by Conner Kozisek*

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a meritless lawsuit designed to chill constitutionally protected speech, thereby posing a dangerous threat to First Amendment rights. To challenge the chilling effects of SLAPP suits, more than 30 states and the District of Columbia have adopted anti-SLAPP legislation, many of which create a special motion to strike a claim based on a defendant’s speech in furtherance of their First Amendment rights. Because there is no federal anti-SLAPP legislation, the federal judiciary is divided on whether anti-SLAPP laws should apply in federal courts exercising diversity jurisdiction, especially in the wake of the Court’s fractured opinion in Shady Grove Orthopedic Associates v. Allstate Insurance Co. This Contribution argues that federal courts sitting in diversity should apply the approach set forth in Justice Stevens’s Shady Grove concurrence to recognize the potential substantive rights created by or protected through anti-SLAPP legislation.

A Strategic Lawsuit Against Public Participation (“SLAPP”) poses a dangerous threat to First Amendment rights. SLAPPs are “meritless lawsuits designed to chill constitutionally protected speech on matters of public concern,”1 often brought against news media, journalists, and others reporting on and criticizing the conduct of rich and powerful individuals. “By definition, SLAPP suits do not have any true legal claims against the[se] critics.”2 Rather, SLAPP plaintiffs “bring SLAPP suits because they can either temporarily prevent their critics from making public statements against them or more commonly to make critics spend all of their time and resources defending the SLAPP suits.”3 Thus, plaintiffs do not bring SLAPP claims to win or recover damages, but rather to weaponize the legal process against SLAPP defendants, to financially burden them, and to prevent them from engaging in speech the SLAPP plaintiff dislikes.4

To challenge the chilling effect that SLAPP suits create, more than 30 states and the District of Columbia have adopted anti-SLAPP legislation to “provide critical protections for SLAPP defendants by establishing mechanisms for the prompt dismissal of meritless claims and enabling defendants to avoid unnecessary legal expense.”5 Many anti-SLAPP statutes create a special motion to strike which applies to cases arising from a defendant’s speech in furtherance of their right to petition or to exercise their free speech under the United States Constitution or state constitution in connection with an issue of public concern.6 Unless a court determines the plaintiff has a chance to prevail on their claim, the claim will be dismissed.7 Prevailing movants under an anti-SLAPP statute are often entitled to recover attorneys’ fees and other costs associated with bringing the special motion to strike.8

However, the important protections of anti-SLAPP legislation risk being disallowed in Article III courts altogether. There is no federal anti-SLAPP statute, and federal courts are divided on the extent to which state anti-SLAPP statutes should apply in federal courts sitting in diversity.9 In particular, the federal judiciary is split on whether state anti-SLAPP statutes implicate substantive rights that conflict with the Federal Rules of Civil Procedure when applying the Erie doctrine.

Under the Erie doctrine, “federal courts sitting in diversity apply state substantive law and federal procedural law.”10 Questions related to the Erie doctrine and its progeny were most recently addressed by the Supreme Court in Shady Grove Orthopedic Associates v. Allstate Insurance, Co.11 In Shady Grove, the Court articulated the rule that when both a Federal Rule of Civil Procedure and a state law address a question before the court, the court “must first determine whether [the Federal Rule] answers the question in dispute.”12 If the Federal Rule answers the question, then it governs, “unless it exceeds [its] statutory authorization or Congress’s rulemaking power.”13

Although a majority of the Court agreed on this two-step framework, the Shady Grove Court did not reach a majority agreement on the methods for addressing whether a rule “exceeds statutory authorization or Congress’s rulemaking power” under the Rules Enabling Act.14 Justice Scalia’s plurality opinion concluded that a Federal Rule does not violate the Rules Enabling Act as long as the Federal Rule regulates procedure, noting that “it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule.”15 In a concurring opinion, Justice Stevens concluded that whether a Federal Rule is valid depends not only on the Federal Rule but also on the nature of the state rule it would displace, framing the analysis as “whether the scope of the federal rule is ‘sufficiently broad’ to ‘control the issue’ before the court . . . .”16

Courts should use Justice Stevens’s Shady Grove concurrence as a guide for assessing whether state anti-SLAPP statutes should apply in federal diversity actions. These anti-SLAPP statutes often create, protect, or vindicate important substantive rights for SLAPP defendants to avoid costly litigation for meritless claims and should be applied in a federal court sitting in diversity. Although the Federal Rules provide avenues for a claim to be dismissed before trial,17 state anti-SLAPP statutes often go further than the Federal Rules by creating or protecting substantive rights and rules to provide additional security for the moving party.18 The Federal Rules often are not “sufficiently broad” to “control the issue” addressed by state anti-SLAPP statutes; thus, Justice Stevens’s approach ensures the substantive rights and remedies created or protected by anti-SLAPP statutes are not completely discounted.

The First,19 Second,20 and Ninth21 Circuits have each allowed SLAPP defendants to invoke at least part of the protections created by state anti-SLAPP laws in the federal courts. Conversely, the Fifth,22 Tenth,23 Eleventh,24 and D.C. Circuits25 have found that anti-SLAPP laws conflict with the Federal Rules and cannot be applied in federal courts. Many of these latter circuits have relied on the approach set forth by Justice Scalia’s Shady Grove plurality.26

The “critical question” under Justice Stevens’s framework is “whether the state law actually is part of a State’s framework for substantive rights or remedies.”27 Under this approach, Federal Rules 12(b)(6) and 56 often are not “sufficiently broad” to “control the issue” addressed by state anti-SLAPP statutes. Federal Rules 12(b)(6) and 56 “are general federal procedures governing all categories of actions,” while many state anti-SLAPP statutes are “addressed to special procedures for state claims based on a defendant’s [constitutionally-protected] activity.”28 When assessing the applicability of Maine’s anti-SLAPP statute in federal diversity actions, the First Circuit noted that Maine already had procedural rules equivalent to Federal Rules 12(b)(6) and 56 when it adopted its anti-SLAPP statute.29 This fact supports that Maine and other states that have adopted anti-SLAPP statutes with preexisting procedural rules mirroring Federal Rules 12(b)(6) and 56 have “created . . . supplemental and substantive rule[s] to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning [or other protected First Amendment] activities.”30

Additionally, “there is no indication that Rules . . . 12 and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims.”31 The bases for dismissing a claim under Federal Rule 12(b)(6) or moving for summary judgment under Federal Rule 56 are also different from many anti-SLAPP statutes. “Rule 12(b)(6) serves to provide a mechanism to test the sufficiency of a complaint.”32 Many anti-SLAPP statutes, by contrast, create a mechanism for SLAPP defendants to move to dismiss “on an entirely different basis:” that the relevant claims arise from a defendant’s constitutionally protected First Amendment activity and that the plaintiff cannot meet the special rules created by anti-SLAPP statutes, such as showing a likelihood of prevailing on the claim, to protect this activity from lawsuits.33 Similarly, Federal Rule 56 “creates a process for parties to secure judgment before trial on the basis that there are no disputed material issues of fact, and as a matter of law, one party is entitled to judgment.”34 Many anti-SLAPP statutes serve a different function: to “protect[] those specific defendants that have been targeted with litigation on the basis of their protected speech.”35 For anti-SLAPP statutes creating mandatory fee-shifting frameworks, these changes do not “squarely conflict with a valid federal rule.”36 In a pre-Shady Grove opinion, the Ninth Circuit also found that California anti-SLAPP provisions—creating a special motion to strike and determining the availability of attorneys’ fees and costs—and “Rules 8,37 12, and 56 ‘can exist side by side . . . each controlling its own intended sphere of coverage without conflict.’”38

Many anti-SLAPP statutes are “so intertwined with a state right or remedy that [they] function[] to define the scope of the state-created right[s]” and cannot be displaced by Federal Rules 12 or 56.39 Displacing the anti-SLAPP statute with Federal Rules 12 and 56 could further raise “a serious question . . . under the Rules Enabling Act.”40 Anti-SLAPP statutes have both procedural and substantive aspects, with substantive provisions including shifting the burden to a plaintiff to defeat a special motion to strike,  determining the scope of a plaintiff’s burden, altering the type of actionable harm, creating substantive legal defenses for defendants, and altering what plaintiffs must prove to prevail.41

Further, failing to apply state anti-SLAPP statutes in federal diversity actions would disserve the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.”42 When “application of federal judge-made law would disserve these two policies,” state law should apply.43 Not applying state anti-SLAPP statutes would strongly incentivize forum shopping because “bring[ing] state-law claims in federal as opposed to state court would allow a plaintiff to avoid [an anti-SLAPP statute’s] burden-shifting framework . . . and circumvent any liability for a defendant’s attorney’s fees or costs.”44 Failing to apply many state anti-SLAPP statutes in federal diversity actions would also lead to the inequitable administration of laws because the same defense allowed in state court would be barred in federal court.45 When assessing a Nevada anti-SLAPP statute, the Second Circuit further concluded that anti-SLAPP provisions creating immunity from civil liability and mandatory fee shifting were “substantive within the meaning of Erie, since it is consequential enough that enforcement in federal proceedings will serve to discourage forum shopping and avoid inequity . . . .”46

Of course, an added challenge to the goal of uniformly applying state anti-SLAPP statutes in federal courts is that “there are significant state-by-state variations within the circuit, despite facial similarities and identical procedural purposes of each state’s anti-SLAPP statute.”47 However, precedent established by the First Circuit, directly applying Justice Stevens’s Shady Grove approach, and by the Second and Ninth Circuits, implicitly using the approach for which Justice Stevens advocated, provide guidance to ensure substantive provisions of anti-SLAPP statutes are not ignored when assessing whether the anti-SLAPP provisions should apply in federal diversity actions. Anti-SLAPP statutes are an important protection for defendants facing meritless lawsuits in connection to constitutionally-protected activities, and Justice Stevens’s Shady Grove approach ensures that their provisions are not universally barred from federal diversity actions.

* Conner Kozisek is a J.D. Candidate (2023) at New York University School of Law. This Contribution is a commentary on the problem at the 2022 William B. Spong Moot Court Tournament, hosted by William & Mary Law School. The question presented was whether a state anti-SLAPP statute providing a special motion to strike a claim and seek attorneys’ fees conflicts with the Federal Rules of Civil Procedure. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. Shannon Jankowski & Charles Hogle, SLAPP-ing Back: Recent Challenges to the Application of Anti-SLAPP Laws, Am. Bar Ass’n (Mar. 16, 2022), https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/2022-winter/slapping-back-recent-legal-challenges-the-application-state-antislapp-laws.

2. SLAPP Suit, Legal Info. Inst. (updated May 2022), https://www.law.cornell.edu/wex/slapp_suit (emphasis added).

3. Id.

4. Id.

5. Jankowski & Hogle, supra note 1.

6. See, e.g., Cal. Civ. Proc. Code § 425.16 (stating that defendants challenging SLAPP suits must show they are being sued for “any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue”); La. Code Civ. Proc. Ann. art. 971.A.(1) (“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.”).

7. See Cal. Civ. Proc. Code § 425.16, supra note 6; La. Code Civ. Proc. Ann. art. 971.A.(1), supra note 6.

8. See, e.g., Cal. Civ. Proc. Code § 425.16(c)(1) (allowing a defendant to file a motion to strike the complaint under the anti-SLAPP statute); La. Code Civ. Proc. Ann. art. 971.B. (“[A] prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.”).

9. See Jankowski & Hogle, supra note 1 (discussing different circuit court interpretations on the applicability of state anti-SLAPP laws to federal courts exercising diversity jurisdiction).

10. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996); see also Erie R.R. v. Tompkins, 304 U.S. 64, 91 (1938).

11. 559 U.S. 393 (2010).

12. Id. at 398 (citing Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4–5 (1987)); see also Woods, 480 U.S. at 4–5 (“The initial step is to determine whether, when fairly construed, the scope of [a Federal Rule] is ‘sufficiently broad’ to cause a ‘direct collision’ with the state law or, implicitly, to ‘control the issue’ before the court, thereby leaving no room for the operation of that law.”).

13. Shady Grove, 559 U.S. at 398.

14. Id.

15. Id. at 410 (plurality opinion) (emphasis added).

16. Id. at 421 (Stevens, J., concurring) (citing Woods, 480 U.S. at 4–5; Walker v. Armco Steel Corp., 446 U.S. 740, 749–50, & n. 9 (1980)).

17. For example, Federal Rule of Civil Procedure 12(b)(6) allows for a motion to dismiss a claim on the pleadings, and Rule 56 provides procedures to move for summary judgment.

18. See Godin v. Schencks, 629 F.3d 79, 88 (1st Cir. 2010) (“[W]e conclude that Fed. R. Civ. P. 12(b)(6), which governs motions to dismiss on the pleadings, and Fed. R. Civ. P. 56, which governs motions for summary judgment, are not so broad as to cover the issues within the scope of [Maine’s anti-SLAPP statute].”).

19. See, e.g., id. at 81 (holding Maine’s anti-SLAPP statute applies in federal diversity actions).

20. See, e.g., Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014) (noting that applying certain Nevada anti-SLAPP provisions creating immunity from civil liability and mandatory fee shifting in federal court is “unproblematic”).

21. See, e.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (applying certain California anti-SLAPP provisions in federal court); see also Planned Parenthood Federation of America, Inc. v. Ctr. for Medical Progress, 890 F.3d 828, 834 (9th Cir. 2018) (holding that California’s anti-SLAPP motion to strike provision uses Federal Rule 12(b)(6)’s standard to consider whether a claim is properly stated and Federal Rule 56’s standard to consider the factual sufficiency of a claim).

22. See, e.g., Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019), as revised (Aug. 29, 2019) (holding Texas’s anti-SLAPP statute’s “burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules” and “cannot apply in federal court”).

23. See, e.g., Los Lobos Renewable Power, LLC v. Americulture, LLC, 885 F.3d 659, 662 (10th Cir. 2018) (holding New Mexico’s anti-SLAPP statute does not apply to federal diversity actions).

24. See, e.g., Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350, 1356 (11th Cir. 2018) (holding Georgia’s anti-SLAPP statute’s special motion to strike provision was a procedural rule that conflicted with the Federal Rules governing whether a complaint stated a claim for relief supported by sufficient evidence to avoid pretrial dismissal, and thus the anti-SLAPP statute’s motion-to-strike provision did not apply in federal diversity actions).

25. See, e.g., Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (holding D.C.’s anti-SLAPP statute’s special motion to strike provision did not apply in federal diversity actions).

26. See, e.g., Abbas, 783 F.3d at 473–74; Klocke, 936 F.3d at 247–49.

27. Godin, 629 F.3d at 87 (quoting Shady Grove, 559 U.S. at 419 (Stevens, J., concurring)).

28. Godin, 629 F.3d at 88.

29. Id. (“Maine itself has general procedural rules which are the equivalents of Fed. R. Civ. P. 12(b)(6) and 56.”)

30. Id.

31. Newsham, 190 F.3d at 972.

32. Godin, 629 F.3d at 89 (citing Ashcroft v. Iqbal, 559 U.S. 662 (2009)).

33. Godin, 629 F.3d at 89.

34. Id.

35. Id.

36. Adelson, 774 F.3d at 809 (citing Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 153 (2d Cir. 2013)).

37. Although this Contribution focuses specifically on potential conflicts between Federal Rules of Civil Procedure 12 and 56, many anti-SLAPP statutes can also implicate Rule 8’s pleading standards.

38. Newsham, 190 F.3d at 972 (quoting Walker & Armco Steel, 446 U.S. 740, 752 (1980)).

39. Godin, 629 F.3d at 89 (quoting Shady Grove, 559 U.S. at 423 (Stevens, J., concurring)).

40. Godin, 629 F.3d at 90.

41. Id. at 89.

42. Hanna v. Plumer, 380 U.S. 460, 468 (1965).

43. Stewart Org. v. Ricoh Corp., 487 U.S. 22, 27 n.6 (1988).

44. Godin, 629 F.3d at 92.

45. Id. (citing Com. Union Ins. Co. v. Walbrook Ins. Co., 41 F.3d 764, 773 (1st Cir. 1994)).

46. Adelman, 774 F.3d at 809.

47. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 275–76 (9th Cir. 2013) (Paez, J., concurring).