A recent California Court of Appeals opinion contained this provocative introduction:
In 2004, the Morgan Hill City Council adopted a resolution that condemned Bruce Tichinin, a local attorney, for hiring a private investigator to conduct surveillance of the city manager and then denying that he had done so. Thereafter, Tichinin filed an action against the City under 42 United States Code section 1983 (hereafter "1983 action") alleging that the City unlawfully retaliated against him for exercising his constitutional rights. The City answered and then filed an anti-SLAPP motion under Code of Civil Procedure section 425.16 to strike the action.1 (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117-1118 [§ 425.16 applies to federal claims under § 1983]; accord, Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1392, fn. 4.)Tichinin v. City of Morgan Hill (Cal. Ct. App. Sep. 22, 2009) (here).
California’s anti-SLAPP statute is a creation of state law. "SLAPP is an acronym for strategic lawsuit against public participation....Code of Civil Procedure section 425.16 is called the anti-SLAPP statute and allows a defendant to gain early dismissal of SLAPP actions designed primarily to chill the exercise of First Amendment rights." Slip op. at *1, fn. 1.
A Section 1983 action is a creation of federal law. In Tichinin, the plaintiff alleged that the City Council retaliated against him after he exercised his federal First Amendment right. (He complained about city conduct as a city council meeting.) Tichinin's claim was a basic retaliation action under the First Amendment, and thus would have been analyzed under federal law.
Nevertheless, the trial court dismissed Tichinin's case under California’s anti-SLAPP statute. The Court of Appeals suggested that dismissal would have been proper had the case facts been different. In Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses, the author notes that a California Court of Appeal applied California’s anti-SLAPP statute to a Section 1983 claim. Id. at § 12.08, 12-125 n.576 (2006). That seems strange.
Doesn’t dismissing a federal cause of action based on a state law affirmative defense turn turn preemption its head? A Section 1983 lawsuit is based on the violation of federal constitutional rights. A state’s anti-SLAPP statute is not part of federal constitutional law. Rather, it’s an affirmative defense and fee-shifting statue - entirely a creation of state statutory law.
Thus, what relevance does state law have on a federal common law claim for a violation of the First Amendment? I've never thought about this issue before, so perhaps I am missing something huge.
I hope to look into these issues soon. In the meantime, feel free to educate me in the comments; or via e-mail.