The D.C. Circuit holds that D.C.’s anti-SLAPP law conflicts with the Federal Rules

Abbas v. Foreign Policy Grp., LLC, No. 13-7171 (D.C. Cir. Apr. 24, 2015).

Yasser Abbas, Mahmoud Abbas’s son, sued the publisher of the magazine FP for defamation. In response, the publisher moved to dismiss the suit under D.C.’s anti-SLAPP law. That law, like many anti-SLAPP laws, applies to lawsuits arising from speech on issues of public interest. If a defamation plaintiff suing over that kind of speech can’t show a likelihood of success on the merits, D.C.’s anti-SLAPP law requires dismissal on the pleadings. Nobody seems to dispute that the speech here concerned issues of public interest—so D.C.’s anti-SLAPP law would normally require Abbas to show a likelihood of success on the merits. 

As the D.C. Circuit notes, though, the anti-SLAPP provision requiring early dismissal conflicts with Federal Rules of Civil Procedure 12(b)(6) and 56. Any other conclusion effectively ignores what D.C.’s anti-SLAPP law requires. That law requires not merely a facially plausible claim (Rule 12(b)(6)) or a genuine issue of material fact (Rule 56), but a showing that the plaintiff will probably succeed on the merits. 

Because the Federal Rules of Civil Procedure conflict with D.C.’s anti-SLAPP law, and because this case is proceeding in federal court, the Rules trump D.C.’s law. This conclusion, as the D.C. Circuit notes, conflicts with opinions from the First, Fifth, and Ninth Circuits, but the D.C. Circuit (I think properly) finds those opinions unpersuasive. 

While the panel goes on to affirm the district court’s dismissal of Abbass case on other grounds, this is an important decision, and one that seems to create a circuit split. It’s unclear whether this case is an ideal vehicle for Supreme Court review. It is clear that at some point the Supreme Court will have to address how state anti-SLAPP laws interact with the Federal Rules of Civil Procedure.