FOI Foundation joins media coalition brief on Texas anti-SLAPP law in federal court

Reporters Committee and media coalition argue Texas anti-SLAPP law should apply in federal court

Evan Popp |  September 12, 2018

A Texas law aimed at making it easier to dismiss meritless lawsuits intended to chill speech should apply in federal court, the Reporters Committee for Freedom of the Press and 39 media organizations argued in a friend-of-the-court brief filed last week in the Fifth Circuit Court of Appeals. In the brief filed in Rudkin v. Roger Beasley Imports, Inc., the media coalition urges the federal appeals court to reverse a district court’s ruling and hold that the Texas Citizens Participation Act (TCPA) applies in federal court.

So-called “strategic lawsuits against public participation” — or SLAPP suits — are lawsuits used to silence critical speech about matters of public concern. Those who bring these frivolous suits, often as defamation claims, are not typically trying to win the case, but rather aim to intimidate and quiet their opponents by saddling them with exorbitant legal fees. Anti-SLAPP laws like the TCPA are in place in 32 states and the District of Columbia, but not at the federal level, and generally allow defendants to seek a quick dismissal of meritless SLAPP cases. The laws also typically allow defendants to collect attorney’s fees, providing a disincentive for filing SLAPP suits.

Since the TCPA’s enactment in 2011, Texas media outlets have used the law to obtain the early dismissal of SLAPPs brought against them. For example, as the Reporters Committee notes in its brief, the Texas television station KBMT successfully used the TCPA to defend itself against a pediatrician’s defamation claim after the station’s report was shown to be “substantially true.”

In its brief, the Reporters Committee argues that the TCPA should apply in federal court because “the application of state anti-SLAPP statutes in federal courts fosters and protects the exercise of First Amendment freedoms, including by members of the news media.” According to the brief, without the benefit of having the same protection in federal court as they do in state court, “many journalists and news organizations may choose to remain silent rather than run the risk of protracted federal court litigation.”

When a state claim, such as defamation or invasion of privacy, is brought in federal court, state laws apply if they don’t conflict with federal rules and are deemed substantive rather than procedural, the brief notes. The Reporters Committee argues that the TCPA doesn’t “directly collide with federal rules” and instead complements them in a way that “ensure[s] that Texas citizens can fully exercise their First Amendment rights without fear.”

In addition, the brief explains that the protections the TCPA provides should be considered substantive because not enforcing such statutes in federal courts would encourage “forum shopping,” in which plaintiffs intentionally attempt to file SLAPP suits in federal courts.

The Fifth Circuit is also considering whether the TCPA applies in federal court in another case, Klocke v. Watson (No. 17-11320). The court heard oral arguments in that case last week.

Other appeals courts, including the First and Ninth Circuits, have found that other state anti-SLAPP laws apply to state claims in federal court, while the Tenth and D.C. Circuits have found that these types of statutes do not apply. The Supreme Court is currently considering whether to hear a case, AmeriCulture Inc. v. Los Lobos Renewable Power, LLC, that would bring the issue before that court for the first time.

The full media coalition brief filed in Rudkin v. Roger Beasley Imports, Inc., which was written by the Reporters Committee and filed by Vinson & Elkins LLP, is available here.