Second Circuit holds that California’s anti-SLAPP statute does not apply in federal court because it conflicts with Federal Rules of Civil Procedure 12(b)(6) and 56, joining Fifth, Eleventh and D.C. Circuits, and departing from First and Ninth Circuits.
In late June and early July 2018, MSNBC media personality Joy Reid posted a photograph of Roslyn La Liberte to her Instagram and Facebook pages accompanied by captions that Reid authored. The photograph was taken at a Simi Valley city council meeting where La Liberte spoke in opposition to California’s sanctuary-state law and depicted La Liberte with an open mouth and her hands clasped around her throat, seemingly engaged in a heated exchange with a Hispanic teenager. The image was posted to Twitter by a social media activist on June 29, prompting it to go viral. Later that same day, Reid posted the photograph to her Instagram account with the following caption:
He showed up to a rally to defend immigrants . . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.
Meanwhile, the teenager depicted in the photograph stated in an interview with Fox 11 Los Angeles that La Liberte had not yelled any racial slurs at him and that their discussion was “civil.”
Two days later, on July 1, Reid published another post about La Liberte, this time on Instagram and Facebook. The post juxtaposed the same photograph of La Liberte and the Hispanic teenager with a 1957 photograph of a white woman screaming at one of the Little Rock Nine. Reid included the following caption with her post:
It was inevitable that this [juxtaposition] would be made. It’s also easy to look at old black and white photos and think: I can’t believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove
As a result of the posts, La Liberte received hate mail that included threats of physical harm and recommendations that she commit suicide. A lawyer for La Liberte contacted Reid, who ultimately removed her posts and apologized.
La Liberte later sued Reid for defamation in the U.S. District Court for the Eastern District of New York, claiming that Reid’s posts falsely accused her of yelling racist slurs at the teenager in the photograph. Applying California law by agreement of the parties, the district court dismissed the claim under Federal Rule of Civil Procedure 12(b)(6) and “struck” it under California’s anti-SLAPP statute, granting Reid leave to seek attorneys’ fees pursuant to that statute. The court held that La Liberte was a limited purpose public figure in the California sanctuary-state controversy and dismissed her claim as to the June 29 post for failure to plead actual malice. The court further characterized Reid’s July 1 post as expressing a nonactionable opinion. Finally, the court concluded that Reid did not qualify for immunity under Section 230 of the Communications Decency Act.
La Liberte appealed, and the Second Circuit vacated the judgment and remanded for further proceedings. The court held, as a matter of first impression within the circuit, that California’s anti-SLAPP statute is not applicable in federal court because it conflicts with Federal Rules of Civil Procedure 12(b)(6) and 56. The court explained that when the Federal Rules conflict with other procedural statutes that answer “the same question,” the Federal Rules control unless they violate the Rules Enabling Act—which, the court held, Rule 12 and Rule 56 do not. The court opined that both the anti-SLAPP statute and the Federal Rules answer the same question—the circumstances under which a claim may be dismissed before trial—but conflict because they apply different standards. In particular, the anti-SLAPP statute’s requirement that a plaintiff establish a “probability” of prevailing on the merits, the court held, imposes a more stringent standard than do Rule 12(b)(6), which requires a plaintiff to state a claim to relief that is plausible on its face, and Rule 56, which permits a plaintiff to proceed to trial by identifying any genuine dispute of material fact. In so holding, the Second Circuit joined the Fifth, Eleventh and D.C. Circuits, which have issued similar rulings regarding other state anti-SLAPP statutes, and departed from the First and Ninth Circuits.
The court rejected the notion that the anti-SLAPP statute “serves the entirely distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech” and that it “supplements rather than conflicts with the Federal Rules.” The idea that the more stringent anti-SLAPP standard is a beneficial “supplement” to the Federal Rules, the court held, “is a policy argument—and fatal, because the more permissive standards of the Federal Rules likewise reflect policy judgments as to what is sufficient.” Although the court recognized that its holding may encourage forum shopping, as it stated, “the incentive to forum-shop created by a circuit split can be fixed, though not here.”
As to the other issues raised on appeal, the Second Circuit agreed with the district court that Reid was not entitled to immunity from suit pursuant to Section 230 of the Communications Decency Act. That section provides immunity where (1) the defendant is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat the defendant as the publisher or speaker of that information. Here, the court held, Reid herself had authored the content that accompanied the photograph of La Liberte and did not merely republish the photograph from another “information content provider.” The court made clear, however, that it was not opining on whether Section 230 immunity applied to “a social media user who copies verbatim (and without attribution) another user’s post, a question that may be complicated by issues as to malice and status as a public figure.”
Finally, the Second Circuit held that the district court erred in dismissing La Liberte’s claim pursuant to Rule 12(b)(6). With respect to Reid’s June 29 post, the court held that La Liberte was not a limited purpose public figure because she did not “voluntarily inject” herself into the California sanctuary-state controversy through maintenance of “regular and continuing access to the media.” La Liberte’s participation in city council meetings had not been covered by the media until after the allegedly defamatory posts were published by Reid. This, the court held, was not sufficient to render La Liberte a public figure because to hold otherwise would chill public participation in politics and community dialogue. Because La Liberte did not need to plead that Reid acted with actual malice, and had otherwise sufficiently pled defamation in connection with the June 29 post, the Second Circuit revived this aspect of her claim.
As for Reid’s July 1 post, the court held that a reader could have understood the post as equating La Liberte’s conduct with “archetypal racist conduct.” Rather than label La Liberte racist in an abstract sense, which would constitute a nonactionable opinion, Reid asserted that La Liberte had verbally assaulted a minority child due to racial animus, which could be understood as an “accusation of concrete, wrongful conduct” that can be proved to be either true or false.
Summary prepared by Frank D’Angelo and Sarah Levitan Perry