Nahmod Law

Some Questions

What is a SLAPP lawsuit? What is an anti-SLAPP statute? And what, if anything, does section 1983 have to do with anti-SLAPP statutes?

Some Answers

1.  A SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed to chill the exercise of a defendant’s First Amendment rights in order “to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” John v. Douglas County School Dist., 219 P.3d 1276, 1280 (Nev. 2009).

2.  Nevada enacted an anti-SLAPP statute whose primary purpose was to protect the right to petition government for redress of grievances. The Nevada statute, modeled on California’s anti-SLAPP statute, provided that when a plaintiff brings an action “against a person based on a good faith communication in furtherance of the right to petition,” the defendant may file a special motion to dismiss which is treated procedurally as a motion for summary judgment so that the trial court can dismiss only if there are no genuine issues of material fact in dispute. Also, the moving party bears the initial burden of production and persuasion.

3.   May state courts apply such an anti-SLAPP statute to a section 1983 claim despite possible preemption under the Supremacy Clause? According to the Nevada Supreme Court in John, the answer is yes.

In John, the plaintiff filed a lawsuit in state court alleging federal causes of action, including section 1983 and the First Amendment, against a school district and various officials. After the defendants subsequently discovered that the plaintiff had improperly obtained confidential school records and had engaged in other misconduct with regard to his lawsuit (including the inappropriate use of school surveillance equipment), they filed a motion to dismiss under the Nevada anti-SLAPP statute. Granting the defendants’ motion and dismissing the plaintiff’s lawsuit, the Nevada Supreme Court ruled that the statute was “a neutral and procedural statute that does not undermine any federal interests.”

In rejecting the plaintiff’s argument that federal law preempted the application of the Nevada anti-SLAPP statute to his lawsuit, the Nevada Supreme Court first determined that the statute was not a state sovereign immunity statute: it did not bar all state and federal claims but only non-meritorious ones so as to protect citizens’ free speech rights under the United States and Nevada constitutions.

Next, the Nevada Supreme Court found that the Nevada statute was both  procedural and neutral. It was procedural, not substantive, because it created a special kind of pretrial summary judgment procedure. And it was neutral because it applied to all cases involving good faith communication in connection with the right to petition.

Finally, the Nevada statute did not defeat or frustrate federal interests in this case: plaintiff’s section 1983 claim could not go forward on the First Amendment merits because he had not engaged in protected speech.

In the course of its opinion, the Nevada Supreme Court also declared that the “anti-SLAPP statute can be used by private individuals or a government entity when the private individuals or government entity claim that the communications for which they are being sued were truthful, made without knowledge of falsehood, or regard a matter of reasonable concern to the government entity.”

Note that John dealt with Nevada’s anti-SLAPP statute and state court procedure. Quere: would a federal court apply a state’s anti-SLAPP statute to section 1983 claims?The answer should be NO as to section 1983 claims because of the Supremacy Clause.

But what of state pendent claims in the same litigation? Don’t the Federal Rules of Civil Procedure govern? See my post of April 27, 2011, for a First Circuit case dealing with this question.