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Joshua Rubin
Dr. Kathy Richardson
COM 450 A
13 April, 2015
Federal Anti-SLAPP Legislation: A Protection of the First Amendment
Citizens of the United States have the right to freedom of speech as part of the First
Amendment of the United States Constitution. SLAPP suits are a threat to the freedom of speech.
SLAPP suits are strategic lawsuits against public participation. SLAPP suits are used for the
purpose of frightening the defendant into abandoning their criticism of the prosecuting party. A
SLAPP suit differs from traditional lawsuits as it is a tactic to intimidate and oppress the speech
and expression of others. Theoretically, an example of this would be a large fast food chain filing
a SLAPP suit against a critic of the establishment with the intention of silencing the critic, rather
than pursuing of any sort of justice. This paper will argue that federal anti-SLAPP legislation is
necessary to protect the rights of persons to publically express their thoughts, beliefs, opinions,
and grievances.
Some states, such as Texas, currently have anti-SLAPP laws protecting citizens from
SLAPP suits. Anti-SLAPP legislation began to appear in the late 1980s and has steadily spread to
about half of the United States. They are interesting laws in that they generally offer few
significant new protections. They serve largely to emphasize existing protections and to facilitate
and expedite the dismissal of groundless cases against citizens engaging in protected speech
(Norman 29).

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The anti-SLAPP law in Texas is called the Citizens Participation Act. It is designed to
encourage and safeguard the constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to the maximum extent permitted by
law and, at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury, (H.B. No. 2973 Section 2 Subtitle B, Title 2, Chapter 27, Sec. 27.002). All
states should adopt federal anti-SLAPP legislation because it would provide the same protection
of First Amendment rights to citizens without regard to their place of residence.
The First Amendment of the United States Constitution was created to guarantee the
freedoms necessary to a democracy where ideas and thoughts can be expressed and shared
without intimidation or oppression. The First Amendment 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 (Bill of Rights). SLAPP suits pose a threat
to these freedoms for those citizens living in states without anti-SLAPP protection. Federal antiSLAPP legislation would combat the widespread infringement of individuals first amendment
rights by making it easier to get SLAPP suits dismissed by courts and even allow defendants to
be compensated for their legal fees.
A recent example of the Texas Citizens Participation Act being utilized is Williams v.
Cordillera Communications, Inc., 2014. Broadcast companies under the name KRIS
Communications had a SLAPP filed against them by Christopher Williams. He argued that he
was defamed by KRIS Communications reports that he committed illegal acts of sexual
behavior with students in several schools. District Court Judge Nelva Gonzales Ramos ruled on
June 11, 2014 that state anti-SLAPP statutes can be enforced in federal courts after looking to a

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Fifth Circuit opinion that applied the Louisiana anti-SLAPP law in federal court. She says in her
article:
Because the two states have no material difference between the two states anti-SLAPP
laws, Ramos found that anti-SLAPP statutes such as the TCPA are enforceable in federal
courts. Catherine Robb, a partner for Haynes and Boone LLP who served as counsel to
KRIS, said the courts ruling explicitly states that anti-SLAPP laws apply in federal
courts, where they could only assume they applied in the past. For that reason, it was a
really good ruling because it was a little bit of an uncertainty because there werent
opinions that [the courts] can point to, Robb said. (Keeton-Olsen).
Williams v. Cordillera Communications, Inc. is an example of SLAPP suits cutting down
first amendment rights for other persons or corporations. A news broadcast company reports a
story about teacher Christopher Williams being accused of criminal acts of sexual behavior.
Williams files suit against the institution that is reporting the news. The act of filing this lawsuit
is an attempt to disregard the freedom of the press, and an attempt to get KRIS Communications
to either silence themselves or have a court silence them with a libel suit.
Without the Texas Citizens Participation Act, KRIS Communications may have been
denied its freedom of speech. A precedent would have been set, and more people would be afraid
to speak freely about important issues, fearing the legal ramifications. This ripple effect would
begin to erode citizens constitutional First Amendment rights.
According to anti-slapp.org, only twenty-nine states have enacted anti-SLAPP
legislation. The citizens of the remaining twenty-one states are subject to censorship and
oppression via legal wrangling.

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Another example of one party limiting another partys personal freedoms is mentioned in
an article by Merriam and Benson. It refers to a SLAPP suit the Army Corps of Engineering filed
against a protester. The Assistant Counsel for the Corps said, [a]t the hearing, there were people
saying that they had something to say, but felt they could not .... We were concerned that the
public hearing was being stifled by the lawsuit" (22). It is a demonstration of the consequences
that arise from SLAPP suits. A common theme in cases where there is no anti-SLAPP law
protecting First Amendment rights is that the full potential of public participation is affected
when people are afraid of being penalized for expressing those freedoms guaranteed by the Bill
of Rights. In their article Identifying and Beating a Strategic Lawsuit against Public
Participation, Merriam and Benson also state:
SLAPP suits also inhibit group participation. Kent Kammerer is a member of a
Seattle neighborhood coalition that is active in local politics and meets regularly
to discuss city concerns. Some group members were targeted by SLAPP suits, and
Kammerer says that the potential for further suits has a discernable effect on his
group. He noticed formerly active citizens become much more cautious in their
political activity, even when they had not personally been SLAPP suit targets.
(Merriam 22)
SLAPP suits could discourage all potential litigants, whether they be a person or a
corporation, from voicing concerns, standing up for their beliefs, and in some cases refuting false
claims that protect their reputations. When active citizens become too cautious, the First
Amendment gets trampled by those with seemingly unlimited resources using intimidation and
fear tactics. A society cannot grow and thrive when citizens do not have faith or confidence in its
foundation the United States Constitution. A federal anti-SLAPP law would provide a more

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predictable and consistent framework for protection of First Amendment rights. It would prevent
cases like Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. where a fractured
collection of opinions by the Supreme Court justices was produced.
Before the Shady Grove case, state anti-SLAPP laws were interpreted differently from
case to case. In one case, United States ex rel. Newsham v. Lockheed Missiles & Space Co. 1999,
the Ninth Circuit court said Californias anti-SLAPP law could be used in federal court because it
is crafted to serve an interest not directly addressed by Federal Rules of Civil Procedure: the
protection of the constitutional rights of freedom of speech and petition for redress of
grievances (Quinlan 382-383). The Federal Rules of Civil Procedure cannot protect the rights
to freedom of speech or petition for redress of grievances because it does not address these First
Amendment rights. The Ninth Circuit court acknowledges that without Californias anti-SLAPP
law, these rights would be in jeopardy of being chilled, and voices would be silenced.
In another case, Rogers v. Home Shopping Network, Inc., a federal district court would
not apply part of Californias anti-SLAPP law on the grounds that it was in direct conflict with
one of the Federal Rules of Civil Procedure, and in Verizon Delaware, Inc. v. Covad
Communications Co. the Ninth Circuit held that granting a special motion to strike without
giving plaintiffs an opportunity to amend their initial complaint would directly collide with
[Rule] 15(a)s policy favoring liberal amendment (Quinlan 383-384). Justice Stevens argued
that federal rules must be interpreted with some degree of sensitivity to important state
interests and regulatory policies, and that federal courts should apply the Rules of Civil
Procedure to state law claims against the background of Congress command that such rules not
alter substantive rights (Quinlan 385-386).

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To summarize, if a federal court decides that a Federal Rule of Civil Procedure and a state
law conflict, but the application of the rule modifies a substantive right, then that court must
contemplate how the rule can be interpreted within reason to avoid the modification of that right.
If the conflict cannot be avoided, Justice Stevens would apply a state procedural rule that is
sufficiently interwoven with the scope of a substantive right or remedy. For the Shady Grove
case, Justice Scalia wrote the lead opinion, with Justice Stevens siding with the other four
members of the majority, but for different reasons, and Justice Ginsburg writing a dissent for the
minority. Though Justice Stevens is in the majority, he agrees with the minority that conflicts
between state laws and Federal Rules of Civil Procedure could be resolved in favor of a state
procedural law with substantive character. Some courts have applied Justice Scalias opinion, but
many more courts have applied Justice Stevenss opinion (Quinlan 386-388).
The Ninth Circuit has upheld its approach to anti-SLAPP laws without referencing Shady
Grove Orthopedic Associates, P.A. v. Allstate Insurance Company. However, two judges on that
circuit have recently called for reconsideration and overruling of the Newsham decision. Other
courts have continued granting protection for SLAPP targets within the context of the Ninth
Circuits precedent (Quinlan 394-395). The absence or lack of a federal anti-SLAPP law will
raise more questions and confusion. Figuring out which state anti-SLAPP laws can be used and
when they can be used, as well as whether those laws will conflict with Federal Rules or not will
repeatedly be an issue. The need for an anti-SLAPP statute on the federal level is too great.
Recently, United States Senator Jon Kyl introduced the Free Press Act of 2012 which was
a federal anti-SLAPP bill. It was referred to the Committee on the Judiciary, but it did not make
any progress. Kyl retired a few months later (Richardson 257-259). A summary of the bill says,
A representative of the news media (as defined in section 552(a)(4) of title 5) may file a special

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motion to dismiss any claim asserted against the representative of the news media in a civil
action if the claim arises in whole or in part from an oral or written statement or other expression
that is on a matter of public concern or that relates to a public official or figure (Text of the
Free Press Act of 2012). The bill was a step in the right direction for anti-SLAPP legislation but
a better model might be either the Texas Citizens Participation Act or the California Civil Code
of Procedure that pertains to SLAPP suits, which reads:
(1) A cause of action against a person arising from any act of that person in
furtherance of the person's right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue shall
be subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail on
the claim. (2) In making its determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which the liability or
defense is based. (3) If the court determines that the plaintiff has established a
probability that he or she will prevail on the claim, neither that determination nor
the fact of that determination shall be admissible in evidence at any later stage of
the case, or in any subsequent action, and no burden of proof or degree of proof
otherwise applicable shall be affected by that determination in any later stage of
the case or in any subsequent proceeding. (Cal. CCP. Code 425.16(b))
The anti-SLAPP statute from California provides the basic framework for what a federal antiSLAPP statute might look like, with some definition of the law modeled after the Texas Citizens
Participation Act. Using both of these strong laws as templates, a federal Anti-SLAPP law might
look as follows:

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The purpose of this law is to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law while simultaneously
protecting the rights of a person to file meritorious lawsuits for demonstrable
injury. The Court will determine whether or not the plaintiff has established that
there is a chance that the plaintiff will prevail on the claim considering the
pleadings all supporting and opposing statements concerning the facts upon which
the responsibility or defense is based. If the Court determines that the plaintiff has
established a chance that he or she will prevail on the claim, neither that
determination nor the fact of that determination shall be admissible in evidence at
any later stage of the case, or in any subsequent action, and no burden of proof or
degree of proof otherwise applicable shall be affected by that determination in any
later stage of the case or in any subsequent proceeding. (Texas Citizens
Participation Act) (California Code of Civil Procedure. Code 425.16(b)
This summary of what the anti-SLAPP law is meant to do echoes the Texas Citizens
Participation Act and the excerpt of the California Code of Civil Procedure which provide a
step-by-step process for the court to use to determine whether a suit is a SLAPP suit or not. The
anti-SLAPP law drafted from the Texas and California laws would demonstrate strong protection
of the citizens First Amendment rights. It would help all citizens feel safer about freely
expressing their ideas and opinions publically without repercussions. Shannon Hartzler says it
best in her article Protecting Informed Public Participation: Anti-Slapp Law and the Media
Defendant, a model statute needs both aspects of the statute to work toward the acts of free

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speech and petitioning activity genuinely aimed at procuring government action or sparking
debate on public issues. (1280)
ONeill states that the courts gave the right to petition a broader interpretation. Today, the
right to petition protects any peaceful, legal attempt to influence any branch of government on
any level. This new interpretation includes filing complaints, reporting violations of law,
testifying before government bodies, writing letters, lobbying legislatures, advocating before
administrative agencies, circulating petitions, conducting initiative and referendum campaigns,
and filing lawsuits. ONeill identifies that SLAPP suits are a conflict of parties exercising their
right to petition - the original person or corporation that is petitioning and the person or
corporation filing the SLAPP suit against them (482-483). One can argue that the filing of a
SLAPP suit is their way of expressing the right to petition the government or a redress of
grievances, thus being protected by the First Amendment. SLAPP suits, however, are brought
against public participation, which is essential to the right to petition (483). The persons or
corporations who file SLAPP suits are not hoping to win their case. The purpose of SLAPP suits
is to extinguish others rights to speak freely and petition by draining the defendants resources
until they retract their statements. ONeill quotes a SLAPP filer saying, even if I lose the
cases, I'm still going to win because I'm [going to force them] to spend at least $50,000.00 each
in legal fees. Either way, I win" (484). SLAPP suits are not a form of petition that can be
protected by the First Amendment. They are strategically designed to oppress the First
Amendment rights of persons or corporations.
The freedoms provided by the First Amendment of the United States Constitution are
treasures that should be protected. SLAPP suits oppose what the First Amendment represents,

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and the application of Anti-SLAPP legislation on the federal level would safeguard the First
Amendment rights of all citizens of the United States.

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Works Cited
California Code of Civil Procedure. Code 425.16(b)
Shady Grove Orthopedic Associates, P.A., Petitioner, v. Allstate Insurance Co. U.S. Supreme
Court. N.d. Scholar.google.com. N.p., n.d. Web. 15 Nov. 2014.
"State Anti-SLAPP Laws." Public Participation Project RSS. N.p., n.d. Web. 15 Nov. 2014.
Texas Citizens Participation Act. H.B. No. 2973 Section 2 Subtitle B, Title 2, Chapter 27, Sec.
27.002
"The Bill of Rights: A Transcription." National Archives and Records Administration. National
Archives and Records Administration, n.d. Web. 08 Nov. 2014.
Williams v. Cordillera Communications, Inc., Civil Action No. 2: 13-CV-124 (S.D. Tex. June 11,
2014).
Hartzler, Shannon. "Protecting Informed Public Participation: Anti-Slapp Law and the Media
Defendant." Scholar.valpo.edu. ValpoScholar, 2007. Web. 12 Apr. 2015.
Merriam, Dwight H., and Jeffery A. Benson. "Identifying And Beating A Strategic Lawsuit
Against Public Participation." Duke Environmental Law & Policy Forum.
Scholarship.law.duke.edu. Duke University, n.d. Web. 16 Nov. 2014.
Norman, Catherine S. "Anti-SLAPP Legislation and Environmental Protection in the USA: An
Overview of Direct and Indirect Effects." Review of European Community &
International Environmental Law 19.1 (2010): 29. Legal Collection. Web. 13 Nov. 2014.

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O'Neill, Jesse J. "The Citizen Participation Act of 2009: Federal Legislation as an Effective
Defense against SLAPPS." Environmental Affairs 28.477 (n.d.): 482-84. Web. 28 Nov.
2014.
Quinlan, Colin. "Erie And The First Amendment: State Anti-Slapp Laws In Federal Court After
Shady Grove." Columbia Law Review114.2 (2014): 367-406. Legal Collection. Web. 29
Oct. 2014.
Richardson, Dena M. "Power Play: An Examination Of Texas's Anti-Slapp Statute And Its
Protection Of Free Speech Through Accelerated Dismissal." St. Mary's Law Journal 45.2
(2014): 245-282. Legal Collection. Web. 29 Oct. 2014.
"Text of the Free Press Act of 2012." GovTrack.us. N.p., n.d. Web. 16 Nov. 2014.
Keeton-Olsen, Danielle. "District Court Rules That Texas Anti-SLAPP Law Applies in Federal
Court." Reporters Committee for Freedom of the Press. N.p., 30 June 2014. Web. 09 Nov.
2014.
The Purdue OWL. Purdue U Writing Lab, 2010. Web. 30 November 2014.