WRIT 340 Blog Post #3: The Argument for Federal Anti-SLAPP Legislation

From my review of the literature, I made the following argument regarding scholarly opinions on anti-SLAPP legislation:

While 21 states do not have anti-SLAPP statutes in place, journalists, lawyers and scholars alike agree that federal anti-SLAPP legislation is necessary in protecting the First Amendment.

After assessing each source I intend on using for my final assignment, I also pointed to the gap in knowledge related to the preceding argument:

  • Why do these states not have an anti-SLAPP law?
  • Why is anti-SLAPP legislation a state issue rather than a federal one?

According to all the media law scholars in my works cited, anti-SLAPP law should be a federal matter, as it relates to the First Amendment of the U.S. Bill of Rights.

As a refresher, the First Amendment officially states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.(Read more at Constitute Project)

As I have continued to conduct research on the subject, I have yet to find any author that argues against support for federal anti-SLAPP legislation. In fact, the American Bar Association itself announced the following decree:

“The American Bar Association encourages federal, state and territorial legislatures to enact legislation to protect individuals and organizations who choose to speak on matters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).” (Eric Goldman on Forbes)

The only material I found regarding why anti-SLAPP legislation does not exist in particular states/federally came from further review of the work by Kimberly Chow (which I included in my literature review).

In her article “Anti-SLAPP Statutes Face Setbacks,” Chow states, “While some worry that the ease with which defendants can remove actions to federal court would be a burden on the federal court system, proponents of the law argue that the burden will be minimal and that the removal provision is critical to the law’s effectiveness.”

Chow then goes on to explain the only case in which an anti-SLAPP law has been deemed unconstitutional. She explains, “In a disappointing ruling in May, the Washington Supreme Court struck down the state’s anti-SLAPP law in its entirety, holding that it violates the right to trial by jury under the Washington Constitution.”

From Chow’s article, we can therefore make two assumptions about the counterargument at hand:

  1. Some states (such as Washington) do not accept anti-SLAPP laws, because they jeopardize a citizen’s right to trial by jury.
  2. A federal anti-SLAPP law does not exist due to the burden such laws would bring onto the federal court system, as defendants could easily remove cases.

Although these conclusions provide a minimal response to the questions I have listed above, I still find the lack of a federal anti-SLAPP law, along with the lack of an explanation for why no such law exists, to be very frustrating.

Therefore, I turned to the article, “Getting SLAPP-ed in Federal Court: Applying State Anti-SLAPP Special Motions to Dismiss in Federal Court After Shady Grove” by Katelyn E. Saner.

Saner draws on previous cases, particularly the opinions in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., to evaluate whether state anti-SLAPP motions should apply in federal courts.

She writes:

Overall, states have a strong interest in protecting their citizens against SLAPP suits and equitably administering laws. The interest is particularly strong when the state law is grounded in state constitutional rights. Federal uniformity concerns do not supersede these strong state interests. On balance, the compelling state interest in protecting citizens and equitably administering laws weighs more heavily than federal uniformity concerns.

Ultimately, Saner argues that state anti-SLAPP special motions should indeed apply in federal courts. Her review, however, provides some insight as to why anti-SLAPP legislation is a state matter rather than a federal one.

Nevertheless, I still find that anti-SLAPP law should be applied nationally, because it is provides protection of an amendment listed in the United States Federal Constitution.

Screen Shot 2020-04-03 at 12.14.13 PM



Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s