Kozinski Concurrence Questions Anti-SLAPP Application

We wrote recently about Sherrod v. Breitbart and O’Connor, the case argued last month in the D.C. Circuit that asks the Court to decide, among other questions, whether the District of Columbia’s anti-SLAPP statute should be applied in federal court.

The federal courts of appeals that have analyzed this question have all agreed that state anti-SLAPP statutes should be applied—at least to some degree—in federal court.  Those cases point to the Ninth Circuit’s 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Court held that California’s anti-SLAPP law was substantive, not procedural, and therefore should be applied by a federal court.

The Ninth Circuit recently issued an opinion in Makaeff v. Trump University that faithfully followed the Court’s precedent in Newsham, applying California’s anti-SLAPP statute to strike a counterclaim claim brought in federal court by Trump University against a woman who had filed a class-action claim against the program founded by Donald Trump to offer real estate investment seminars and training programs.

The bulk of the Court’s opinion focused on whether Trump University was a “public figure,” as required by California’s anti-SLAPP law.  The Court reversed the trial court, holding that it was a “limited public figure.”

Perhaps more interesting, however, were two concurrences written by Judge Kozinski and Judge Paez arguing that Newsham was wrongly decided and that state anti-SLAPP statutes should not apply in federal court.  Both concurrences argue that anti-SLAPP statutes are, in fact, largely procedural, and therefore should not be applied in federal court to supplant federal procedural rules.  Judge Kozinski, known for his sharp writing, called Newsham “a big mistake” that had been “foolishly followed” by the First Circuit and Fifth Circuit.  Judge Kozinski and Judge Paez clearly want the Ninth Circuit to re-examine Newsham en banc.

Judge Kozinski is an influential jurist across the country, and one cannot help but wonder whether his concurrence at this point was also intended to send a message to the D.C. Circuit as it considers Sherrod.  Of course, if the D.C. Circuit were to hold that D.C.’s law does not apply in federal court, there would be a circuit split on that question that might draw the attention of the Supreme Court.

Timing is Everything -- Breitbart Case Highlights Deadline Issue

Last week, we made our first foray into Sherrod v. Breitbart and O’Connor, which was argued in the D.C. Circuit several weeks ago and which will, hopefully, address the question whether the District of Columbia’s new anti-SLAPP statute should be applied by a federal court sitting in diversity.

In that post, we noted that the case also presented an interesting timeliness question.  In denying the defendants’ motion to dismiss brought pursuant to the D.C. anti-SLAPP statute, the district court held that the motion was not timely filed.  It is important to understand the unique timeline of this case to understand the court’s ruling.

The complaint was filed on February 11, 2011.  D.C.’s anti-SLAPP statute, which had been passed three months earlier, did not go into effect until March 31, 2011, after a mandatory review period by Congress.

Under typical circumstances, the rules require the defendants to either answer or move to dismiss the complaint within 21 days of being served.  Of course, most defendants seek, and are granted, additional time to respond to the complaint.  In this case, the defendants sought two extensions of their deadline to respond.  Both were granted by the court, with the consent of the plaintiff, pushing the defendants’ deadline to respond until April 18, 2011.

Importantly, the anti-SLAPP statute requires a defendant moving under the statute to file their motion within 45 days of service of the complaint.  In this case, 45 days fell on March 29, 2011, two days before the anti-SLAPP statute was in effect.  Thus, when the defendants did file their motion to dismiss on April 18, 2011, it was several weeks past the statutory deadline.  In denying the anti-SLAPP motion, the district court held that this was untimely, though the court did not address the fact that it had entered two orders granting the defendants extensions of their deadline to “answer, move or otherwise plead in response to Plaintiff’s Complaint.”

In their opening brief to the D.C. Circuit, the defendants argue that by granting these extensions, the court was, in effect, extending the deadline set out in the anti-SLAPP statute in addition to the deadline to respond under the Rules of Civil Procedure.  In any event, the defendants argue, the legislative history of the D.C. statute and case law from other courts indicate that litigants with pending cases can move pursuant to anti-SLAPP statutes that become effective during the course of the litigation.

In her responsive brief, the plaintiff notes that in seeking the extensions, the defendants did not notify either the plaintiff or the Court that it was seeking to extend the anti-SLAPP deadline, not just the deadline under the Rules of Civil Procedure.  Thus, the plaintiff asserts, the orders granting the extensions were not intended to extend the anti-SLAPP deadline.  This seems to be the view of the district court, as well.

No matter how the D.C. Circuit comes out on this question, this very unique case does raise an interesting practice point. It would seem that, if you are a litigant planning to take advantage of the protections of an anti-SLAPP statute, you would be well-advised to either respond within the deadlines set out in the statute or, when moving for an extension of time, specifically reference the anti-SLAPP statute to opposing counsel and the court.

D.C. Circuit Considers Anti-SLAPP Case

Until now, we have not yet waded into the legal and political morass that is Shirley Sherrod v. Andrew Breitbart and Larry O’Connor.  In case you have not picked up a newspaper in the past three years, this is a complaint brought by a former official with the U.S. Department of Agriculture against Andrew Breitbart and one of his employees.  The Washington Post described the case as follows:
Sherrod was ousted from her job as an Agriculture Department rural-development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry O’Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. . . .
The video on Breitbart’s Web site turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but rather an attempt at telling a story of racial reconciliation. Sherrod received public apologies from the administration — including one from President Obama — and an offer to return to her job, which she declined.
Sherrod brought suit in the District of Columbia.  The defendants removed the case to federal court, and then filed a motion to dismiss pursuant to D.C.’s relatively new anti-SLAPP act, which had been passed just a year before and had gone into effect at the end of March 2011.  We first wrote about anti-SLAPP statutes in 2009.
In February 2012, the district court denied the motion to dismiss on a number of grounds, including: (1) the complaint had been filed before the effective date of D.C.’s anti-SLAPP law and could not be applied retroactively; (2) even if it could be applied retroactively, the law would then be considered procedural and therefore could not be applied by a federal court sitting in diversity; and (3) even if it could be applied in federal court, by seeking several extensions of their deadline to respond to the complaint, the defendants had missed the statutory deadline in which to file a motion under D.C.’s law (45 days).
The defendants appealed that decision to the United States Court of Appeals for the District of Columbia Circuit, arguing, among other things, that denial of an anti-SLAPP motion to dismiss is immediately appealable.  Oral argument in that appeal took place on March 15, 2013, and a decision is likely to be issued sometime this summer.
If the D.C. Circuit agrees that it has jurisdiction to hear this interlocutory appeal—meaning an appeal that comes before the final resolution of the case at the trial court level—and according to reports of oral argument that is no sure thing, the court will answer several critical questions of first impression about D.C.’s anti-SLAPP law.
Of primary importance to media defendants is whether a state (or District of Columbia) anti-SLAPP statute can be applied in federal court.  The general rule is that statutes or rules that are procedural (i.e., they govern how an action proceeds through the court system) are not applied by federal courts, but statutes or rules that are substantive (i.e., they govern the merits of the cause of action) are to be applied by federal courts.
This question is crucial, because if plaintiffs could avoid the effect of an anti-SLAPP statute by bringing their case in federal court (by either adding a federal cause of action or creating diversity among defendants), many might choose to do so.
A coalition of media organizations filed an amicus curiae brief in the D.C. Circuit urging the court to align itself with the First, Fifth, and Ninth Circuits, which have all held that anti-SLAPP statutes are substantive, and therefore should be applied by a federal court sitting in diversity.  Indeed, the amici asserted that every Circuit Court to examine the question has agreed that such statutes are substantive.
In the coming days, we will have another post about one of the other important questions raised by the Sherrod case—whether the defendants’ motion to dismiss was untimely.

Of course, we will keep you posted when the court issues its decision. 

A Brief Overview of Anti-SLAPP Statutes

As we discussed in this earlier post, anti-SLAPP statutes are laws designed to prevent plaintiffs from using the threat of costly litigation to chill the free speech rights of people seeking to participate in the public debate over important issues.

SLAPP suits -- Strategic Litigation Against Public Participation -- are typically claims for defamation, intentional infliction of emotional distress, invasion of privacy, or tortious interference with contract filed against a party who has criticized or spoken out against the plaintiff in some public context.  The paradigm case is a real estate developer filing a defamation or tortious interference suit against a citizen who has spoken out publicly against a proposed development project.  By filing suit, no matter how weak its claim might actually be, a plaintiff forces the citizen to spend money responding to the claim and, in the process, to think twice about speaking out publicly again.

In response, twenty-six states and one territory have passed anti-SLAPP statutes that offer some procedural protection to defendants in these actions.  In another two states -- Colorado and West Virginia -- courts have granted defendants a defense to lawsuits targeting their exercise of First Amendment rights concerning issues of public importance.

The California statute was the first of its kind and is generally considered the broadest (i.e. most protective of speech rights).  Under the law, any action "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" will be subject to a special motion to strike by the defendant.  This applies to any act by defendant in "furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue."   That includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Click here for a compilation of cases outlining the types of speech covered by the California law.

If the defendant can make a prima facie case that the suit arises from speech or action covered by the statute, the plaintiff then bears the burden of showing a probability of prevailing on the underlying claim.  See Manufactured Home Cmty., Inc. v. County of San Diego, 544 F.3d 959, 963 (9th Cir. 2008).  Thus, where the underlying claim is for defamation, the plaintiff would have to demonstrate early in the proceedings -- before discovery -- the probability that it could satisfy each element of the claim, including falsity and the appropriate standard of fault.  This is undoubtedly a heavy burden for any plaintiff, even one with a meritorious claim.

Equally important for both parties, the California statute provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."  At the same time, "[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion."

It should be noted that in California (as well as in Georgia, Louisiana, Maine, Massachusetts, Minnesota, Oregon, and Rhode Island) discovery in the underlying case is stayed pending resolution of the anti-SLAPP motion to strike unless there is "good cause."  Other states -- Arkansas, Hawaii, Maryland, Missouri, and Pennsylvania -- have an unqualified discovery stay.

States with less far-reaching anti-SLAPP laws than California's limit the scope of the statute to speech concerning public bodies.  For example, the Minnesota statute applies to any "public participation," which the law defines as "speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action."

While these narrower statutes may be adequate to protect individuals speaking out about government actions, they offer less protection for media defendants.  A court in Massachusetts, for example, held that a newspaper campaign to discourage the construction of a mosque did not fall within the scope of the state's anti-SLAPP statute, which covers the exercise of the "right of petition under the constitution of the United States or of the commonwealth."   The court there allowed the plaintiff's defamation claim to go forward.  Islamic Soc'y v. Boston Herald, Inc. (Mass. Super. Ct. July 20, 2006).

Finally, eight states (California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah) allow so-called "SLAPPback suits," which provide that defendants who have been hit with a SLAPP suit can file a counterclaim against the plaintiff to recover compensatory and punitive damages for abuse of the legal process.  While these suits do not help the defendant avoid the time and expense of litigation, they can act as a deterrent to those considering filing what might be a SLAPP suit.

If you are in a state with an anti-SLAPP law, and you or your news organization gets hit with what you believe is a SLAPP suit, it is important to immediately seek legal counsel familiar with the contours of the statute as it may mandate specific deadlines for filing a special motion to strike.

California Supreme Court Narrows Anti-SLAPP Exemption

The California Supreme Court in mid-December ruled that a statutory exception to the state's landmark anti-SLAPP statute should be narrowly construed, reversing a lower court ruling to the contrary.

California's anti-SLAPP (Strategic Litigation Against Public Participation) statute, which was the first of its kind when it was passed in 1992, allows defendants to make a special motion to strike any claim against them arising out of their "right of petition or free speech" unless the plaintiff can show a probability of success on the claim.  In essence, the statute prevents plaintiffs from using litigation to chill the speech of those who seek to participate in debate on issues of public importance.  By giving defendants an avenue to throw out such a suit early in the process -- before motions and discovery consume substantial time and money -- the statute keeps plaintiffs from using the threat of litigation to quiet debate.  California's statute also gives prevailing defendants the opportunity to recover their attorneys' fees.

At issue in the recent case taken upon by California's Supreme Court was Section 425.17 of the California Code of Civil Procedure, which provides an exception to the state's anti-SLAPP law for "any action brought solely in the public interest or on behalf of the general public." 

The underlying dispute arose out of the Sierra Club's 2004 elections for five board of directors positions.  In the weeks just prior to the election, the then-current board sent out notices to club members warning them that if they did not take part in the elections, a small minority faction influenced by "outside groups" could win the spots and eventually control the board.  One of the candidates opposing the current board filed suit, seeking injunctive relief including removal of the newly elected board members.  The Sierra Club sought to have parts of the suit dismissed under the anti-SLAPP statute, which the trial court granted.  On appeal, the Court of Appeals held that the public interest exception applied here because the "principal thrust or gravamen" of the plaintiffs' complaint was to advance the public interest.

The Supreme Court disagreed, holding that given the clear statutory language, the public interest exception could only apply when the sole motivation for the suit was the public interest.  If the plaintiff stands to receive any relief in addition to that received by the public in general, the exception cannot apply.  This narrow interpretation of the Section 425.17 exception is a significant victory for those seeking to preserve the vitality of public debate in California.

In an upcoming post, we will look more in-depth at anti-SLAPP statutes around the country and what they mean for journalists and news organizations.

Italian Prime Minister Accused of Using Libel Lawsuits to Pressure Journalists

Rachel Donadio wrote recently about Italy's litigious Prime Minister, Silvio Berlusconi.  In three separate stints as Prime Minister, Berlusconi has himself instituted at least two defamation lawsuits against his critics, and a third has been brought by a close associate.

These lawsuits include an action Berlusconi brought in Italy in July 2001 against the British weekly publication The Economist.  The Economist has been a frequent critic of Berlusconi's administrations, and his lawsuit centered upon an article about Berlusconi that appeared in an April 2001 issue of the magazine.  The cover of that issue bore the title "Why Silvio Berlusconi is unfit to lead Italy."  In September of this year, a court in Milan ruled in The Economist's favor and ordered Berlusconi to pay approximately $35,000 in costs.  The court's judgment, in Italian, is available here.  Berlusconi also sued a journalist with The Economist, David Lane, for his 2004 book "Berlusconi's Shadow."  The trial court likewise ruled against Berlusconi in his lawsuit against Lane.

More recently, a close associate of Berlusconi's brought a defamation action against Alexander Stille, an American critic.  In 2006, Stille published a book about Berlusconi entitled Sack of Rome: How a Beautiful European Country with a Fabled History and a Storied Culture Was Taken Over by a Man Named Silvio Berlusconi.  According to Donadio, the plaintiff in the lawsuit against Stille, who is the chairman of Berlusconi's Mediaset network, "objected to Stille's having reported that he was investigated in 1993 for illegal financing of the Socialist Party, without also noting that he was later cleared of those charges" and objected to Stille's claim that "Berlusconi 'has fused his business and private life almost totally,' as evidenced by his appointing [the plaintiff], 'his oldest childhood friend,' to run Mediaset."  The Italian court has yet to issue a ruling in this lawsuit.

Although Berlusconi was not successful in his actions against The Economist and Lane, Donadio reports that succeeding in court may not have been Berlusconi's primary goal in bringing those legal actions.  She writes:

But Stille and others contend that the point is not to win a judgment as much as to intimidate journalists and news outlets with the prospect of a lengthy and expensive court proceeding if they write something unfavorable. "For each of these suits, you may affect the behavior of another 100 journalists," Stille added.

Such litigation seems to have an effect.

Lane, of The Economist, said he was considering cutting all references to Berlusconi in the Italian — but not the British — edition of his forthcoming book on the Mafia. "I'm too tired of spending my own money," he said. "There are no medals to be won by being sued by Berlusconi." 

The accusation that a prominent and powerful public figure uses lawsuits to influence media coverage and as leverage to intimidate journalists attests to the potentially chilling effect the cost and expense of libel litigation can have on speech.  In America, lawsuits designed to chill speech have been termed "strategic lawsuits against public participation" or "SLAPP" suits.  In an effort to combat the chilling effect strategic litigation brought by a powerful person or company can have, a number of states have enacted what are called "anti-SLAPP" statutes.  These statutes provide procedural protections to media defendants and others subject to such actions.

As we will discuss in greater detail in a future post, anti-SLAPP statutes vary in form from state to state but typically provide the defendant with an opportunity obtain an early ruling on the merits of the lawsuit, and, if the defendant prevails, may also provide the possibity of recovering attorneys' fees.  These protections can ease the burden of litigation on a media defendant, and they can operate as a deterrent to those who would bring SLAPP suits.  States that have anti-SLAPP statutes include California, Massachusetts, New York, Louisiana, Georgia, Rhode Island, Maine, Indiana, Delaware, Minnesota, Nebraska, and Washington.  Thus, if you are sued in a state with an anti-SLAPP statute, you may well have an important additional arrow in your quiver to use in defending yourself.