So Tim Cushing has just taken a peek at Supreme Court nominee Brett Kavanaugh’s 4th Amendment rulings and Karl already looked at his questionable opinion concerning net neutrality (in which he argued (bizarrely) that what blocking content and services on a network is a 1st Amendment “editorial” decision by broadband providers). Of course, that’s just one of his 1st Amendment cases. I wanted to look over some of Kavanaugh’s other free speech related opinions. Ken “Popehat” White has done a pretty good job covering most of them, noting that for the most part, Kavanaugh takes a fairly strong First Amendment approach in the cases that come to him, and seems unlikely to upset the apple cart on First Amendment law in any significant way (if you want to see more of his opinions, this is a good place to start).
As Ken notes, there really isn’t that much to comment on on most of those decisions, and Karl already wrote about the weird net neutrality one, but I did want to focus in on another First Amendment-adjacent case where I think Kavanaugh was incorrect: on the question of whether or not state anti-SLAPP laws apply in federal court. To be clear, by itself, this is really not a First Amendment question on its own, it’s a question about what laws apply where. The case is Abbas v. Foreign Policy Group and Kavanaugh wrote the majority opinion which said that DC’s anti-SLAPP law can not be used in federal court.
Ken is correct that this ruling does not suggest that Kavanaugh is not interested in protecting First Amendment rights. But, that still does not mean that Kavanaugh’s ruling is correct. Ken notes that some other judges have agreed with Kavanaugh, but it’s also worth pointing out that even more judges have disagreed with Kavanaugh. Indeed, most other circuits that have taken up this issue have ruled in the other way, and said that state anti-SLAPP laws can be used in federal court. The debate over this does not come down to a First Amendment issue, but rather the issue of whether or not an anti-SLAPP law is mainly “substantive” or “procedural.” Substantive state laws apply in federal court, while procedural ones do not. Anti-SLAPP laws have elements of both procedural and substantive laws, which is why there are arguments over this. But for a variety of reasons, it seems clear to us (and to many other judges) that the substantive aspects of most anti-SLAPP laws mean they’re perfectly valid in federal court.
If you read Kavanaugh’s ruling, his explanation for his reasoning is… minimal. He calls the arguments in favor of the other side “creative,” and some of them were. But on the meat of the question — is DC anti-SLAPP law more procedural or substantive — he basically just says he disagrees with courts that found otherwise, and agrees with the judges that agree with him:
…the defendants cite some other courts that have applied State anti-SLAPP acts’ pretrial dismissal provisions notwithstanding Federal Rules 12 and 56. See, e.g., Godin v. Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 168-69 (5th Cir. 2009); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); see generally Charles Alan Wright et al., 19 Federal Practice & Procedure § 4509 (2d ed. 2014). That is true, but we agree with Judge Kozinski and Judge Watford that those decisions are ultimately not persuasive.
Yes, but why? Kavanaugh does not really explain. And that’s too bad, because the reasoning in those other courts is something that I do find pretty damn persuasive. Anti-SLAPP laws do have a procedural component, but they are primarily substantive in protecting the First Amendment rights of speakers. In particular, the Godin v. Schenks ruling gets into the weedy details of why the anti-SLAPP statute in that case does not bump up against or contradict federal procedures, while the Henry v. Lake Charles American Press ruling goes even further in highlighting the importance of protecting free expression:
Anti-SLAPP statutes such as Article 971 aim to curb the chilling effect of meritless tort suits on the exercise of First Amendment rights, and as the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Indeed, the Supreme Court has time and again emphasized the importance of First Amendment rights. See, e.g., Curtis *181 Publ’g Co. v. Butts, 388 U.S. 130, 165, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in the result) (noting “the fundamental interests which the First Amendment was designed to protect”)…. Article 971 thus provides for the avoidance of a trial that would imperil a substantial public interest. Indeed, as Article 971 embodies a legislative determination that parties should be immune from certain abusive tort claims that have the purpose or effect of imperiling First Amendment rights, “there is little room for the judiciary to gainsay its `importance.'”
Again, multiple courts have ruled this way as well.
At best, Kavanaugh argues that anti-SLAPP laws basically cover the same ground as federal procedure rules concerning motions to dismiss and motions for summary judgment. As he summarizes:
Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.
But in the Godin case, the 1st Circuit does (what I believe is) a much more thorough analysis of the (admittedly different, but still similar) anti-SLAPP law in that case, and its relationship to Federal Rules 12 and 56, basically noting that the anti-SLAPP law covers different ground, and doesn’t displace federal procedure:
Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. Section 556 on its face is not addressed to either of these procedures, which are general federal procedures governing all categories of cases. Section 556 is only addressed to special procedures for state claims based on a defendant’s petitioning activity. In contrast to the state statute in Shady Grove, Section 556 does not seek to displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function. Cf. Morel, 565 F.3d at 24. In addition, Rules 12(b)(6) and 56 do not purport to apply only to suits challenging the defendants’ exercise of their constitutional petitioning rights. Maine itself has general procedural rules which are the equivalents of Fed.R.Civ.P. 12(b)(6) and 56. See Me. R. Civ. P. 12; Me. R. Civ. P. 56. That fact further supports the view that Maine has not created a substitute to the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.
Crucially, as the Godin ruling notes, anti-SLAPP laws change the burden of proof, and that is “substantive,” meaning should be allowed in federal court:
Neither Fed.R.Civ.P. 12(b)(6) nor Fed. R.Civ.P. 56 determines which party bears the burden of proof on a state-law created cause of action. See, e.g., Coll v. PB Diagnostic Syst., Inc., 50 F.3d 1115, 1121 (1st Cir.1995). And it is long settled that the allocation of burden of proof is substantive in nature and controlled by state law. Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Am. Title Ins. Co. v. E.W. Fin. Corp., 959 F.2d 345, 348 (1st Cir.1992).
Further, Section 556 provides substantive legal defenses to defendants and alters what plaintiffs must prove to prevail. It is not the province of either Rule 12 or Rule 56 to supply substantive defenses or the elements of plaintiffs’ proof to causes of action, either state or federal.
Because Section 556 is “so intertwined with a state right or remedy that it functions to define the scope of the state-created right,” it cannot be displaced by Rule 12(b)(6) or Rule 56
Even in the recent 10th Circuit ruling that says that New Mexico’s anti-SLAPP law shouldn’t apply in federal court (which Cathy Gellis argues convincingly was incorrectly decided), that case was very specific to the language of New Mexico’s fairly weak anti-SLAPP law — which didn’t shift the burden of proof (taking away one of — though not all — of the key arguments that the crux of the anti-SLAPP is substantive rather than procedural).
Admittedly, this is deep deep into the weeds on issues around federal procedure, but it is still disappointing that Kavanaugh went the other direction on the case and seems to wave off the fairly persuasive arguments that other judges have made by suggesting that somehow anti-SLAPP laws replace federal procedure. They do not.
Of course, the best away around even having this question be an open question is to have a federal anti-SLAPP law, but tragically Congress has so far failed to even seriously explore that whenever such bills have been introduced (and President Trump has certainly shown absolutely no interest in signing such a bill should it pass). As Ken notes in his piece, Kavanaugh does seem generally appreciative of anti-SLAPP laws in general, but feels that he can’t allow DC’s to be used in federal court for procedural reasons. That doesn’t suggest that he is bad on free speech — indeed, in that very same ruling he upholds the dismissal (with prejudice) of the defamation case at issue, just using the 12(b)(6) motion to dismiss process, rather than the DC anti-SLAPP rule.
And thus, I disagree with Kavanaugh’s ruling on using DC’s anti-SLAPP in federal court (as I disagree with his ruling on the 1st Amendment’s applicability to net neutrality), but neither of those appear to diminish his general record as being strong on First Amendment issues.
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