With the District of Columbia Circuit holding that the DC anti-SLAPP act does not apply in federal court, and at least four judges in the Ninth Circuit concluding that Circuit erred in applying state anti-SLAPP statutes in federal court, the need for a federal anti-SLAPP statute has become more urgent.
Accordingly, the “‘Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015” or the ‘‘SPEAK FREE Act of 2015” has been introduced in Congress. Notwithstanding its . . . interesting . . . name (seriously, who has to come up with the words to fit these acronyms?), the statute is a potential game-changer in this developing area of the law. Here are the details:
The proposed federal legislation would apply to any claim that “arises from an oral or written statement or other expression, or conduct in furtherance of such expression, by the person against whom the claim is asserted that was made in connection with an official proceeding or about a matter of public concern.” (This is broader than some state anti-SLAPP statutes, which apply only to speech made in a public or official proceeding).
Like the DC anti-SLAPP statute, the proposed federal anti-SLAPP act establishes a low threshold for the moving party, and a higher burden for the party opposing the motion:
If the party filing a special motion to dismiss a SLAPP suit makes a prima facie showing that the claim at issue arises from an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern, then the motion shall be granted and the claim dismissed with prejudice, unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
The proposed federal legislation requires an anti-SLAPP motion to be made within 45 days after service, or within 30 days after removal to federal court. It requires the Court to promptly hold a hearing on the motion. And it requires the Court to issue a ruling on the motion within 30 days after it is fully briefed or heard. (These hearing/decision deadlines, which are not in the DC anti-SLAPP statute, are an excellent idea).
The proposed federal legislation stays discovery “unless good cause is shown for specified discovery,” and allows for an immediate appeal “from an order granting or denying in whole or in part a special motion to dismiss.” It provides that a prevailing party shall be entitled to “litigation costs, expert witness fees, and reasonable attorneys fees,” while providing that the Court shall award similar fees and costs if it concludes that a motion was “frivolous or is solely intended to cause unnecessary delay.”
Like the DC anti-SLAPP statue, the proposed federal statute also contemplates a special motion to quash:
A person whose personally identifying information is sought in connection with a claim subject to the procedure described in section 4202(a) may at any time file a motion to quash the order to produce the information. If the party filing a motion to quash makes a prima facie showing that the order is for personally identifying information, then the motion shall be granted and the order to produce the personally identifying information shall be quashed, unless the responding party demonstrates with an evidentiary showing that the claim is likely to succeed on the merits of each and every element of the claim, in which case the motion to quash shall be denied.
Most importantly, given that more than 20 states do not have anti-SLAPP statutes, several other states have narrow statutes and there is now growing uncertainty whether anti-SLAPP statutes apply in federal court, the proposed federal legislation allows an action that involves a claim arising under the statute to be removed to federal court. If the anti-SLAPP motion is denied, the case returns to state court.