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Media Coalition Supports Rehearing En Banc on Applicability of Georgia Anti-SLAPP Law in Federal Court

A media amicus coalition, including MLRC and 24 other organizations, has asked the U.S. Court of Appeals for the Eleventh Circuit to reconsider en banc a panel decision ruling that the Georgia anti-SLAPP statute does not apply in diversity actions in federal court.

The issue of whether state anti-SLAPP statutes apply in federal court is the subject of a widening circuit split and could ultimately be headed to the Supreme Court.

Most federal circuits confronted with the issue—most notably the Ninth—have ruled that state anti-SLAPP laws do not conflict with federal procedural rules and thus apply in federal court.

But in 2015, the D.C. Circuit, per an opinion by then-Judge Brett Kavanaugh, held that anti-SLAPP laws conflict with the Federal Rules of Civil Procedure that govern motions to dismiss and for summary judgment and must not be applied.

In December, Eleventh Circuit Judge William Pryor wrote for an undivided panel that the court found "then-Judge Kavanaugh's reasoning ... far more convincing." As reported in MediaLawDaily, the decision came in Carbone v. CNN, a media defamation case filed in the United States District Court for the Northern District of Georgia.

On January 3, CNN petitioned for rehearing en banc, arguing that it was "critical that the judges of this Circuit speak with one voice when an addressing an issue of such fundamental importance to the individual rights of citizens" and that that was "especially important as the Panel's decision conflicts with holdings from the First, Second, Fifth and Ninth Circuit Courts of Appeals as well as prior holdings of this Circuit," citing the Eleventh Circuit's opinions in Tobinick v. Novella, 848 F.3d 935 (11th Cir. 2017) and Royalty Network, Inc. v. Harris, 756 F.3d 135 (11th Cir. 2014).

By a motion for leave filed January 10, the media amici proffered their brief in support, arguing that the Georgia anti-SLAPP "provides essential protection to the press—and, ultimately, to the society that the press serves—by promoting early dismissal of frivolous speech-related lawsuits"; that that protection has been borne out by experience; and that refusing to apply the statute in federal court "would severely undercut the Georgia General Assembly's effort to foster vibrant debate on public issues and to encourage media companies to operate in the state."

En banc review is particularly rare in the Eleventh Circuit. A decision on CNN's petition is expected within the next few months.

The media brief was written by Peter C. Canfield, Jones Day, Atlanta; and Shay Dvoretzky, Yaakov M. Roth, Anthony J. Dick, and Vivek Suri, Jones Day, Washington, D.C., on behalf of Advance Publications, Inc.; American Broadcasting Companies, Inc.; American Society of News Editors; Association of Alternative Newsmedia; Association of American Publishers, Inc.; Atlantic Media; Bloomberg, LP; Cox Media Group; Dow Jones & Company, Inc.; The Economist Newspaper Limited; Gannett Company, Inc.; The Georgia Press Association; The Media Law Resource Center, Inc.; Meredith Corporation; Motion Picture Association of America, Inc.; The National Press Photographers Association; National Public Radio, Inc.; NBCUniversal; New World Communications of Atlanta, Inc.; The New York Times Company; The News Media Alliance; Online News Association; The Reporters Committee for Freedom of the Press; Univision Communications Inc.; and The Washington Post.

CNN is represented by Charles D. Tobin, Ballard Spahr, LLP, Washington, D.C.

Davide M. Carbone is represented by L. Lin Wood, Jonathan David Grunberg, and George Taylor Wilson of L. Lin Wood, PC, Atlanta, and by Stacey Godfrey Evans, Wargo & French LLP, Atlanta.

 
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