Last year, we posted that a Georgia federal court held, in a lawsuit against CNN, that Georgia’s anti-SLAPP statute had no application in federal court.  CNN appealed that decision and, last Thursday, the Eleventh Circuit agreed with the trial court and held that Georgia’s anti-SLAPP law does not apply in federal court.  The case is Carbone v. Cable News Network, Inc., Case No. 17-10812 in the Eleventh Circuit Court of Appeals.

The Court’s Decision

The Eleventh Circuit held that, taken together, Federal Rules of Civil Procedure 8, 12, and 56 provide an answer to the question of whether a federal court plaintiff’s “complaint states a claim for relief supported by sufficient evidence to avoid pretrial dismissal.”  According to the Court, while those federal rules answer the question of sufficiency of a plaintiff’s claim by applying a plausibility standard and by requiring the plaintiff to demonstrate a triable issue of fact, the “Georgia anti-SLAPP statute answers the same question by requiring the plaintiff to allege and prove a probability of success on the merits” (emphasis added).  This conflict forms the basis of the Court’s opinion, which holds that the anti-SLAPP law is inapplicable in federal court.

According to the Court’s order:

• Plausibility versus Probability: Rule 8 governs the general rules of pleading and Rule 12 addresses motions to dismiss, which collectively “define the criteria for assessing the sufficiency of a pleading before discovery.”  Whereas the Georgia anti-SLAPP statute requires a plaintiff to show a probability of success on his or her claims prior to discovery, the federal rules merely apply a plausibility standard.
• Genuine Issue Of Material Fact versus Success On The Merits: Rule 56, meanwhile, governs summary judgment, which allows the defendant to test whether the plaintiff’s “claim is supported by sufficient evidence to avoid pretrial dismissal.”  Per the Court, the Georgia anti-SLAPP statute’s evidentiary burden is far more demanding and contemplates a substantive determination of the plaintiff’s probability of prevailing on his or her claims.  Rule 56, meanwhile, does not ask the trial court to weigh the evidence nor to determine the truth of the matter, but only to determine whether there is a genuine issue of material fact for trial.

At bottom, the Eleventh Circuit held that, taken together, Rules 8, 12, and 56 “provide a comprehensive framework governing pretrial dismissal and judgment.”  According to the Court, because the Georgia anti-SLAPP statute seeks to answer the same question as those federal rules, there is a conflict that renders the anti-SLAPP law inapplicable in federal court.

Will The Supreme Court Weigh In?

This decision places the Eleventh Circuit on the side of the D.C. Circuit and squarely at odds with the First, Fifth, and Ninth Circuits, all of which have applied state anti-SLAPP laws in federal court.  Given this split between the circuits, will CNN ask the Supreme Court to weigh in?  We will certainly know soon.

On a related note, only a few days ago we posted about the fact that Donald Trump successfully used Texas’s anti-SLAPP statute against Stormy Daniels in California federal court, netting him nearly $300,000 in attorney’s fees and costs.  Stormy is currently on appeal before the Ninth Circuit and, among other things, she asks the Court to address the question: “Does the Texas Citizens Participation Act (TCPA), the Texas version of the anti-SLAPP, apply in federal court?”  The Ninth Circuit has previously held that California’s anti-SLAPP statute does apply in federal court, as discussed in greater detail here.  See United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999).

In any event, we will continue to provide updates on these types of federal cases applying state anti-SLAPP laws, including both CNN’s and Stormy’s respective appeals.  And of course, we will let you know if and when the Supreme Court decides to weigh in.

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