Inverse Preemption: Does California's anti-SLAPP Statute Preempt Section 1983?

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.



2:31 PM

I think you are misclassifying this as preemption -- at least in the legal, as opposed to loose colloquial, sense.

Tichinin sued in state court. The state court applied a state procedural statute. The anti-SLAPP statute does not create new substantive privileges: it creates a new procedure (an additional type of motion to dismiss, with different rules than the normal motion) and a different rule of fee recovery (prevailing party on a motion entitled to fees.)

It does not itself purport to change the scope of First Amendment protections. It simply applies them through this procedural prism. Defendants could assert exactly the same defense at trial, or through a motion for summary judgment.


2:33 PM

And by the way -- the Plaintiff is an insufferable whiny douche for asserting that a government entity violated his right to free speech just by criticizing him. I've always thought that the cases suggesting that criticism could violate a person's rights -- even criticism by the government -- were ridiculous and wrongly decided.


2:59 PM

it creates a new procedure

That's the interesting issue. In some jurisdictions, they're treating anti-SLAPP statutes are substantive rules. In California, however, it's treated as a procedural rule:

Incidentally, even when litigating in state court, I think the anti-SLAPP statute raises some interesting issues. This post from Sheldon Nahmod helps illustrate why:

The legal issue - at least on a nationwide basis - is a really messy area. Alas, it'd take me several hours to do a serviceable post on it.

Incidentally, in the cases I've seen (admittedly few): If you file a Section 1983 action in federal court, the defendant can't raise an anti-SLAPP defense. I've only seen a couple of District Court cases, though.

Thus, you have different rules of "procedure" in the same state. Not just basic rules of filing deadlines and discovery. But, rather, "procedure" that is outcome determinative. (I'm using scare quotes because California's anti-SLAPP statute is so strong that it seems to be more than an ordinary procedural rule.)

Given that Section 1983 actions can be filed in either state or federal court, it seems unusual that the choice of forum would be outcome determinative. Given that California's law is outcome determinative, should we really treat is as a mere rule of procedure?


3:15 PM

Sure. But the issue of the applicability of SLAPP in federal court and the issue of whether it can be said to "preempt" 1983 are entirely different issues.

Here is a good case explaining the state of the law on application of SLAPP in federal court in the 9th circuit, noting differences between pure federal question cases, diversity cases, and federal question cases with pendant state claims:

In short, you might be able to apply SLAPP to pendant state claims that accompany the 1983.

I don't see the parallel to Haywood v. Drown at all. California courts are not refusing to hear 1983 suits. They aren't even refusing to hear 1983 cases implicating First Amendment rights. They are simply providing an early procedural vehicle to assert First Amendment rights.

Imagine this:

1. First, imagine that the defendant asserted the First Amendment or litigation privilege at summary judgment. Would the Supremacy Clause require the state court to ignore that defense? What about at trial?

2. Now imagine that the state had a rule that said that a party claiming any constitutional or statutory right or privilege -- not just free speech ones -- could make such a motion in any case. Would application of that general rule to a 1983 violate the concept of supremacy?

What I'm getting at is that I don't see how it matters that it is "outcome determinative." The vehicle of a motion to dismiss is outcome determinative, as is JNOV or MSJ. SLAPP is outcome determinative in that sense, but not in the sense that it creates new substantive privileges.

Even if it did, would that matter? Say that City X writes, in its motion to dismiss a case, that plaintiff is an asshat. Plaintiff sues City under 1983 in state court, saying that being called an asshat in a legal brief filed in court by City X violated his due process rights by harming his reputation. City X files a demurrer, saying that the conduct complained of in the complaint, on its face, is protected by California's litigation privilege, which generally says that you can't sue people for what they say in court filings, except in malicious prosecution suits.

Is it your position that it would offend supremacy to apply California's litigation privilege? If not, how is that different than SLAPP?


3:53 PM

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3:54 PM

Thanks for the comments. I'll read the case. Here is why I see the issue as being messy:

1. Many states have a requirement that procedural remedies be exhausted before a lawsuit against a state actor may be filed.
2. On one hand, such an exhaustion requirement is merely a procedural rule. It simply says you must follow certain procedures before you sue. It does not affect substantive rights.
3. The Supreme Court struck down state exhaustion requirements. Patsy v. Board of Regents.
4. States then said, "Patsy only applies in federal court. In state court, exhaustion still applies."
5. In Felder v. Casey, the Supreme Court said, "Nope. The no-exhaustion rule also applies in actions brought in state court."

With California's anti-SLAPP statute, it is really just a procedural rule that allows one to affirmatively - and early on - assert a defense that would have allowed the same party to escape liability had the case gone to a jury?

Here is what I envision, and the answer to this question would resolve the issue: Is there a case where a court would have denied a 12(b)(6) motion to dismiss in federal court; but would have granted an anti-SLAPP suit in state court?

If an anti-SLAPP motion, in practical application, is no different than a Rule 12(b)(6) motion...Then there's no Felder issue. The anti-SLAPP law simply gives a party the right to attorneys fees.

If the anti-SLAPP statute gives a stronger defense than one would have under common law (and thus the suit would not be dismissed under Rule 12), then there might be a Felder issue.


4:48 PM

Hmm. At least one California court found that Felder v. Casey was distinguishable.

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"A plaintiff's burden to show a probability of prevailing in opposition to a special motion to strike is not so onerous that meritorious actions that would succeed in federal court "frequently and predictably" (Felder v. Casey, supra, 487 U.S. at p. 138) would be thwarted in state court. Rather, the plaintiff's burden in opposing a special motion to strike is similar to the burden in opposing a summary judgment motion (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 654; see College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at pp. 716, 719-720 & fn. 6), which is available in both state and federal courts. Although discovery is stayed upon filing a special motion to strike, the court may allow specified discovery to proceed if good cause is shown (Code Civ. Proc., § 425.16, subd. (g)), which preserves the opportunity to obtain evidence needed to oppose the motion. *fn2 (Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 37 Cal.App.4th at pp. 867-868.)"

Seems right to me. In California anti-SLAPP motions, the plaintiff can defeat the motion by offering ANY evidence which, if accepted, would defeat the First Amendment or statutory privilege asserted -- for instance, any evidence which if accepted would show that a statement about a public figure was knowingly false and defamatory. The court doesn't weigh evidence. Therefore it's not likely to produce different results if the cases are taken as a whole -- only quicker results.

I now see that courts also refer to what you are talking about as preemption, though. I still think that is an odd use of the term.


5:51 PM

I'll check out the case. Thanks.

Yes, preemption is an odd word. That's why I struggled with deciding whether to entitle the post, "reverse," "inverse," or "converse" preemption.

Sure, by definition, a state can't preempt a federal law. Only a higher can preempt a lower. Not sure what else you'd call it, though, when a state enacts a law that "[verb]" a federal law.


6:31 PM

I'm reading up on the anti-SLAPP statute, which has been a goal for a while.

At least part of the anti-SLAPP statute is invalid under Felder. The anti-SLAPP statue provides a defense where conduct is undertaken "in furtherance of the person's rights of petition or free speech under the United States or California Constitution in connection with a public issue []." Id. § 425.16(b) (emphasis added).

An anti-SLAPP motion brought under California law would be invalid under Felder: "Accordingly, we have held that a state law that immunizes government conduct otherwise subject to suit under 1983 is pre-empted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy." Felder v. Casey , 487 U.S. 131, 139.

Essentially, that provision of the anti-SLAPP statute would immunize conduct that would not be protected under state law.


7:12 PM

Okay. But in that circumstance it seems that it is misleading to say that it is SLAPP that is preeempted. Because isn't it really the underlying substantive right that is preempted?

Say that the California constitution gives a free speech right that the First Amendment does not. (And it does -- a stupid right inconsistent with other rights, but a recognized right. See Pruneyard.) Say you somehow construct a scenario where plaintiff claims that defendant's conduct violated plaintiff's First Amendment rights, and defendant claims the cited violating conduct is protected by the California Constitution. You could say that federal law preempts SLAPP. But when you hit the summary judgment stage, and the jury instruction stage, and the JNOV stage, you have the same problem. So isn't it really that federal law preempts the underlying substantive law, not SLAPP?

I suppose the litigation privilege example I cite above has a possible example. Say Mike is Mayor of City X and Ken is a gadfly critic. In the course of Ken's lawsuit against City X for being excluded from meetings, Mike causes City X's lawyers to file a brief containing the knowingly false sentence "Ken is a convicted child molester." Ken sues City X for this new defamation under 1983, saying that the City's attack on his reputation in retaliation for his speech violated his First Amendment rights.. The City files a SLAPP motion, pointing out that California's litigation privilege renders the statement absolutely privileged. Assume for the sake of argument there is no federal common-law litigation privilege. (That's not clear, and I'm too lazy to research thoroughly). I guess you could then argue that 1983 preempts the state litigation privilege. I think it would be more accurate to say that it preempts the privilege rather than say it preempts SLAPP -- or a plain-vanilla demurrer, for that matter.

The irritating result could be cured if those few courts would just retreat from the dumb-ass rule that speech can violate 1983.


7:28 PM

Assume for the sake of argument there is no federal common-law litigation privilege.

Yeah, but that's sort of the problem. Most of the time, the same privileges will apply. BTW, the mayor would be entitled to an absolute privilege - he'd get legislative privilege.

So there just aren't a lot of good analogies we can make; since it's so unusual for there to be a state-federal conflict.

Theses issue were big in the exhaustion/notice-of-claim days. Those days are long past, though. What we're discussing is an odd duck. Even finding an analogy is hard.

The irritating result could be cured if those few courts would just retreat from the dumb-ass rule that speech can violate 1983.

True. This is mostly an academic discussion. I've never seen it come up precisely because it doesn't come up. I'm trying to think of a case where you'd be held liable for engaging in protected speed...drawing a blank.

Beats watching "Dancing With The Stars," anyway.


7:56 PM

I guess you could then argue that 1983 preempts the state litigation privilege. I think it would be more accurate to say that it preempts the privilege rather than say it preempts SLAPP -- or a plain-vanilla demurrer, for that matter.

Probably, though, you could just say this: "State privileges, unlike other rules of procedure, aren't incorporated in Section 1983. Thus, they are irrelevant." IOW, you'd substitute "preempted" for "irrelevant."

The reason this is maddening stuff is because Section 1983 is a bare statute. So the federal courts took some stuff from state common law (privileges, e.g.,), but made it into genuine federal common law. Thus, states cannot enact positive law that trumps federal common law.

Which, analytically, is interesting. If these common law immunities come from common law...and if states can do away with common law vis-a-vis positive...Can't they create more immunities? With 1983, even though the immunities were borrowed from common law (often state common law), only Congress can add or subtracts from them.

Now, here's what makes the initial issue I posted on interesting.

Federal courts do adopt the rules of procedure of the courts wherein the sit. Thus, if the statute of limitations in California for personal injury actions if 3 years, then you get 3 years to file a 1983 suit in California. This is the case even if the statute of limitations in another state is 5 years.

Should federal courts sitting in California, then, adopt California's anti-SLAPP law? If it's just a procedural rule...Then why not?


10:46 AM

Any investigation into Allison Sievers of the law firm, Lavely and Singer, will uncover severe abuses of the Anti Slapp statutes in the Santa Monica courthouse. Very curiously, she won against a meritorious defamation claim by a pro per and charged less than 5k when awarded fees.