At a wonderful panel earlier this month at the ABA Communications Forum in Arizona, leading media attorneys discussed anti-SLAPP lawsuits and developments from around the country. While courts elsewhere are grappling with many of the same issues as in DC (is there a right to immediate appellate review from the denial of an anti-SLAPP motion; in what circumstances should discovery be allowed; what is the applicable standard in deciding whether to grant an anti-SLAPP motion), I learned of a new argument that has been advanced in the “other” Washington.
As detailed in this amicus brief filed by the ACLU in Washington state, opponents of anti-SLAPP motions are now arguing that the anti-SLAPP statute, to the extent it imposes a burden that is different from that typically found in court rules, violates a plaintiff’s “access to courts.” The brief explains that the rules allow a court to keep a case from the jury only if it finds that the motion to dismiss or summary judgment standard is satisfied. To the extent the anti-SLAPP statute allows the court to dismiss the suit by a different standard than that required by the court rules, the brief argues, it restricts the plaintiff’s right of access to a jury, and the courts.
This is an interesting argument that, to date, has not been made in the District of Columbia. Given that the DC courts are currently grappling with the issue of what “likely to succeed” means under the DC anti-SLAPP statute, I would expect a party to make the “access to courts” argument soon.
(I also learned that non-movants are increasingly making the related argument that an anti-SLAPP statute violates the Seventh Amendment’s right to a jury trial. That argument, however, has already been made in cases involving the DC anti-SLAPP statute (including the Adelson case in the SDNY and in the Forras appeal currently pending in the DC Circuit, which I will discuss in my next post)).