Anti-SLAPP law continues to cause headaches for 9th Circuit

A California law that allows defendants to escape litigation meant to hinder protected First Amendment activity continues to vex the 9th U.S. Circuit Court of Appeals.

On Wednesday, a three-judge panel of the court affirmed U.S. District Judge William H. Orrick's denial of a motion to strike and dismiss a fraud and RICO violation lawsuit Planned Parenthood is pursuing against anti-abortion activists who infiltrated and secretly filmed the organization's conferences.

Writing for a unanimous panel, Judge Ronald M. Gould said that federal court filings under California's Strategic Lawsuit Against Public Participation statute, known as anti-SLAPP motions, should be reviewed under the federal rules of civil procedure when based on purely legal arguments. Factual challenges, the court said, should be viewed as summary judgment motions.

But Gould, joined by his colleague, Judge Mary H. Murguia, wrote a special concurrence outlining his concern with allowing interlocutory appeals of anti-SLAPP motion denials. He urged the 9th Circuit to review that matter in an en banc sitting. Planned Parenthood v. Center for Medical Progress, 2018 DJDAR 4561 (9th Cir. May 16, 2018).

"Anti-SLAPP motions are hybrids of motions to dismiss and motions for summary judgment," Gould wrote. "The denial of either of these motions is generally unreviewable on interlocutory appeal."

The state's anti-SLAPP law allows defendants to seek dismissal of litigation early on if they can prove the case is meant to chill protected speech. Moving parties must establish that the issues at the heart of litigation pertain to protected acts of free expression, at which point plaintiffs must prove to the court that they are likely to succeed in order to save the case.

Many other states have adopted similar mechanisms and their application in federal court has been hotly debated, Gould noted in his opinion.

Gould himself sat on a 2003 panel that first adopted the interlocutory appeal rule for anti-SLAPP motions, joining a majority opinion written by Judge Marsha S. Berzon that permitted the procedure. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

"I have since receded from that opinion because I now believe the interlocutory appeal of this issue incorrect, potentially conflicts with federal procedural rules, and burdens the federal courts with unneeded interlocutory appeals," Gould wrote, adding district court certification of an appeal should be required for anti-SLAPP denials.

He added further that 9th Circuit precedent allowing review of anti-SLAPP denials, but not grants, was "absurd." Gould also said that anti-SLAPP rulings were not collateral orders, rulings that "resolve claims separable from the action."

The 9th Circuit has addressed anti-SLAPP motions in a number of high-profile cases. Much of the debate rests on whether the motion should be interpreted as procedural or substantive.

The court debated the issue hotly in an interlocutory anti-SLAPP appeal from litigation concerning Trump University in 2013.

In a three-judge panel opinion, Judge Kim McLane Wardlaw applied the court's own precedent in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), which first gave the 9th Circuit's blessing to the use of the motion in federal court.

Judges Alex Kozinski and Richard Paez called for an en banc rehearing of the case to reconsider Newsham, which failed.

Judge Paul J. Watford, joined by Kozinski, Paez and Judge Carlos T. Bea, wrote a lengthy dissent, arguing that both Batzel and Newsham were inconsistent with U.S. Supreme Court precedent and objecting to the circuit's interlocutory appeals precedent in the anti-SLAPP context.

Wardlaw and Judge Consuelo Callahan, joined by Judges William A. Fletcher and Gould, defended the precedent.

"Our dissenting colleagues wanted to take this case en banc to overrule Newsham, Batzel, and their progeny and, in doing so, create an inter-circuit split," the two wrote. "But our circuit has already held that citizens of the seven jurisdictions within our circuit that have anti-SLAPP laws should not be stripped of their state's free speech protections whenever they step inside a federal court."

Gould addressed Wardlaw's and Callahan's 2013 concerns about a split, pointing to a series of recent rulings from the D.C., 7th, and 10th Circuits that rejected the use of anti-SLAPP motions in federal court.

Gould made clear that he was not advocating to remove entirely the use of anti-SLAPP motions in federal court.

If the 9th Circuit does wish to revisit the anti-SLAPP debate en banc, finding the right case to adjudicate the issue would be the next step.

"We are pleased that our case can now proceed to trial to hold the defendants accountable for their actions," commented Amy L. Bomse, a partner at Arnold & Porter Kaye Scholer LLP, who represents Planned Parenthood.

Bomse declined to comment on Gould's concurrence, noting that the issues he addressed were not at the heart of the dispute on appeal.

Attorneys at the Freedom of Conscience Defense Fund, which represents a number of defendant anti-abortion organizations, did not respond to a request for comment Wednesday.