WASHINGTON (March 3, 2016) — Congress should examine ways to extend the protections afforded by state-level laws against “SLAPPs” – strategic lawsuits against public participation – to the federal courts, according to a new R Street policy short from Senior Fellow Cameron Smith and Legal Intern Moriah Mensah.

Anti-SLAPP laws seek to curb lawsuits that are filed to prevent citizens from speaking up about matters of public concern or to silence and intimidate critics. Currently, 28 states and the District of Columbia have anti-SLAPP laws on the books. While these states recognize the need for anti-SLAPP protections, Smith and Mensah find that state laws not only “vary significantly from state to state” in their content, but also in their projected efficacy at the federal court level.

“The patchwork of state laws with varying provisions is healthy evidence of federalism in action, but those protections may be insufficient if and when a defamation action moves to federal court,” the authors write. “As a general rule, substantive state laws apply in federal court, while rules of state civil procedure do not. Certain exceptions apply to that norm but federal courts around the country struggle to decipher whether to apply anti-SLAPP provisions.”

As a result of the uncertainty surrounding whether state protections would be upheld in federal court, Smith and Mensah highlight the potential role of a federal rule that could not only expand anti-SLAPP protections to defendants living in states without anti-SLAPP laws on the books, but also clarify existing state provisions. Among the pending pieces of legislation that might fill such a role is the Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts (SPEAK FREE) Act of 2015, introduced in May 2015 by U.S. Rep. Blake Farenthold, R-Texas.

Smith and Mensah conclude:

“Should federal courts increasingly decide that state anti-SLAPP protections are mere procedural rules inapplicable in a federal forum, Congress must act. Whether it’s the SPEAK FREE Act or a rejoinder to federal courts to apply state anti-SLAPP laws, our policymakers should ensure that citizens aren’t subject to abusive lawsuits designed to perpetuate silence, rather than remedy harm.”