Arguably the most important developments in the law of defamation over the past quarter century have had nothing to do with the substantive law of defamation: what language counts as defamatory, what level of fault (negligence, actual malice) is necessary to establish liability, who counts as a public or private figure, etc. Rather, the action has been largely in the area of procedure, specifically, the procedures established by various state “anti-SLAPP” (strategic lawsuit against public participation) statutes. Passage of these statues (about half the states now have them in some form) was sparked by concern over abusive defamation and related lawsuits typically brought by corporations to silence individuals who annoyed them. A quintessential SLAPP suit (redundant, I know, but that’s how lawyers say it) might involve a real estate developer suing a pesky individual who was leading public opposition to a proposed project. The developer would sue on some trumped-up defamation theory, and the anti-development activist would likely go away, unable to pay the legal fees to fight even the bogus claim.
Anti-SLAPP statutes, though they vary in scope and detail, generally establish procedures that discourage SLAPP suits from ever getting filed, and help get rid of them quickly and cheaply if they do. In California, for example, when a defendant believes he’s the victim of a SLAPP suit, he can file an early “special motion to strike” the complaint. As soon as the defendant files such a motion, there’s an automatic stay on discovery, and the court is required to schedule a quick hearing. At this stage, the court looks at the complaint and what’s usually a small amount of evidence and determines (1) whether the case is really about free speech in connection with a public issue, and (2) whether the plaintiff has a probability of prevailing. If (1) is true, and (2) is false, then the court is supposed to grant the motion and dismiss the case. And -- and this may be the biggest deterrent to SLAPP suits -- if the defendant wins the motion, the plaintiff must automatically pay all of the defendant’s legal fees. California’s anti-SLAPP statute is an extremely powerful tool for media defense lawyers, and is responsible for one of my prouder moments as an attorney (and definitely my proudest moment involving Jay Leno, human egg donation, prosthetic dog testicles, and allegations of bestiality (or, to be precise, what the San Francisco County Superior Court determined were false allegations that Jay Leno had made allegations of bestiality about the egg donor)).
Another of the procedural weapons for California SLAPP defendants is a provision in the statute that permits a defendant who loses an anti-SLAPP motion in the trial court to appeal immediately, without yet having to litigate the rest of the case. (Under the rule that applies to normal non-SLAPP cases, a defendant who loses a motion to dismiss a case isn’t permitted to appeal until the case is completely finished in the trial court.)
Which brings us to yesterday’s Ninth Circuit opinion in Englert v. MacDonell. The plaintiffs’ “complaint alleged that the six named defendants, all forensic scientists in blood pattern analysis, had falsely denigrated plaintiff’s qualifications in that speciality.” Defendants filed an anti-SLAPP motion in federal district court in Oregon, which has its own anti-SLAPP statute. (For complicated and boring reasons, state anti-SLAPP statutes generally, though not completely, apply in federal court.) The district court denied the motion as to four of the six defendants, who sought an immediate appeal in the Ninth Circuit.
The Ninth Circuit held that it lacked jurisdiction to hear the appeal under the collateral order doctrine, which allows mid-litigation appeals in certain narrow circumstances. The defendants/appellants had relied on a previous Ninth Circuit case called Batzel v. Smith in which the court had agreed to entertain an interlocutory appeal by a California SLAPP defendant who had lost a special motion to strike in the district court. But the Ninth Circuit said that the California defendant could appeal because the California statute evinced the intent of the California legislature to allow SLAPP defendants to avoid trial altogether. The Oregon statute, on the other hand, lacked indicia of such legislative intent. So the upshot is that the remaining defendants in Englert may well win in the end, and they will have a later opportunity to appeal if they lose, but for now they will have to proceed through litigation like any other non-SLAPP defendant.
So my advice to Oregon SLAPP defendants: win in the trial court. Or, failing that, head south on I-5.