Techdirt: SCOTUS Nominee Brett Kavanaugh Problematic Opinion On Anti-SLAPP Laws

From Mike Masnick at Techdirt.

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 morejudges 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.