Watch Out, CNN: Trump's Supreme Court Frontrunner Is Bad News for Free Speech

Brett Kavanaugh Jeff Zucker - Getty - H Split 2018
Chip Somodevilla/Getty; Jim Spellman/WireImage

If Donald Trump selects Brett Kavanaugh to be the next Supreme Court Justice, as many prognosticators expect, Trump may go far in living up to his much ridiculed pledge to open up libel laws to make it easier to sue media outlets.

How? Turn no further than Abbas v. Foreign Policy Group, a 2014 decision at the U.S Appeals Court for the D.C Circuit authored by Kavanaugh.

At first blush, the decision looks like a win for libel defendants. In fact, when it came out, many reporters highlighted how Kavanaugh poured cold water on the notion that asking a question could be actionable as defamation by implication. (The plaintiff was the son of the Palestinian leader suing over the questions, “Are the sons of the Palestinian president growing rich off their father’s system?” and “Have they enriched themselves at the expense of regular Palestinians — and even U.S. taxpayers?”)

But the bigger bombshell from Kavanaugh in Abbas was becoming the first appellate circuit anywhere in the nation to rule that anti-SLAPP analysis had no business in federal courts.

What’s “anti-SLAPP”?

For those unfamiliar with the term, SLAPP stands for Strategic Lawsuits Against Public Participation. Several dozen states have enacted anti-SLAPP laws to deter frivolous litigation aimed at activity protected by the First Amendment.

Here’s an example: I post a review on Yelp that Joe’s Famous Pizza cooks food that tastes like garbage. The restaurant sues me for defamation. In response, I invoke the SLAPP law at the outset of the case and ask the judge to reject the defamation claim as mere opinion. If I win, not only does the lawsuit go away, but Joe’s Famous Pizza has to pay my attorney fees. If I lose, in some states, I may have an automatic right to an immediate appeal. But even more important is how SLAPP laws change the standard of analysis at the early juncture of a lawsuit. Under a traditional motion to dismiss under federal rules, Joe’s Famous Pizza would only have to show it has brought plausible claims. Perhaps it alleges (and on a motion to dismiss, a judge must assume the truth of such allegations) that I've never actually been to Joe’s Famous Pizza and that in a survey of 5,000 customers, every single one of them loved its food. Under a motion to strike pursuant to an anti-SLAPP law, by contrast, Joe’s Famous Pizza must demonstrate it has a likelihood of success before the case moves any further.

As Kavanaugh notes in Abbas, anti-SLAPP statutes give more breathing space for free speech and try to decrease the "chilling effect" of speech-restrictive litigation. Having breathing room is important because even meritless lawsuits are expensive to defend. To avoid such costs, some might find it better to self-censor. 

The problem with anti-SLAPP laws, as Kavanaugh sees it, is that states are essentially dictating how federal courts run. He believes that's the providence of Congress, which if it so wished, could heighten pleading standards for lawsuits. In Abbas, Kavanaugh also points to how the Rules Enabling Act empowers the Supreme Court to prescribe rules of procedure for lower federal courts. What's the test? In 1941, the Supreme Court decided that a new rule is in violation if it "really regulates procedure." And Kavanaugh nods to the continuing open questions, but a plurality opinion in 2010 by the late Justice Antonin Scalia (Shady Grove) that upheld the skeptical view over a colleague's dissent. Kavanaugh also takes on other circuits that have accepted anti-SLAPP rules. He says he agrees with a concurring opinion by the now-retired Judge Alex Kozinski in Makaeff v. Trump University, who challenged the 9th Circuit's tolerance for anti-SLAPP statutes. (That case examined defamation counterclaims by Donald Trump against a student of the infamous Trump University.)

Since Kavanaugh authored Abbas, it has become influential in the judiciary even if his colleagues at the DC Circuit have attempted to walk it back. (See footnote No. 32 here.) As noted, Kavanaugh was the first appellate judge to rule in the majority that anti-SLAPP analysis should be rejected in federal courts, but since then, there have been other circuits — most recently, the 10th Circuit — coming to Kavanaugh's conclusions or at least echoing his concerns.

For example, see a Georgia federal judge's ruling in February 2017 allowing a defamation case against CNN over its report that the infant mortality rate for open-heart surgery at West Palm Beach, Fla.-based St. Mary's Medical Center was three times the national average. U.S. District Judge Orinda Evans rejected CNN's bid to invoke Georgia's anti-SLAPP statute by explicitly nodding to what Kavanaugh had to say about federal rules of procedure in Abbas.

"He agrees with this Court that the two are in conflict and cannot co-exist," wrote Evans. "As in D.C., here, the Georgia anti-SLAPP statute impermissibly 'set[s] up an additional hurdle a plaintiff must jump over to get to trial' in federal court."

The CNN case will soon be reviewed by the 11th Circuit, and we've already predicted it will be going to the Supreme Court, although the truth is that there are a number of other cases currently pending that could become alternative vehicles for the high court to address the topic of what to do about anti-SLAPP rules in federal court. Some legal observers are begging for guidance from the Supreme Court.

At this point of the column, we must pause a second because we imagine that there might be a subset of our readership — those who strongly support Trump's notion of pervasive "fake news" — who might be suddenly warming to Kavanaugh if only to stick it to media outlets like CNN. But consider …

Trump is currently facing a defamation lawsuit from Stormy Daniels over a tweet. It's quite likely that sometime soon, his lawyers will be invoking the anti-SLAPP statute of Texas (where Daniels is a citizen) in an attempt to kill her claims. (Although it was a state court, Trump unsuccessfully attempted to use California anti-SLAPP statute to deter the defamation lawsuit brought by former Apprentice contestant Summer Zervos. At a hearing last year, Trump's lawyer called the anti-SLAPP statute "good law.")

If that's not sufficiently convincing that anti-SLAPP laws are not purely designed to protect liberal speech, consider the issue of religious liberty. Some conservatives believe that the First Amendment permits cake bakers from refusing to make a wedding cake for same-sex couples. Although Justice Anthony Kennedy's recent Supreme Court decision on the topic hardly settled the issue, if that view of the First Amendment ultimately prevails, cake bakers would have the opportunity to SLAPP discrimination claims out of court. 

Possibly federal court, too, depending on how the Supreme Court ultimately comes down on the issue of whether defendants — including Hollywood studios in idea-theft cases and television networks in privacy cases — can lean on anti-SLAPP statutes in federal courts.

"I think that Kavanaugh would be a disappointing choice from a First Amendment perspective," says attorney Marc Randazza, who is now representing InfoWars' Alex Jones in a defamation case brought by families of Sandy Hook victims. "His opinion in Abbas was, quite frankly, crap — the kind of crap that you see from the kind of judge who likes to play favorites. … I see him creating an anti-free-speech alliance with [Supreme Court Justice Elena] Kagan."

Randazza, who says he was pretty thrilled with Trump's selection of Neil Gorsuch, also believes that if anti-SLAPP laws get thrown out of federal courts, litigators will go out of their way to figure out a way to file their cases in federal court. Invoking diversity jurisdiction or piling on with claims that are the exclusive jurisdiction of federal courts may be increasingly attractive tactical moves. Randazza predicts, "You'll essentially see every single defamation claim accompanied by a Lanham Act claim. You're seeing a lot of that now."