cnnAs the Internet increasingly has become the dominant means of conveying both facts and opinions, the number of defamation and other speech-related lawsuits filed in state and federal courts has risen markedly. Responding to what some lawmakers characterize as “strategic lawsuits against public participation” (SLAPP)—suits aimed at suppressing legitimate speech or public debate through imposing the financial burdens of litigation—many states have enacted so-called anti-SLAPP statutes. One characteristic feature of all anti-SLAPP statutes is that they provide an expedited mechanism whereby a defendant can have a qualifying SLAPP suit dismissed quickly.

In the typical case, all discovery is automatically stayed in the case upon the defendant’s filing of an anti-SLAPP motion, and the trial court must hold a hearing on the motion within 30 days. The defendant bears the initial burden of demonstrating that the claims “arise from” conduct in furtherance of the defendant’s right of petition or free speech. Once the defendant makes that initial showing, the burden then shifts to the plaintiff to demonstrate a probability of success on the merits. If the plaintiff cannot meet that burden, the suit must be dismissed and the prevailing defendant’s attorney is entitled to fees and costs.

But this procedure creates a quandary. Whereas the anti-SLAPP statute requires a plaintiff to show a “probability” of success to survive dismissal, Rules 8 and 12 of the Federal Rules of Civil Procedure, as construed by the US Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, require that a plaintiff demonstrate only a “plausible” claim for relief to survive dismissal. The Supreme Court has clarified that this “plausibility” standard is “not akin to a ‘probability requirement.’” Which dismissal standard should govern in federal court then: the one provided by the federal rules or the one provided by the anti-SLAPP statute?

A recent decision out of the Northern District of Georgia illustrates the inherent tension that arises when the protections afforded by anti-SLAPP motions are invoked by defendants in federal diversity actions. Every first-year law student knows that the Erie doctrine requires that federal courts must apply state law to substantive legal questions in diversity cases. But on procedural questions, whenever state law directly conflicts with one of the Federal Rules of Civil Procedure, the federal rule applies so long as it complies with the Rules Enabling Act—i.e., if it really regulates procedure and does not abridge a substantive right. So is the heightened pleading threshold imposed on complaints by anti-SLAPP laws procedural or substantive?

In Davide Carbone v. Cable News Network, a defamation lawsuit brought by a former hospital executive who was forced to resign after CNN reported that the infant mortality rate for open-heart surgery at his hospital was three times the national average, US District Judge Orinda Evans concluded that the federal rules govern in federal court. She held that the standard for dismissal embodied in the federal rules “relate only to how a litigant may bring his claims to court and bear not at all on the substance of those rights or their enforcement.” As a result, the federal rules governing dismissal are purely procedural and, absent any violation of the Rules Enabling Act, must be applied in federal court.

The Northern District of Georgia’s decision sides with the minority view in an emerging circuit split on the issue. The Ninth and First Circuits have both accorded federal-court defendants the full procedural advantages of anti-SLAPP laws. See, e.g., Batzel v. Smith, 133 F.3d 1018, 1024-26 (9th Cir. 2003); Godin v. Schencks, 629 F.3d 79, 88 (1st Cir. 2010). The DC Circuit, on the other hand, has concluded that anti-SLAPP motions don’t belong in federal courts because they directly conflict with the Federal Rules of Civil Procedure. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333-37 (DC Cir. 2015).

Although last year the Supreme Court denied a petition asking it to answer this very question, the high court cannot ignore the circuit split forever. Until then, depending on what federal circuit they are in, defendants seeking to avail themselves of the procedural protections of anti-SLAPP statutes may need to resist the reflex to remove their cases to federal court.