A federal court in the Northern District of Georgia recently denied CNN’s motion to strike in a defamation lawsuit, ruling that Georgia’s anti-SLAPP statute has no application in federal court. This places the court on the side of the D.C. Circuit and squarely against the First, Fifth, and Ninth Circuits, which have all applied state anti-SLAPP laws in federal court. CNN has appealed and will ask the Eleventh Circuit to weigh in.
David Carbone is the former CEO of St. Mary’s Medical Center in West Palm Beach, Florida, and he is suing CNN for defamation in Georgia federal court. According to the lawsuit, CNN published twenty-five reports relating to the infant mortality rate for open-heart surgery at St. Mary’s. Carbone alleges that CNN’s reports identified that St. Mary’s mortality rate for such surgeries was three times the national average, but that CNN intentionally manipulated statistics to fabricate its claim. He also alleges that CNN included his name and picture in connection with its reports, thus allegedly making the communications about him (a requirement under Georgia’s defamation law). Carbone states that he was forced to resign because of CNN’s reports and that he has received “multiple vile and hateful telephone calls.” The case is Carbone v. Cable News Network, Inc., Case No. 1:16-cv-01720-ODE in the Northern District of Georgia.
Like many states, Georgia has an anti-SLAPP statute (O.C.G.A. § 9-11-11.1), which applies to suits against “a person or entity arising from an act . . . which could reasonably be construed as an act in furtherance of the person’s or entity’s right of petition or free speech . . . in connection with an issue of public interest or concern.” Under that law, the person or entity being sued can then strike the claim unless the court determines that the nonmoving party has established that there is a probability that it will prevail on the claim.
Carbone raised a number of arguments opposing CNN’s motion. Most notably, however, he argued that the anti-SLAPP law is a procedural device that was inapplicable in federal court. Given the importance of this issue – particularly in the communication, publication, media, and entertainment fields – a number of entities, including the MPAA, filed amicus briefs in favor of CNN’s position.
To SLAPP Or Not To SLAPP
In considering Carbone’s argument, the court looked to Federal Rule of Civil Procedure 12(b), which governs motions to dismiss in federal court. The court determined that the federal statute “answers the question in dispute, namely the necessary pleading standard for the Plaintiff to maintain his case at this stage.” Citing the Supreme Court’s interpretations of Rule 12(b)(6)’s “failure to state a claim upon which relief can be granted” in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the court found that Rule 12(b) “directly conflicts with Georgia’s anti-SLAPP statute” by “essentially creat[ing] a Rule 12(b)(6) ‘plus’ standard for cases with a First Amendment nexus.”
The court reasoned that while Rule 12(b)(6) requires “plausibility” on the face of the complaint, the anti-SLAPP law requires a “probability of prevailing.” “The Supreme Court has been clear that ‘[a]sking for plausib[ility] . . does not impose a probability requirement at the pleading stage’ ‘[a]nd, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that recovery is very remote and unlikely.”’” (Opinion, page 6 (quoting Twombly).) The court thus reasoned that Georgia’s anti-SLAPP law created an additional hurdle for plaintiffs in federal court, and was in conflict and could not co-exist with Rule 12.
The court rejected CNN’s Motion to Strike, finding the anti-SLAPP law inapplicable. It likewise rejected CNN’s Motion to Dismiss, finding that Carbone had met the pleading standard to maintain a claim for defamation. On February 21, CNN appealed the court’s decision to the Eleventh Circuit. As of March 9, the case is stayed pending the outcome of that appeal.
The Current Circuit Split And Newsham
There is circuit split on this issue. The First, Fifth, and Ninth Circuits have all applied state anti-SLAPP laws in federal court, while the D.C. Circuit refused to do so. The Carbone court sided with the latter.
In U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999), the Ninth Circuit found that California’s anti-SLAPP statute applied in federal court. It reasoned that the statute did not “result in a ‘direct collision’ with the Federal Rules” and that the laws “‘could exist side by side … each controlling its own intended sphere of coverage without conflict.’” Id. (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749-750 and 752 (1980)). As the Ninth Circuit explained:
LMSC correctly points out that the Anti–SLAPP statute and the Federal Rules do, in some respects, serve similar purposes, namely the expeditious weeding out of meritless claims before trial. This commonality of purpose, however, does not constitute a “direct collision”—there is no indication that Rules 8, 12, and 56 were intended to “occupy the field” with respect to pretrial procedures aimed at weeding out meritless claims. . . . The Anti–SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules: the protection of “the constitutional rights of freedom of speech and petition for redress of grievances.”
Id. at 972–73. Given the absence of “direct collision” between the laws, the Newsham court made the “‘typical, relatively unguided Erie choice’” and found that the appellant “ha[d] not identified any federal interests that would be undermined by application of the anti-SLAPP provisions urged by the relators here.” Id. at 973 (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). “On the other hand, . . . California has articulated the important, substantive state interests [of protecting the constitutional rights of freedom of speech and petition] furthered by the Anti-SLAPP statute.” Id. The Ninth Circuit thus found that the statute applied in federal court.
Which Way Will The Eleventh Circuit Go?
CNN has appealed the district court’s order, and the Eleventh Circuit will need to decide if it agrees with the D.C. Circuit or the First, Fifth, and Ninth Circuits.
Anti-SLAPP laws are powerful tools for defendants, especially those in the communication, publication, media, and entertainment realms. Not only do they present a way for defendants to attack pleadings early in the case, they do so using the “probability of prevailing” standard and normally permit a successful defendant to recover its attorneys’ fees and costs. See, e.g., Cal. Code Civ. Proc. § 425.16(c)(1); O.C.G.A. 9-11-11.1(b.1). California, like Georgia and many other states, expressly affirms its interest in protecting the constitutional rights of free speech and petition in the text of the anti-SLAPP statute. See Cal. Code Civ. Proc. § 425.16(a); O.C.G.A. 9-11-11.1(a).
The question of whether those laws apply in federal court is therefore a significant one. If, for example, a plaintiff can avoid an anti-SLAPP law by suing in one federal court versus another, that could lead to forum shopping.
Stay tuned for updates.