The case of Peach v. Hagerman, 2024 WL 1748443 (W.D.Ky., April 23, 2024), arose from a Kentucky social worker who filed a complaint alleging possible child abuse. The person against whom the claim was made prevailed and fought off the charges at a hearing, and then sued the social worker for malicious prosecution, defamation and some other things arising from the social worker’s complaint. The social worker filed a motion to dismiss the lawsuit under Kentucky’s new Uniform Public Expression Protection Act (UPEPA), asserting the social worker’s protected right to file her complaint.

Now, however, we get to the inevitable fly in the ointment: The lawsuit had been filed not in Kentucky state court, but rather in the U.S. District Court for the Western District of Kentucky. Even before the UPEPA special motion to strike could be heard, there was a preliminary question as to whether Kentucky’s UPEPA even applied at all in federal court.

The United States of course has a bifurcated legal system of federal and state courts. A federal court sitting in diversity jurisdiction, however, is to apply the state law of the district in which the federal court is found. However, federal courts have their own procedural rules, embodied in the Federal Rules of Civil Procedure, known as the FRCP. What happens when the FRCP conflicts with state law?

The rule stated by the U.S. Supreme Court is that if the FRCP answers whatever issue is before the district court, then the FRCP shall apply to resolve that issue to the exclusion of the contrary state law. The question before the district court here is whether the Kentucky UPEPA should apply to allow the social worker a chance for an early dismissal of the plaintiff’s defamation case, or whether the FRCP should apply as it normally does in cases to allow the plaintiff to conduct discovery before the court seriously dismissal.

The district court noted that there was a split of rulings between the U.S. Circuit Courts of Appeals. The U.S. Circuits which have ruled that the FRCP applies instead of a state’s Anti-SLAPP laws (which would include the UPEPA) are the 2nd, 5th, 10th, 11th and DC Circuits. However, the 1st and 9th Circuits have gone the other way and held that the applicable state’s Anti-SLAPP laws should apply instead of the FRCP. Kentucky sits in the 6th Circuit, which so far as not decided the issues, although the district court noted that an appeal of this issue from Tennessee was before the 6th Circuit. So what to do?

The district court here held to the effect that the FRCP essentially provides for a procedure for dismissal of a claim through a summary judgment motion (FRCP 56), and this motion may be held at the onset of the litigation through an FRCP 12(b)(6) motion to dismiss. Thus, since the FRCP already resolved the issue, there FRCP would be applied instead of the Kentucky UPEPA.

Having held that the Kentucky UPEPA would not apply since the FRCP allows for an early dismissal of a claim, the court then next noted that summary judgment should not ordinarily be granted until the parties had completed discovery, which had not happened in this case. Therefore, the social worker’s motion was denied.

ANALYSIS

Although couched as procedural statutes, Anti-SLAPP statutes (including the UPEPA) are instead substantive law statutes that provide a substantive right to persons to be free of extended litigation when they are sued as a result of their lawful exercise of their free speech rights. The Prefatory Note to the UPEPA states:

“An Anti-SLAPP law, at its core, is one by which a legislature imposes external change upon judicial procedure, in implicit recognition that the judiciary has not itself modified its own procedures to deal with this specific brand of abusive litigation. Although procedural in operation, these laws protect substantive rights, and therefore have substantive effects. So, it should not be surprising that each of the 34 legislative enactments have been performed statutorily—none are achieved through civil-procedure rules.”

Comment 2 to UPEPA § 2 elaborates:

“Although the Act operates in a procedural manner—specifically, by altering the typical procedure parties follow at the outset of litigation—the rights the act protects are most certainly substantive in nature. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applying California’s anti-SLAPP law to diversity actions in federal court because the statute was ‘crafted to serve an interest not directly addressed by the Federal Rules: the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’). Otherwise stated, the Act’s procedural features are designed to prevent substantive consequences: the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13–CV–124, 2014 WL 2611746, at * 1 (S.D. Tex. June 11, 2014). As stated by one California court, ‘[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.’ People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (4th Dist. 2004).”

That some of the U.S. Circuits have utterly missed this point has lead to forum shopping on these Circuits by way of defamation plaintiffs bringing in federal court what would otherwise be purely state court proceedings, just to avoid the state Anti-SLAPP laws. How the Sixth Circuit will ultimately handle these cases is anybody’s guess, but eventually the U.S. Supreme Court will need to resolve the split within the Circuits, assuming that Congress does not take the matter into its own hands.

If you are curious about how the Federal Rules of Civil Procedure come about, the Rules Enabling Act of 1934 (28 USC § 2071, et seq.) authorizes the U.S. Supreme Court to enact court rules or procedure. Our highest court, however, delegates that function to the Judicial Conference to come up with those rules. The Judicial Conference is made up of ― you guessed it ― judges of the U.S. Circuit and District Court. The Judicial Conference is thus made up of the very judges who have failed to take action against the problem of so-called SLAPP suits in the first place. “Nothing to see here, Ma’am, now please do just move along.”

Ideally, the Judicial Conference would amend FRCP 12, which is the rule that allows for the dismissal of certain cases before the litigation really starts rolling along, so as to better protect free speech defendants from meritless litigation, but they have not done so. As just discussed, federal judges are historically loathe to admit that there is even any problem with anything in the first place, and so the odds of that happening are low. Thus, if anything is going to happen with Anti-SLAPP in the federal courts, it will likely take Congressional action to make it happen.

From time to time, Anti-SLAPP Acts have been introduced into various sessions of Congress, but those introductions have gone nowhere as so much good legislative proposals have done with that highly dysfunctional institution. This is odd as at the state level, at least, Anti-SLAPP legislation has proven to be that rare breed which is popular with both political parties. Nonetheless, with Anti-SLAPP legislation now having been adopted by a solid majority of states, pressure for a federal statute will continue to grow and I expect that someday we will seen a President sign it into law.

In the meantime, at the federal level the application of Anti-SLAPP laws is a mess as demonstrated by this case.