AAN Advocacy Update – Van Dyke v. Retzlaff and Kent v. Hennelly

While we’re generally trying to do more in terms of updating AAN members on our advocacy activities via our social media feeds, we’ve joined two briefs alone in the past week and there’s only so much you can say in 280 characters. So here’s a slightly larger update about Van Dyke v. Retzlaff and Kent v. Hennelly.

In Van Dyke v. Retzlaff we are dealing with the applicability of the Texas anti-SLAPP law in federal court. The plaintiff filed a lawsuit after the defendant made numerous allegedly harassing, false, and defamatory statements about Plaintiff; a Second Amended Complaint was eventually filed asserting claims for libel per se, intrusion on seclusion,  and tortious interference with an existing contract. The defendant filed a motion to dismiss the lawsuit pursuant to the Texas Citizen Participation Act (TCPA), which is Texas’ version of an Anti-SLAPP statute.

The United States District Court for the Eastern District of Texas noted that the United States Court of Appeals for the Fifth Circuit (where this case is currently pending) has never ruled on whether a state Anti-SLAPP statute applies in federal court or even whether Anti-SLAPP statutes are procedural or substantive in nature.  As a result, the District Court held that the TCPA cannot be applied when a lawsuit is filed in federal court based on “diversity jurisdiction” (where the parties are from different states and the amount in question exceeds $ 75,000).

The defendant appealed to the United States Court of Appeals for the Fifth Circuit. Our brief, drafted by the Reporters Committee for Freedom of the Press and signed by a total of 40 organizations and companies, supports the defendant via two main arguments:

  • Application of state Anti-SLAPP laws in federal court is necessary to protect First Amendment freedoms. They are substantive in nature because they protect the right of free expression against the threat of expending significant resources in defending against frivolous lawsuits.  The express purpose of the TCPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law.” Strong Anti-SLAPP laws are particularly important to the news media because they allow media to report on matters of public concern without fear of harassment. The brief identifies several instances in which the media has relied on the TCPA, even though that law has only existed for a few years.
  • The TCPA should apply in federal court because it does not conflict with the Federal Rules of Civil Procedure (which guide federal court procedures) and because they follow what is known as the “Erie Doctrine” for applying state laws in federal court proceedings.  These were the bases for the holdings in the 1st and 9th Circuits which allowed application of state Anti-SLAPP laws in federal court.  It is worth noting as well that the 5th Circuit has assumed, based on the Erie Doctrine, that the TCPA and other state Anti-SLAPP laws from the region apply in federal court.  In addition, the TCPA is substantive, not procedural because it significantly affects the result of a litigation for the federal court to disregard the law of a state that would otherwise be controlling if the parties were in state court – which is clearly the case here.  In fact, the “twin aims of Erie” are the most important thing for the court to remember:  not recognizing the TCPA (or any state Anti-SLAPP law) in federal court would absolutely encourage forum shopping and create a backdoor to avoiding Anti-SLAPP laws.

Though a bit wonky in nature,  this is one of the most important legal issues today. Anti-SLAPP laws are one of the most valuable statutes on the books in terms of protecting our members.  The best of them – the ones that not only accelerate the proceedings, but also offer the prospect of attorney’s fees to a victorious defendant – are a proven deterrent where someone is contemplating the filing of a meritless lawsuit solely for the purpose of trying to stop or otherwise punish an opponent from speaking.  Anti-SLAPP laws exist in just over thirty states (and DC); it has generally been thought that these state Anti-SLAPP laws apply whenever state law might apply in the underlying case – that would include things like defamation, invasion of privacy and intentional infliction of emotional distress, the claims most often made in SLAPP suits.


Kent v. Hennelly also involves a procedural issue that has big implications for free speech. It’s also a brief drafted by the Reporters Committee for Freedom of the Press (this time on behalf of a total of 34 media organizations and companies).

The issue here is personal jurisdiction: where can you be sued when you publish on the Internet.  In this instance, we’re talking about two Facebook posts and an online article written by a South Carolina resident about a Tennessee resident who is the President of a Virginia corporation (and who had worked for a former Governor of Virginia). That Tennessee resident decided to file a defamation lawsuit in his home state. The defendant moved to dismiss the lawsuit because the United States District Court for the Eastern District of Tennessee lacked personal jurisdiction over him, given that he is a resident of South Carolina. The district court granted the motion, holding that the complaint does not allege minimum contacts by Hennelly in Tennessee.

The case was appealed to the United States Court of Appeals for the Sixth Circuit. Our brief in support of the defendant argues:

  • (1) Supreme Court precedent does not support the plaintiff’s claim of jurisdiction in Tennessee, which is essentially based on his own connections to the State (but the plaintiff’s connections to a state has repeatedly been rejected as the basis for jurisdiction over a defendant);
  • (2) the Court should align with several other United States Courts of Appeal in finding that a defendant must intentionally direct its conduct to the forum state before it is subject to jurisdiction based on online speech as evidenced by (a) the defendant directing electronic activity into the state, (b) with the manifested intent of engaging in business or other interactions within the State, and (c) that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts; and
  • (3) adopting a broad view of personal jurisdiction will create a chilling effect on speech as publishers self-censor to avoid jurisdiction issues and increasingly inward to purely local issues  to avoid any potential for regional, national (or any out of state) impact.