Ninth Circuit affirms lower court's analysis of CA anti-SLAPP law
Addressing a potential conflict between California’s anti-SLAPP law and the federal procedural rules, the Ninth Circuit last month specified what analysis courts should use when faced with a motion to dismiss a “Strategic Lawsuit Against Public Participation.”
On May 16th, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s decision to let Planned Parenthood Federation of America, Inc. v. Center for Medical Progress proceed. In doing so, a unanimous three-judge panel said that U.S. District Judge William Orrick III had correctly applied the 12(b)(6) motion to dismiss analysis and properly refused to grant the defendants’ anti-SLAPP motion.
The case arose when the women’s health organization Planned Parenthood sued the Center for Medical Progress, its founder David Daleiden, his colleague Sandra Merritt and others in 2016, claiming that during meetings and conferences with employees from Planned Parenthood, the defendants secretly recorded videos of conversations. The organization alleged that the defendants then edited the videos to create the impression that Planned Parenthood illegally sold fetal tissue. After the defendants shared the videos online, a controversy ensued. Planned Parenthood said the actions resulted in increased threats and harassment to staff.
Defendants, however, claimed they were working as “investigative journalists” and tried to use California’s anti-SLAPP law to get the case dismissed. California’s anti-SLAPP law was first enacted in 1992, with amendments over the years. It is considered to be one of the strongest in the country.
The District Court denied the motion, and the Court of Appeals affirmed: “To succeed on their anti-SLAPP motion, Defendants had to show both that their acts arose from behavior aimed at furthering their First Amendment speech rights, and also that Plaintiffs had shown no probability of success on their claims,” Judge Gould wrote. “Because Defendants failed to prevail on the second element, they lost their anti-SLAPP motion.”
The panel also clarified what inquiry courts should apply when faced with California’s anti-SLAPP motion, given that “[t]he degree to which the anti-SLAPP provisions are consistent with the Federal Rules of Civil Procedure has been hotly disputed.”
Looking to both binding and non-binding precedent, Judge Gould wrote that a court’s analysis of an anti-SLAPP motion will depend upon what the movant is claiming. “[W]hen an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard [for a motion to dismiss] and consider whether a claim is properly stated.” However, if the anti-SLAPP motion to strike “challenges the factual sufficiency of a claim, then the Federal Rule of Civil Procedure 56 standard will apply.” In the latter case, which is a motion for summary judgment, the panel noted that discovery must be allowed.
In a separate concurring opinion in the case, Judge Gould also addressed what he called the “appropriateness” of reviewing anti-SLAPP motions in interlocutory appeals. Gould noted that the procedure could conflict with the federal rules, and potentially burdens the federal courts. While there is currently existing precedent that protects the right to immediately appeal a denial of an anti-SLAPP motion in federal courts, the concurring opinion in Planned Parenthood raises questions about the strength and future of California’s anti-SLAPP law in federal courts.
Unfortunately, plaintiffs can often “forum shop” by choosing a jurisdiction that doesn’t have an anti-SLAPP law on the books. This includes bringing a SLAPP suit for federal claims in federal court, because previous cases have held that such cases are not subject to California’s anti-SLAPP law. To allay these concerns, Congress needs to enact strong federal anti-SLAPP legislation that would apply to federal claims in federal court across the country. For more information on the efforts to enact federal anti-SLAPP legislation, please visit www.anti-slapp.org.