for the cost of their defense will be made whole after winning, diminishing any incentive to self-censor just to avoid the expense of litigation. Simply put: By ensuring that every defendant who is subjected to a SLAPP suit can defend against a plaintiff’s claims without fear of ruinous financial consequences, the predictable—and essential—result is that fewer defendants will be sued into silence, and the public’s right to receive information and ideas will finally receive the nationwide protection it deserves.
Daniel A. Horwitz is a First Amendment lawyer in Nashville, Tennessee. The author express his thanks to Adam Steinbaugh and Mike Masnick for their assistance.
Suggested Citation: Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum;(2020).