Given the patchwork of protection provided by state Anti-SLAPP laws, forum shopping by those who want to silence speakers through judicial harassment abounds. Because even the best states’ Anti-SLAPP laws can often be circumvented, a federal Anti-SLAPP law is essential to defend against efforts to chill speech, press, and assembly rights. As the map linked below shows, whether state Anti-SLAPP laws apply in federal diversity cases is anything but resolved. The First and Ninth Circuits have held that Anti-SLAPP laws apply, while the Second, Fifth, Tenth, Eleventh, and D.C. Circuits have held the opposite. The other Circuits have yet to answer the question, leaving the law unclear in many jurisdictions. The U.S. Supreme Court has repeatedly refused to grant cert. to clarify the issue.
Even in federal courts that would otherwise apply state Anti-SLAPP laws, plaintiffs can circumvent those laws by asserting federal – rather than state – causes of action. State Anti-SLAPP protections afford no protection against claims filed in federal court under federal law, and plaintiffs oftentimes can easily include a federal claim to avoid the reach of an otherwise applicable state Anti-SLAPP law.
On September 15, 2022, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, introduced H.R. 8865, the
Strategic Lawsuits Against Public Participation (SLAPP) Protection Act to establish a procedure to dismiss and deter strategic lawsuits against public participation (SLAPPs) and punish entities that attempt to use this litigation to stifle First Amendment protected speech. The need for a federal law is clear due to the abundant forum shopping taking place throughout the country to avoid Anti-SLAPP protections resulting in a disproportionate burden on our federal court system and open means by which those who speak truth to power and expose wrongdoing can still be silenced by way of judicial harassment.
