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Safeguarding Freedom of Speech: The Case for a Federal Anti-SLAPP Law

The Anti-SLAPP law is a legislative measure created in order to protect organizations and individuals from Strategic Lawsuits Against Public Participation (SLAPP). These lawsuits are usually instigated by influential corporations or public figures with the intent of intimidating and silencing their critics. The Anti-SLAPP law is crucial in protecting freedom of speech and offering legal support to those confronted with SLAPP lawsuits. Its implementation aims to eradicate the stifling of free speech and the coercion faced by less powerful entities through legal action. This law acts as an essential safeguard, upholding the fundamental right to express opinions, fostering transparency and accountability and facilitating active engagement in public discourse.


However, the Anti-SLAPP law has become a subject of disagreement among federal circuit courts, leading to conflicting rulings on the same issue. For instance, in the case of Klocke v.Watson, 936 F.3d 240 (5th Cir. 2019): a case involving a student at the University of Texas at Arlington who committed suicide in June 2016 after not being allowed to graduate. Allegedly the student was not allowed to graduate as he was charged with homophobic harassment against Watson, his peer. The student's father, Klocke, sued the school for Title IX violations and Watson for common law defamation. Watson then motioned for a dismissal of the claim on the basis of the Texas Citizens Participation ACT (TCPA), a type of anti-SLAPP law. Klocke then asserted that the TCPA claim is inaccessible in federal court and did not substantially address Watson’s argument. This objection also observed that the Fifth Circuit had not held that the TCPA could be applied in federal court. While the court ruled in Watson's favor to dismiss the matter as it was applicable and substantial, the Fifth Circuit held that Texas’s anti-SLAPP law does not have jurisdiction in federal court. This ruling exacerbated the divide as it contradicted the Ninth Circuit and others that applied anti-SLAPP laws in federal court. Moreover, there are differing opinions among federal circuit courts regarding the application of anti-SLAPP laws in federal court under the Erie Doctrine. The case of Klocke v. Watson not only demonstrates the conflicting arguments regarding the anti-SLAPP law but also demonstrates the various ways the anti-SLAPP law can be utilized. Klocke v. Watson


The Erie Doctrine is a legal principle that determines the application of federal and state law in US federal courts. It emerged from the 1938 Supreme Court case, Erie Railroad Co. v. Tompkins. Prior to this case, federal courts applied their own rules of decision when dealing with cases involving parties from different states. Following the Supreme Court ruling, federal courts are now compelled to adhere to state law and refrain from creating rules that deviate from the laws of the respective state where they are situated. As per Erie Doctrine rules, anti-SLAPP laws can only apply in federal court if they possess substantive qualities, establish principle, and do not conflict with federal regulations.


Although federal courts have historically applied state anti-SLAPP laws in accordance with the Erie Doctrine, a recent inclination has emerged towards the rejection of the anti-SLAPP laws in federal court. This trend can be evidenced by two more recent cases, Klocke v. Watson (2019) explained above, and Ctr. for Med. Progress V. Planned Parenthood Fed’n of Am., 139 S. CT 1446 (2019), a case in which the plaintiff argued that the defendants planned to damage Planned Parenthood by infiltrating it under false identities, recording conversations, and videotaping individuals with the hope of Planned Parenthood and individuals involved making damaging statements. In this case, conflicting arguments including, the extent to which Planned Parenthood was damaged, and the scope of the claims, complicate this case. However, the anti-SLAPP law was deemed unusable in this instance as well. Both cases successfully disputed grounds for the use of the law because the anti-SLAPP law’s procedural regulations conflict with federal procedural rules, therefore the law cannot apply in federal court. The ruling in both these cases may foreshadow the future of the anti-SLAPP law and underscores the imperative need for a federal anti-SLAPP law.


A federal anti-SLAPP law would empower individuals to invoke its provisions and safeguard freedom of speech and expression for individuals and organizations with limited power. It would facilitate the swift dismissal of SLAPP lawsuits, which are often employed to intimidate smaller entities and, as a result, lack substantial merit. SLAPP lawsuits can also pose a significant burden for defendants, by draining their resources and discouraging them from mounting a defense. By providing legal assistance, an anti-SLAPP law would ensure that defendants are not deterred from fighting back. Ultimately, a federal anti-SLAPP law would establish uniformity in court decisions and preserve an open and democratic society that fosters free discourse and encourages active public engagement, free from the fear of intimidation or suppression. Ant



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