AAN Fights to Defend Anti-SLAPP Laws

AAN joined 26 other media organizations and companies on an amicus brief (below) filed on January 10 in the U.S. Court of Appeals for the Seventh Circuit. At issue is the application of the State of Washington’s “Anti-SLAPP” law in a federal court proceeding.

If you’re not fully aware of “Anti-SLAPP” laws (though most alt-weeklies probably are after Washington City Paper was sued for defamation by the owner of the local NFL team a couple years ago), they exist in 28 states, the District of Columbia and Guam. These laws act as a big deterrent to frivolous lawsuits – most often defamation lawsuits – that are filed simply to retaliate against someone who has spoken critically on an matter of public interest and to deter others from doing the same. They protect free speech by accelerating the time in which a defendant can get the case kicked out of court, though some also provide for damages to a defendant who gets the case dismissed via an Anti-SLAPP law’s “special motion to dismiss”.

The case we’re dealing with involves a lawsuit filed by Intercon Solutions, Inc. against a Basel Action Network, who alleged that Intercon had shipped e-waste to China. The lawsuit was filed in the United States District Court for the Northern District of Illinois. BAN, however, is a Seattle, Washington based company and invoked Washington’s “Anti-SLAPP” law. Washington was the first state to have enacted an Anti-SLAPP law, doing so in 1989 and amending the law in 2010.

As currently written, the law says that a lawsuit must be dismissed if the defendant can show by a preponderance of the evidence (a rather low threshold) that speech about public participation and petition are being threatened and, if that occurs, the plaintiff cannot meet its burden of showing by clear and convincing evidence (a much higher threshold) that it has a “probability of prevailing” in its lawsuit. The District Court held that the Washington law’s standard was higher than required by the Federal Rules of Civil Procedure the standard motion to dismiss situation; as such, the Washington Anti-SLAPP law cannot be applied in federal court cases.

Of course, if it stands, this ruling will render these state Anti-SLAPP laws largely meaningless. There would be an uptick in frivolous, harassing lawsuits even in states with Anti-SLAPP laws; they’d just be filed in federal court (which can happen if the litigants are from different states and “amount in controversy” exceeds $ 100,000).

That’s why we filed our brief, which makes the following arguments:

  • Anti-SLAPP laws exist because it has long been recognized that burdensome civil litigation has a chilling effect on public debate. That’s why federal courts have always tried to resolve claims involving protected speech as quickly as possible. Federal courts have uniformly applied a relevant state law when asked to do so. The 9th Circuit was the first Appellate Court to say that a state Anti-SLAPP law (California’s) applied in a case filed in federal court. Since then the 1st and 5th Circuits have done the same. The Northern District of Illinois is the first federal court to object to applying the Washington Anti-SLAPP law. It was only the 2nd court ever to decide that a state Anti-SLAPP law cannot be applied in federal court. The only other court reaching the same conclusion was the United States District Court for the District of Columbia, which so held in 2012. But every other federal court to decide the issue since has rejected the D.C. Court’s position, so that case is viewed as an outlier. The brief explains in more detail why, the D.C. Court’s legal reasoning is flawed and other courts are justified in rejecting that holding, as this court should as well.

  • Anti-SLAPP laws help the media by either deterring frivolous lawsuits or lessening their impact. Our brief lists several recent cases where Anti-SLAPP laws have been used by the media to avoid drawn out litigation on matters of public concern. A ruling that state Anti-SLAPP laws cannot be applied in federal courts would create a gaping loophole that would swallow up this immensely helpful law. In fact, you’re also going to see more cases like the one here: where a plaintiff “forum-shops” to sue a Seattle resident in Illinois court.

  • Finally, we ask the court to confirm that a defendant can immediately appeal a lower court decision denying a special motion to dismiss under an Anti-SLAPP statute. Again, most federal courts have held this type of ruling is immediately appealable, recognizing the need for quick resolution where free speech is involved.

In many respects, Anti-SLAPP laws are one of the most important legal protections available to AAN members. We will continue to participate in these cases, will continue to support the nascent movement for a federal Anti-SLAPP law (which would not only ensure that this protection exists in federal court cases but also would allow defendants in states without this type of law to enjoy its protections) and are available to support efforts to enact Anti-SLAPP laws in states where they don’t exist.

Please feel free to contact AAN Legal Counsel Kevin M. Goldberg at goldberg[at]fhhlaw.com or 703-812-0462 if you have any questions about this brief, this issue or other legal issues.