California’s anti-SLAPP law, which provides an effective shield to media organizations sued for libel, invasion of privacy and the like, could soon be a lot less effective if Ninth Circuit Chief Judge Alex Kozinski, ordinarily a strong advocate for First Amendment protections, has his way.
In a concurring opinion to a recent decision, Judge Kozinski argued that the appeals court had made a “big mistake” by ruling fourteen years ago that the anti-SLAPP law, with its potent pro-defendant procedures, should apply to cases in federal court. He urged the entire Ninth Circuit to reconsider the issue and confine the anti-SLAPP law to litigation in state court.
If that were to happen, plaintiffs in cases potentially subject to the anti-SLAPP law– which covers suits implicating a defendant’s freedom of speech and right to petition government–would file suit in federal court, instead of state court (provided they can meet the requirements for federal jurisdiction). Since defendants have no right to remove a case from federal to state court, the plaintiff’s filing in federal court would effectively preempt all anti-SLAPP defenses.
How likely is Kozinski to have his way on this? Because of his stature on the appeals court, his credibility on First Amendment issues and his intellectual horsepower–I’d say he is likely to prevail. However, he’s mistaken on this issue, in my opinion. I’ll explain in a future post.
Kozinski’s concurrence is found (after the majority opinion) in Makaeff v. Trump University, decided April 22. — PETER SCHEER