The Last Lecture: State Anti-SLAPP Statutes and the Federal Courts

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An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of certain kinds of libel litigation and other speech-restrictive litigation.” The most stringent anti-SLAPP statutes serve strong measures to accomplish their goals: an accelerated dismissal procedure soon after suit is filed; a complete stay of discovery; the plaintiff must, at the pleading stage, come forward with evidence to establish her prima facie trial burden; mandatory attorney’s fees and costs to the prevailing defendant; and an immediate appeal if the trial court denies the dismissal motion.