The U.S. Fifth Circuit Court of Appeals Friday settled the long-lingering question as to whether Texas Anti-SLAPP rules and procedures can be applied in federal court.
Answer: They can’t.
In a 13-page opinion written by Judge Edith Jones, a unanimous three-judge panel said federal rules and procedures were substantively incompatible with key provisions and standards of the Texas statute, known as the Texas Citizens Participation Act.
The ruling reverses a lower court decision that allowed an anti-SLAPP defense to prevail in a case involving a University of Texas at Arlington student, Thomas Klocke, who committed suicide after being refused graduation because of an allegation of homophobic harassment. The student’s family sued in federal court, charging the university with a Title IX violation and the student who made the allegation, Nicholas Watson, with defamation.
When Watson moved to dismiss the defamation claims under the TCPA, the Klocke family asserted that the Texas Anti-SLAPP statute had no applicability in federal court. In doing so, the Klockes’ response failed to address Watson’s specific arguments as required under the TCPA. The district court overruled Klocke’s challenge as untimely, dismissed the allegations against Watson and later awarded Watson $25,000 in attorney’s fees, $3,000 in expenses, along with a $1 sanction – all of which was allowable under the TCPA.
In her opinion for the court of appeals, Jones acknowledges that under the Erie RR v. Tompkins line of precedents, state law would apply to substantive issues in federal diversity cases. But the key elements of the TCPA – expedited appeal, stays of discovery and aggressive timelines – are procedural, Jones notes. And in cases of diversity jurisdiction, like the Klocke case, state procedures yield to federal rules.
Moreover, the TCPA’s burden-shifting framework is incompatible with federal standards for dismissal, according to Friday’s opinion. Under the TCPA, state courts are required to dismiss a case if it is shown – “by a preponderance of the evidence” – that the action is based on an exercise of protected speech. A plaintiff, on the other hand, can overcome that burden by establishing for each claim “clear and specific evidence” of a prima facie case.
In federal cases, however, a motion for summary judgment can be resisted at a much lower threshold: by showing that there exists a material issue of fact that needs to be resolved at trial.
Kenneth Chaiken, who argued the case for the Klockes, said he was gratified to have the case against Watson reinstated, but that he is awaiting yet another Fifth Circuit ruling on the status of his case against UT Arlington, which was also dismissed by the lower court. Moreover, Watson’s side may yet choose to reiterate its case before the en banc court.
“We’re glad that our clients are going to have their day in court,” Chaiken said. “But I have no idea whether (Watson) will be seeking further relief (on appeal).”
Reaction by media attorneys was ambivalent: pleased that the issue had been directly addressed but anxious about the consequences. In fact, the ruling comes just days before significant new changes in the TCPA take effect on cases filed after September 1.
“It really does establish two different scenarios and timetables for responding to defamation claims,” said Tom Leatherbury, a partner at Vinson & Elkins in Dallas. “But at least there will now be consistency (at the trial court level).”
Paul Watler, a partner in the media practice at Jackson Walker, said he wasn’t surprised by the decision. “The Fifth Circuit had been telegraphing this decision for some time, but they never seemed to have the right case to do so.”
David Coale, a partner at Lynn Pinker Cox and Hurst agrees, and doesn’t think the change will be remarkable. “State-court defamation litigation will proceed under different rules than federal-court defamation litigation,” Coale said. “(It’s) not that unusual really; that happens in our federalist system.”
Jason Bloom, who practices media law at Haynes and Boone, said he wasn’t certain how the case would affect defendants going forward. Until Friday’s decision, the use of TCPA varied from judge to judge and court to court, he said, which made it an uncertain defense in business disparagement or defamation cases.
“TCPA was a pretty good arrow to have in your quiver. I would wonder how it will affect decisions to remove cases from state to federal court. A lot of defendants will probably be advised not to file for removal since TCPA is no longer available in federal court,” Bloom said.
The application of the TCPA has been an issue in Texas federal courts for at least the last three years. However, before the Klocke appeal, no case had offered the same clear choice between the controversial state anti-SLAPP statute and federal procedure. And Jones said Watson’s reliance on the commendable purpose of the TCPA was unconvincing, particularly under rules that are alien to the federal process.
“Describing the rights afforded certain litigants under the TCPA as ‘substantive’ fails to address the uncertainty caused by the state statute’s ongoing conflict with federal rules,” Jones wrote. “We do not disregard the statute’s expressed purpose to safeguard the exercise of protected First Amendment rights by expediting such cases to conclusion.”
“It was absolutely the right decision by the Fifth Circuit,” said Dykema’s Christopher Kratovil, who once clerked for Judge Jones. “TCPA changes fundamentally the procedure at the outset of the lawsuit with a dismissal mechanism that doesn’t exist at the federal level.”
“What surprises me is that it took so long to get a ruling,” Kratovil said.