Lina Dayem1Lina Dayem is an Articles Editor of The University of Chicago Law Review and a J.D. candidate in the University of Chicago Law School Class of 2022. She received her B.A. in 2013 and M.A. in 2017, both from the University of Chicago.
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A picture is worth a thousand words—but only in certain federal circuits. Perhaps this is the moral of La Liberte v. Reid (2d Cir. 2020), a July 2020 Second Circuit case at the intersection of civil procedure, politics, and free speech on the internet. The case deepens a circuit split regarding the applicability of state public-speech protection laws in federal diversity suits under the Erie Doctrine.
I. Introduction to Anti-SLAPP
Strategic Lawsuits Against Public Participation (SLAPPs) are civil tort actions, commonly libel or defamation suits, used to stifle political expression. In a 1989 article, Professor George Pring—who coined the term “SLAPP” with Professor Penelope Canan—explained that the “apparent goal of SLAPPs is to stop citizens from exercising their political rights or to punish them for having done so.” Put differently, the purpose of a SLAPP is not necessarily a court victory; rather, the idea is to silence the opponent with the threat of high legal defense costs. Even for defendants faced with meritless suits, silence may be a much easier solution than “a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.”
In response to a rise in SLAPPs and the chilling of protected speech that they entail, a majority of states and the District of Columbia have enacted anti-SLAPP statutes, which vary widely in the scope of their protection. Often, these statutes involve procedural mechanisms that further the substantive goal of protecting free speech—such as California’s “special motion to strike,” which forces the moving party to first demonstrate that the lawsuit is based on her exercise of her free-speech rights. If demonstrated, the burden shifts to the plaintiff to present evidence that shows a reasonable probability of succeeding in his case.
However, despite past and current efforts from Congress, there is currently no federal anti-SLAPP statute. Therefore, the only way for a defendant to assert anti-SLAPP protection in federal court is if state law controls in a federal diversity suit. The applicability of state law in federal court has been governed by the Supreme Court’s decision in Erie Railroad Co. v. Tompkins (1938) and its progeny. With the two objectives of discouraging forum shopping and avoiding the inequitable administration of the laws, the Supreme Court in Erie held that federal district courts sitting in diversity must apply the law of the state in which they sit unless the state and federal laws conflict. A few decades later, the Supreme Court refined Erie in Hanna v. Plumer (1965), which held that federal procedural rules directly addressing an issue are controlling for actions brought in federal court. More recently, the Supreme Court once again addressed the applicability of state law in federal court in Shady Grove Orthopedic v. Allstate Insurance Co. (2010). A fractured Court issued its decision with two justices articulating competing tests to determine whether a rule is procedural or substantive.
With a lack of clear guidance from Congress or the Supreme Court, the federal circuit courts disagree about the extent to which state anti-SLAPP laws are enforceable in federal diversity suits. Three factors exacerbate this disagreement: (1) the comingling of procedural and substantive elements in state anti-SLAPP statutes, (2) the vast diversity of state anti-SLAPP statutes, and (3) the existence of the two competing tests as articulated in Shady Grove.
II. La Liberte v. Reid
On June 25, 2018, Roslyn La Liberte attended a city council meeting in Simi Valley, California, to speak out against a state sanctuary immigration law. During the meeting, La Liberte was photographed wearing a “Make America Great Again” cap and standing in front of a fourteen-year-old Hispanic boy. Her mouth was wide open, and her hand was on her throat. An activist tweeted the photo, adding this caption:
“You are going to be the first deported” [and] “dirty Mexican” [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast.
The photo went viral and, one day later, was reposted on Instagram by Joy Reid, an MSNBC host, with this caption:
He showed up to a rally to defend immigrants . . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make this picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.
On the same day, however, the boy in the photo appeared on television in Los Angeles stating that La Liberte did not yell any racial slurs and that they engaged in a “civil” discussion. Meanwhile, La Liberte claimed that she had received hate mail, including threats and calls for her to commit suicide. Finally, on July 1, Reid posted the same photo, juxtaposed against a black-and-white photo of one of the Little Rock Nine walking in front of a screaming white woman, with this caption:
It was inevitable that this [juxtaposition] would be made. It’s also easy to look at old black and white photos and think: I can’t believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage.
On July 2, upon the demand of La Liberte’s lawyer, Reid removed the posts and publicly apologized on her social media accounts. La Liberte then sued Reid for defamation in the Eastern District of New York, arguing that Reid’s posts falsely accused her of yelling racist slurs at the boy in the photo.
Sitting in diversity, the district court applied California law by the agreement of the parties. The issue was whether California’s “motion to strike” conflicted with Federal Rule of Civil Procedure 12(b)(6). To survive a Rule 12(b)(6) motion, a claim must meet a “plausibility” standard; on the other hand, the motion to strike requires a “probability” standard. Since the applicability of California anti-SLAPP laws had not yet been decided by the Second Circuit, the district court considered how it applied in the Ninth Circuit in Planned Parenthood v. Center for Medical Progress (9th Cir. 2018), which indicated that “when an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated.” The district court dismissed La Liberte’s defamation claim under 12(b)(6). Because Reid sought attorneys’ fees and costs under the California anti-SLAPP statute, the court also evaluated the special motion to strike and struck La Liberte’s claim.
In an opinion vacating and remanding the district court’s decision for further proceedings, the Second Circuit held that California’s anti-SLAPP statute was inapplicable in federal court because it conflicted with Federal Rules of Civil Procedure 12 and 56. Writing for the court, Judge Dennis Jacobs elucidated this matter of first impression for the circuit. California’s anti-SLAPP statute dictates that a defendant may file a “special motion to strike a claim,” which a court should grant “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
First, Judge Jacobs surveyed the other circuits’ approaches to the issue. Judge Jacobs recognized that the Fifth, Eleventh, and D.C. Circuits have each held that the various iterations of an anti-SLAPP special motion are inapplicable in federal court because they conflict with the Federal Rules of Civil Procedure. Conversely, he identified the First and Ninth Circuits as finding no conflict between the federal rules and various anti-SLAPP special motions.
To determine whether the Federal Rule will govern, Judge Jacobs applied the test articulated by Justice Antonin Scalia in Shady Grove: Does the Federal Rule answer the same question as the special motion to strike? Judge Jacobs affirmed that the special motion to strike answers the same question as Federal Rules 12 and 56. Relying heavily on the persuasive authority of the D.C. Circuit in Abbas v. Foreign Policy Group, LLC (D.C. Cir. 2015) and the Eleventh Circuit in Carbone v. Cable News Network, Inc. (11th Cir. 2018), Judge Jacobs held that the special motion to strike conflicted with Rule 12 because they both “establish the circumstances under which a court must dismiss a plaintiff’s claim before trial.” Furthermore, he held that the special motion conflicted with Rule 56. While Rule 56 “enables plaintiffs to proceed to trial by identifying any genuine dispute of material fact,” the anti-SLAPP statute renders it meaningless, since the plaintiff is required “to prove that it is likely, and not merely possible, that a reasonable jury would find in his favor.”
Crucially, the Second Circuit stands in direct opposition to the Ninth Circuit, which first interpreted the same California statute and its special motion to strike as applicable in federal courts in United States ex rel. Newsham v. Lockheed Missiles Space Co. (9th Cir. 1999). Drawing upon the “twin purposes of the Erie rule—discouragement of forum-shopping and avoidance of inequitable administration of law,” the Ninth Circuit held that “California’s ‘special motion to strike’ add[ed] an additional, unique weapon to the pretrial arsenal.” The court concluded that “if the anti-SLAPP provisions [were] held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have significant incentive to shop for a federal forum.” By contrast, in La Liberte, the Second Circuit expressly rejected the idea that the Federal Rules and California’s anti-SLAPP statute “can exist side by side . . . without conflict.”
In La Liberte, Judge Jacobs noted that some Ninth Circuit judges have expressed reservations about whether Newsham remains good law after Shady Grove. Indeed, with its Newsham precedent, the Ninth Circuit is the only circuit to rely on case law predating Shady Grove. But two weeks after La Liberte, the Ninth Circuit reaffirmed its position in Stephanie Clifford v. Donald Trump (9th Cir. 2020). The court acknowledged that by allowing Texas anti-SLAPP laws to enter federal court, it directly conflicted with the Fifth Circuit. Nevertheless, explaining that it interpreted an “indistinguishable” California statute in Newsham, the court steadfastly adhered to its precedent by recognizing the Texas anti-SLAPP statute. Despite the skepticism of some Ninth Circuit judges that Judge Jacobs alluded to in La Liberte, the Clifford decision highlights just how deep the analytical schism is between the Ninth Circuit and the others.
Besides the Ninth Circuit, all other circuits rely on the Supreme Court’s decision in Shady Grove to determine whether a law is substantive or procedural. Interestingly, though, the circuits’ reliance on Shady Grove feeds into their disagreement. Shady Grove was handed down by a fractured Court. Because no opinion commanded a majority, the Supreme Court did not provide definitive guidance to lower courts. As a consequence, lower courts do not agree on which opinion to follow and have inconsistently applied the case. Justice Scalia authored a four-justice plurality opinion, with Justice John Paul Stevens providing the crucial fifth vote in his partial concurrence. Both Justices reached the same conclusion but articulated different reasoning. Specifically, each Justice posited a different two-part test to determine whether in diversity suits state or federal rules should control.
In Justice Stevens’s test, step one asks “whether the scope of the federal rule is sufficiently broad to control the issue before the court, thereby leaving room for the operation of seemingly conflicting state law.” Step two asks whether the application of a federal rule “effectively abridges, enlarges, or modifies a state-created right or remedy.” The First Circuit, citing favorably to Justice Stevens’s framework, held that because Maine’s anti-SLAPP motion to dismiss was “so intertwined with a state right or remedy[,] it functions to define the scope of the state-created right.” Therefore, the court ruled that the anti-SLAPP statute could not be displaced by a 12(b)(6) motion to dismiss.
In Justice Scalia’s test, step one asks whether a federal rule “answers the question in dispute.” Step two asks whether the federal rule regulates procedure by “govern[ing] only ‘the manner and the means’ by which litigants’ rights are ‘enforced.’” If so, the federal rule controls. Although the La Liberte court favorably cited Justice Scalia’s opinion and analyzed step one of its test, it did not explicitly grapple with step two. Rather, the court gleaned the procedural nature of California’s anti-SLAPP statute from a California Court of Appeals case that said the statute “provid[es] a procedural mechanism” to dismiss “nonmeritorious claims.”
Since there was no majority opinion in Shady Grove, it is reasonable to ask: Are the circuits relying on the correct opinion? While most courts have adopted Justice Stevens’s test in other contexts, most of the courts in this circuit split rely on Justice Scalia’s test. However, Justice Stevens’s test seems precisely to touch on the peculiarity of anti-SLAPP legislation—how “intertwined” the substantive and procedural elements are. Anti-SLAPP laws use procedural mechanisms in order to further their substantive goal of free speech protection. They are inextricably linked. For example, an anti-SLAPP law raising the pleading standard for a motion to strike is designed precisely to filter through plaintiffs with meritorious claims. Substituting it with a 12(b)(6) motion, which requires “enough facts to state a claim to relief that is plausible on its face,” will necessarily allow more claims to survive. Doing so seems to defeat the purpose of anti-SLAPP protections.
La Liberte illuminates several issues surrounding anti-SLAPP litigation. Undeniably, La Liberte and the existing circuit split promote forum shopping and an inequitable administration of the law. Ironically, these are the concerns that Erie and its progeny endeavored to solve. Additionally, this case highlights how the difference between substantive law and procedural rules can be particularly difficult to parse, especially in light of the fractured Supreme Court decision in Shady Grove. As a result of these factors, commentators have renewed calls for Congress to pass a federal anti-SLAPP statute or for the Supreme Court to resolve the circuit split.
But these issues of civil procedure are not the only lesson to draw from this case. The case’s content, too, is instructive. In the era of fake news, clickbait, and the inundation of social media content, it is easy (and perhaps even incentivized) for content creators to release controversial images with the hopes of becoming viral. Political images can spark public discourse but simultaneously ignite public ire. And while caught up in the constant barrage of images and headlines, it is easy to forget that many image captions are unverified or even false. A case like La Liberte reminds us that a single click can carry serious social ramifications for the image’s subject, who suffers the deleterious effects of the fabricated message. It also reminds us of the serious legal ramifications for an image’s poster like dealing with a costly, protracted lawsuit. At once expected and ironic, the target of this suit is a TV anchor, whose visibility perhaps makes her more susceptible to SLAPPs; at the same time, she is someone whom many trust to spread verified truths, underscoring the perniciousness of her spreading an incorrect post.
If Congress proposes federal anti-SLAPP legislation, it should consider a case like La Liberte particularly instructive. As people continue to share images online, facts like La Liberte’s are bound to reoccur. La Liberte intimates how SLAPPs may evolve within the context of the internet, and raises several related, challenging questions: What is the status of public discourse on the internet? Do public figures have more responsibility to be transparent? Should fake news be protected or punished? With these questions at the fore, Congress may consider La Liberte’s place in anti-SLAPP litigation in an effort to balance the free speech rights of an image’s poster, the individual harms to an image’s subject, and the greater social harms of spreading misinformation.
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Lina Dayem is an Articles Editor of The University of Chicago Law Review and a J.D. candidate in the University of Chicago Law School Class of 2022. She received her B.A. in 2013 and M.A. in 2017, both from the University of Chicago.