volokh - amici curiae brief in support of steven novella

No. 15-14889

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

____________________________________________

EDWARD LEWIS TOBINICK, MD, A Medical Corporation, d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY; INR PLLC,

d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY; EDWARD TOBINICK, an individual,

Plaintiffs-Appellants, - v. -

STEVEN NOVELLA, an individual; SOCIETY FOR SCIENCE-BASED MEDICINE, INC.; SGU PRODUCTIONS, LLC, a

Connecticut limited liability company, Defendants-Appellees.

____________________________________________

On Appeal from a Final Judgment of the United States District Court for the Southern District of Florida

Case No. 9:14-cv-80781-RLR ____________________________________________

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF ON BEHALF OF PROFS. GREGORY DOLIN, HENRY GREELY, DAVID HYMAN, ABIGAIL MONCRIEFF, AND NATALIE RAM,

AND THE CENTER FOR MEDICINE AND LAW IN SUPPORT OF DEFENDANT-APPELLEE

____________________________________________

Eugene Volokh UCLA School of Law Scott & Cyan Banister First Amendment Clinic 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 [email protected]

Case: 15-14889 Date Filed: 05/26/2016 Page: 1 of 7

1

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

In addition to those listed in Appellant’s Opening Brief and Appellee’s

Brief, the following persons (none of whom are corporations) have an in-

terest in the outcome of this case:

Volokh, Eugene, as counsel for proposed amici.

The proposed amici:

Prof. Gregory Dolin, University of Baltimore School of Law.

Prof. Henry Greely, Stanford Law School.

Prof. David Hyman, University of Illinois College of Law.

Prof. Abigail Moncrieff, Boston University School of Law.

Prof. Natalie Ram, University of Baltimore School of Law.

The Center for Medicine and Law at University of Baltimore School of

Law, a public institution of the State of Maryland.


2

MOTION

Prof. Gregory Dolin, M.D., is the director of the Center for Medicine

and Law and Associate Professor of Law at University of Baltimore

School of Law.

Prof. Henry Greely is Director of the Center for Law and the Biosci-

ences, Director of the Stanford Program in Neuroscience and Society,

Professor (by courtesy) of Genetics at Stanford School of Medicine, Chair

of the Steering Committee of the Center for Biomedical Ethics, and Diane

F. and Kate Edelman Johnson Professor of Law at Stanford Law School.

Prof. David Hyman, M.D., is the director of the Epstein Program in

Health Law and Policy and the H. Ross and Helen Workman Chair in

Law and Professor of Medicine at the University of Illinois.

Prof. Abigail Moncrieff is Associate Professor of Law at Boston Uni-

versity School of Law, where she specializes in, among other things, law

and medicine.

Prof. Natalie Ram is the associate director of the Center for Medicine

and Law and Assistant Professor of Law at University of Baltimore

School of Law.


3

The individual amici have all written extensively on the intersection

of law and medicine.

The Center for Medicine and Law, founded in July 2011, is the first

center in the nation to focus on collaboration between medicine and law

and to serve as an objective and informative resource for health-related

professions, policymakers, the media, the public and other academic in-

stitutions with similar interests. Among other things, the center sponsors

conferences, research scholarship and educational programs on a variety

of topics at the intersection of medicine and law.

Amici have a deep interest in the freedom of debate and criticism on

medical matters; and their experience with law and medicine may pro-

vide a helpful perspective for this Court to consider. The arguments in

this brief are aimed at broadly protecting the free speech of commenta-

tors about medicine generally, and not just of defendants in particular.

The arguments are complementary to the arguments in defendants’ brief,

but not redundant of those arguments. Proposed amici therefore hope

that the arguments will assist the Court in deciding this case.


4

Based on the above, proposed amici move this court to accept the amici

curiae brief submitted together with this motion. Plaintiff has consented

to the filing of this brief, but defendants have declined to consent.

Dated: May 26, 2016

s/ Eugene Volokh Attorney for Proposed Amici Curiae Law Professors


5

CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2016, I electronically filed the fore-

going through the Court’s CM/ECF system. Notice of this filing will be

sent by e-mail to all CM/ECF-registered parties by operation of the

Court’s electronic filing system. I have caused this document to be sent

by mail to the following parties who prefer mail service:

Geoffrey Michael Cahen Quarles & Brady, LLP 1900 Glades Rd Ste. 355 Boca Raton, FL 33431-8548 Ian Clark Australian National University Research School of Biology Linnaeus Way Bldg. 134 Canberra, 2601 Australia ACT Jason Allan Fischer Fischer Law, PL 2 Biscayne Blvd. Ste. 2600 Miami, FL 33131 Coralie Graham University of Southern Queensland Dep’t of Health, Engineering & Sciences Baker St. Toowoomba, Queensland, 4350 Australia


6

Jay Marshall Wolman Randazza Legal Group, PLLC 4035 S El Capitan Way Las Vegas, NV 89147

s/ Eugene Volokh Counsel for Amicus Curiae May 26, 2016


No. 15-14889

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

____________________________________________

EDWARD LEWIS TOBINICK, MD, A Medical Corporation, d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY; INR PLLC,

d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY; EDWARD TOBINICK, an individual,

Plaintiffs-Appellants, - v. -

STEVEN NOVELLA, an individual; SOCIETY FOR SCIENCE-BASED MEDICINE, INC.; SGU PRODUCTIONS, LLC, a

Connecticut limited liability company, Defendants-Appellees.

____________________________________________

On Appeal from a Final Judgment of the United States District Court for the Southern District of Florida

Case No. 9:14-cv-80781-RLR ____________________________________________

PROPOSED BRIEF OF AMICI CURIAE PROFS. GREGORY DOLIN, HENRY GREELY, DAVID HYMAN,

ABIGAIL MONCRIEFF, AND NATALIE RAM, AND THE CENTER FOR MEDICINE AND LAW

IN SUPPORT OF DEFENDANT-APPELLEE ____________________________________________

Eugene Volokh UCLA School of Law Scott & Cyan Banister First Amendment Clinic 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 [email protected]*

* Counsel would like to thank Artin Afkhami, Elizabeth Arias, and

Eugene Lim, UCLA School of Law students who worked on this brief.


i

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

In addition to those listed in Appellant’s Opening Brief and Appellee’s

Brief, the following persons (none of whom are corporations) have an in-

terest in the outcome of this case:

Volokh, Eugene, as counsel for proposed amici.

The proposed amici:

Prof. Gregory Dolin, University of Baltimore School of Law.

Prof. Henry Greely, Stanford Law School.

Prof. David Hyman, University of Illinois College of Law.

Prof. Abigail Moncrieff, Boston University School of Law.

Prof. Natalie Ram, University of Baltimore School of Law.

The Center for Medicine and Law at University of Baltimore School of

Law, a public institution of the State of Maryland.


ii

TABLE OF CONTENTS

Certificate of Interested Persons and Corporate Disclosure Statement ............................................................................................... i

Table of Contents ...................................................................................... ii

Table of Authorities ................................................................................. iii

Interest of Amici Curiae ............................................................................ 1

Summary of Argument .............................................................................. 3

Argument ................................................................................................... 5

I. Dr. Novella’s speech is not commercial speech .................................... 5

II. California’s anti-SLAPP statute applies in federal court .................. 11

A. California’s anti-SLAPP statute is part of California’s substantive libel law and thus applies in federal court ................ 12

B. California’s anti-SLAPP statute does not conflict with the Federal Rules ................................................................................. 15

C. Applying California’s anti-SLAPP statute achieves the Erie doctrine’s twin goals ....................................................................... 17

Conclusion ............................................................................................... 18

Certificate of Compliance ........................................................................ 19

Certificate of Service ............................................................................... 20


iii

TABLE OF AUTHORITIES

Cases

Abbas v. Foreign Policy Grp., 783 F.3d 1328 (D.C. Cir. 2015) ... 12, 15, 16

Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014) ...................................... 11

All Underwriters v. Weisberg, 222 F.3d 1309 (11th Cir. 2000) .............. 13

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ...................................... 14

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) ..................... 7, 8

Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679 (7th Cir. 1998) ................................................. 8

Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir. 1982) .................................................................................................... 13

DC Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013) .......... 14

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ....................................... 18

Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010) .......................... 11, 13, 15

Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521 (S.D.N.Y. 1994) ........................................................ 8, 10

Henry v. Lake Charles Am. Press, 566 F.3d 164 (5th Cir. 2009) ............ 11

Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d 1254 (11th Cir. 2011) ................................................................................... 11

Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729 (7th Cir. 2015) ............................................................................................. 11

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ................................ 6

Kurz v. Syrus Sys., 221 Cal. App. 4th 748 (2013) ................................... 13


iv

Makaeff v. Trump Univ., 736 F.3d 1180 (9th Cir. 2013) ............ 14, 15, 16

Nunez v. Pennisi, 241 Cal. App. 4th 861 (2015) ..................................... 13

Riley v. Nat’l Fed’n for the Blind, 487 U.S. 781 (1988) ............................. 9

Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014) ........... 12

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) .............. 9

Servicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc., 145 F.3d 463 (1st Cir. 1998) ............................................................... 13

Smith v. California, 361 U.S. 147 (1959) .............................................. 6, 7

United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) ............................................. 11, 14, 16, 17

Univ. of Ala. Bd. of Trustees v. New Life Art, Inc., 683 F.3d 1266 (11th Cir. 2012) ..................................................................................... 7

World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142 F. Supp. 2d 514 (S.D.N.Y. 2001) ................................................................................. 8, 9

Statutes

28 U.S.C. § 2072 ...................................................................................... 15

Cal. Civ. Proc. Code § 425.16(a) .............................................................. 14

Cal. Civ. Proc. Code § 430.10 .................................................................. 16

Cal. Civ. Proc. Code § 437c(c) .................................................................. 16

Rules

Fed. R. Civ. P. 11 ..................................................................................... 12

Fed. R. Civ. P. 12(b)(6) .................................................................. 4, 15, 16


v

Fed. R. Civ. P. 56 ........................................................................... 4, 15, 16


1

INTEREST OF AMICI CURIAE1

Prof. Gregory Dolin, M.D., is the director of the Center for Medicine

and Law and Associate Professor of Law at University of Baltimore

School of Law.

Prof. Henry Greely is Director of the Center for Law and the Biosci-

ences, Director of the Stanford Program in Neuroscience and Society,

Professor (by courtesy) of Genetics at Stanford School of Medicine, Chair

of the Steering Committee of the Center for Biomedical Ethics, and Diane

F. and Kate Edelman Johnson Professor of Law at Stanford Law School.

Prof. David Hyman, M.D., is the director of the Epstein Program in

Health Law and Policy and the H. Ross and Helen Workman Chair in

Law and Professor of Medicine at the University of Illinois.

1 No party or party’s counsel has authored this brief in whole or in part, or contributed money that was intended to fund preparing or sub-mitting the brief. No person has contributed money that was intended to fund preparing or submitting the brief, except that UCLA School of Law paid the expenses involved in filing this brief. Defendants-appellees have consented to the filing of this brief, but plaintiffs-appellants have not.


2

Prof. Abigail Moncrieff is Associate Professor of Law at Boston Uni-

versity School of Law, where she specializes in, among other things, law

and medicine.

Prof. Natalie Ram is the associate director of the Center for Medicine

and Law and Assistant Professor of Law at University of Baltimore

School of Law.

The individual amici have all written extensively on the intersection

of law and medicine.

The Center for Medicine and Law, founded in July 2011, is the first

center in the nation to focus on collaboration between medicine and law

and to serve as an objective and informative resource for health-related

professions, policymakers, the media, the public and other academic in-

stitutions with similar interests. Among other things, the center sponsors

conferences, research scholarship and educational programs on a variety

of topics at the intersection of medicine and law.

Amici have a deep interest in the freedom of debate and criticism on

medical matters; and their experience with law and medicine may pro-

vide a helpful perspective for this Court to consider.


3

SUMMARY OF ARGUMENT

1. Books, movies, newspapers, and magazines are all sold for profit,

but they are fully protected by the First Amendment. Likewise, Dr. No-

vella’s article is fully protected speech, though it was posted to a profit-

generating site.

Dr. Novella’s article warns patients about the risks of treating Alz-

heimer’s with arthritis medication, and thus helps them make more in-

formed healthcare decisions. It also helps other doctors decide whether

to adopt Dr. Tobinick’s treatment methods, and provides interested lay-

people with scientific commentary. Such speech thus valuably contrib-

utes to the marketplace of ideas.

2. Five federal circuit courts have considered whether federal courts

should apply anti-SLAPP statutes like California’s. Four have found that

such statutes do apply in federal court. This dominant view is correct for

the three reasons.

First, California’s anti-SLAPP statute substantively limits the scope

of state libel law by shifting the burden of proof and by requiring plain-

tiffs in meritless cases to pay the defendants’ attorney’s fees. It also sub-

stantively protects the First Amendment rights of defendants threatened


4

by meritless lawsuits. The Erie doctrine thus requires that federal courts

deciding diversity cases apply the statute.

Second, the statute coexists with the Federal Rules of Civil Procedure.

Rules 12(b)(6) and 56 provide two means for defendants to dispose mer-

itless suits; the statute simply provides a third. Federal courts can thus

apply it without conflict with the Federal Rules.

Third, applying the statute serves the twin goals of the Erie doctrine:

It prevents forum-shopping and avoids inequitable administration of the

law. The statute applies in California state courts and in the Ninth Cir-

cuit. If this Court does not apply the statute, California plaintiffs will

have an incentive to look for a new forum to bring libel suits, and differ-

ent litigants will be treated differently even when their cases involve the

same facts and the same California libel law.

This Court should therefore affirm the District Court’s holding that

Dr. Novella’s blog posts are fully protected speech, and that the Califor-

nia anti-SLAPP statute applies in federal court.


5

ARGUMENT

I. Dr. Novella’s speech is not commercial speech

Dr. Novella’s article warns readers that Dr. Tobinick’s Alzheimer’s

treatment—prescribing arthritis medications to patients facing a termi-

nal, degenerative disease—is, in Dr. Novella’s view, not supported by se-

rious scientific research and may be dangerous.

If Dr. Tobinick’s theory is mistaken, patients may waste their money

on a false hope for recovery. If his theory is correct, his procedures may

change the science of Alzheimer’s treatment. The only way to test

whether a scientific theory is true is to constantly consider whether it

may be false; by challenging Dr. Tobinick’s claims, Dr. Novella helps test

their truth. Dr. Novella’s statements are thus valuable components of

public debate about science, and are fully constitutionally protected.

Indeed, Dr. Novella’s speech is a classic example of doctors evaluating

and critiquing others’ theories. Doctors often view themselves as profes-

sionally and morally obligated to speak forthrightly about medical dis-

putes that may affect people’s lives. Doctors critique other doctors’ theo-

ries during morbidity and mortality conferences, in scientific journals,

while preparing expert reports, and in many more contexts—many of


6

which involve the critics being paid for their time and expertise. Medicine

could not advance without such forthright discussion.

And the protection for this discussion is not diminished by Dr. No-

vella’s having published his posts on a revenue-generating website. Dr.

Tobinick claims that the paid ads, subscriptions, and donation requests

on Dr. Novella’s website make the blog posts commercial speech. Tobinick

Br. 1, 4. But like Dr. Novella, Scientific American sells advertisements

and subscriptions; The New England Journal of Medicine sells subscrip-

tions; and National Public Radio requests donations. Following Dr. To-

binick’s logic, these important sources of information would be treated as

less-protected “commercial speech.”

Yet the Supreme Court has held that the First Amendment fully pro-

tects speech even when a speaker profits from it: “That books, newspa-

pers, and magazines are published and sold for profit does not prevent

them from being a form of expression whose liberty is safeguarded by the

First Amendment.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02

(1952); see also Smith v. California, 361 U.S. 147, 150 (1959). This Court

has concluded the same: Even when a commercial artist “sells [his works]

for money,” “it ‘is of course no matter that the dissemination [of speech]


7

takes place under commercial auspices.’” Univ. of Ala. Bd. of Trustees v.

New Life Art, Inc., 683 F.3d 1266, 1276 (11th Cir. 2012) (quoting Smith,

361 U.S. at 150). “Like other expressive speech, [a commercial artist’s]

paintings, prints, and calendars are entitled to full protection under the

First Amendment.” Id. Thus, Dr. Novella’s speech is fully protected even

when he publishes it on an income-generating website.

Nor are Dr. Novella’s posts commercial speech under the test for com-

mercial advertisements outlined in Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60 (1983). Bolger held that “[t]he combination of [three] charac-

teristics” cause a condom manufacturer’s pamphlets to be commercial

speech: that (1) the manufacturer’s pamphlets were “conceded to be ad-

vertisements,” that (2) the pamphlets “refer[red] to a specific product”

sold by the manufacturer, and that (3) the manufacturer “has an eco-

nomic motivation for mailing the pamphlets.” Id. at 66-67. But these fac-

tors cut against treating Dr. Novella’s posts as commercial:

1. The posts are not in the form of traditional advertisements. Id. at

66. Instead, they are like articles in a scientific magazine that may

be accompanied by advertisements or subscription offers, but that

are not themselves commercial speech.


8

2. The only product mentioned by the posts is Dr. Tobinick’s treat-

ment, which Dr. Novella evaluates and discourages people from

buying. Such a review of Dr. Tobinick’s service is as fully protected

as a product review in Consumer Reports or Car & Driver, or a res-

taurant review in the Atlanta Journal-Constitution. See, e.g., Com-

modity Trend Serv., Inc. v. Commodity Futures Trading Comm’n,

149 F.3d 679, 686 (7th Cir. 1998) (restaurant reviews are not com-

mercial speech); Gordon & Breach Sci. Publishers S.A. v. Am. Inst.

of Physics, 859 F. Supp. 1521, 1544 (S.D.N.Y. 1994) (Consumer Re-

ports’ publishing of its product reviews is not commercial speech).

3. Even if Dr. Novella might be motivated in part by economic inter-

est—as many book authors, filmmakers, and newspaper writers

are—that is not enough to make his articles commercial speech.

“[T]hat [a company] has an economic motivation for [speaking]

would clearly be insufficient by itself to turn the [speech] into com-

mercial speech.” Bolger, 463 U.S. at 67.

Dr. Tobinick relies on World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142

F. Supp. 2d 514 (S.D.N.Y. 2001), a case in which an advocacy group built


9

a fundraising campaign around criticisms of the World Wrestling Feder-

ation. Id. at 525-26. But Dr. Novella’s scientific critiques are not the cen-

terpiece of his donation requests, subscriptions, or advertisements. In-

stead, they are standalone editorial content, clearly distinct from any re-

quests for funding. And when Dr. Novella requested donations to cover

his legal costs, he did so separately from his scientific critiques of Dr.

Tobinick, and only as a direct consequence of this lawsuit.

More importantly, the Bozell court failed to consider Supreme Court

case law on fundraising by charities and advocacy groups. In Riley v.

Nat’l Fed’n for the Blind, 487 U.S. 781 (1988), the Supreme Court held

that direct requests for charitable contributions, “intertwined” with ad-

vocacy, were fully protected speech: “It is not clear that a professional’s

speech is necessarily commercial whenever it relates to that person’s fi-

nancial motivation for speaking.” Id. at 795-96. “But even assuming,

without deciding, that such speech in the abstract is indeed merely ‘com-

mercial,’ we do not believe that the speech retains its commercial charac-

ter when it is inextricably intertwined with otherwise fully protected

speech.” Id. at 796; see also Schaumburg v. Citizens for a Better Env’t,

444 U.S. 620, 632 (1980) (holding that charitable donation requests are


10

not commercial speech). Like the charitable organization in Riley, Dr.

Novella requests money so he can continue his public-minded work—

writing articles about science. Because these requests are “inextricably

intertwined” with his editorial content, his speech is fully protected by

the First Amendment.

A better analogy for this case than Bozell is Gordon & Breach Sci.

Publishers, which held that scientific journal articles printed alongside

advertisements were not commercial speech because (1) defendant was a

nonprofit organization, (2) academic journals are constitutionally pro-

tected, and (3) the advertisements were not the central message of the

articles. 859 F. Supp. at 1540-41. Applying that reasoning to our case,

Dr. Novella’s articles are not commercial speech because: (1) Dr. No-

vella’s website belongs to his nonprofit Society for Science-Based Medi-

cine, Inc.; (2) his posts are functionally equivalent to scientific articles in

a magazine, whether an academic journal or a magazine that popularizes

scientific work for the public; and (3) his posts critique Dr. Tobinick and

are unrelated to any of the advertisements.


11

II. California’s anti-SLAPP statute applies in federal court

Federal courts deciding diversity cases apply state rules when the

state rule is “substantive law” and “does not conflict with a valid federal

statute or rule.” Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d

1254, 1259 (11th Cir. 2011) (treating a fee-shifting statute as substantive

for Erie purposes). Because the California anti-SLAPP statute meets

these requirements, it applies in federal court. United States ex rel. New-

sham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972-73 (9th Cir.

1999).

Five federal circuits have considered whether state anti-SLAPP with

burden shifting and attorney fees provisions apply in federal court.

Four—the First, Second, Fifth, and Ninth—have held that they do. See

Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010); Adelson v. Harris, 774

F.3d 803, 809 (2d Cir. 2014); Henry v. Lake Charles Am. Press, 566 F.3d

164, 168-69 (5th Cir. 2009); Newsham, 190 F.3d at 973; cf. Intercon Solu-

tions, Inc. v. Basel Action Network, 791 F.3d 729, 731-32 (7th Cir. 2015)

(refraining from answering whether Washington’s anti-SLAPP statute

applied in federal court because the Washington Supreme Court had ear-

lier concluded that the statute violated the state’s constitution). Only one


12

circuit has held the opposite. Abbas v. Foreign Policy Grp., 783 F.3d 1328,

1337 (D.C. Cir. 2015).

In a limited holding, this Court found Georgia’s anti-SLAPP statute

did not apply in federal court because it imposed a verification require-

ment on plaintiffs, and was thus procedural for Erie purposes. Royalty

Network, Inc. v. Harris, 756 F.3d 1351, 1357-60 (11th Cir. 2014). But the

verification requirement directly contradicts Rule 11, which explicitly

states that “a pleading need not be verified or accompanied by an affida-

vit.” Id. at 1358 (quoting Fed. R. Civ. P. 11). This court did not address

whether more substantive aspects of anti-SLAPP statutes—burden shift-

ing and attorney fees provisions—would apply in federal court. Id. at

1361-62.

A. California’s anti-SLAPP statute is part of California’s substan-tive libel law and thus applies in federal court

The California anti-SLAPP statute limits California libel law in two

ways that are relevant to this case. First, the statute provides that a de-

fendant who wins an anti-SLAPP motion can get attorney’s fees. This

Court has concluded that fee-shifting statutes are “substantive law for

Erie purposes,” and thus “applicable in federal courts sitting in Florida.”


13

All Underwriters v. Weisberg, 222 F.3d 1309, 1311-12 (11th Cir. 2000);

see also Servicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc.,

145 F.3d 463, 478 (1st Cir. 1998) (stating that a state procedural rule

providing attorney’s fees] “is substantive for Erie purposes”).

Second, the statute shifts the burden of proof. Normally, in a pretrial

motion the burden is entirely on the defendant. Under the anti-SLAPP

statute, once the defendant shows that the speech was on a matter of

public concern, “the burden shifts to the plaintiff to demonstrate a prob-

ability of prevailing on the claim.” Nunez v. Pennisi, 241 Cal. App. 4th

861, 871 (2015); see also Kurz v. Syrus Sys., 221 Cal. App. 4th 748, 757-

58 (2013). In this respect, the state law here is like “[s]tate doctrines of

res ipsa loquitur [that] are respected in federal court because the doctrine

has assumed the status of a substantive rule of law, affecting plaintiff’s

burden of proof or production of evidence.” Daniels v. Twin Oaks Nursing

Home, 692 F.2d 1321, 1324 (11th Cir. 1982); see also Godin, 629 F.3d at

89 (“One of the substantive aspects of [Maine’s anti-SLAPP statute]

shifts the burden to plaintiff to defeat the special motion.”).

And treating these provisions as substantive and thus applicable in

federal court makes sense. To apply California libel law as the California


14

Legislature envisions it, federal courts must also apply the limitations on

that law: “Through anti-SLAPP laws, [state] legislatures . . . have de-

cided to impose substantive limitations on certain state law actions. . . .

If we ignore how states have limited actions under their own laws, we . . .

flush away state legislatures’ considered decisions on matters of state law

. . . .” Makaeff v. Trump Univ., 736 F.3d 1180, 1187 (9th Cir. 2013).

The California Legislature has chosen to provide additional substan-

tive protection for defendants’ First Amendment rights. “[R]ights to free

speech and petition . . . are at the heart of California’s anti-SLAPP stat-

ute.” DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir.

2013). Libel lawsuits tend to silence speech because litigation is costly

and time-consuming. Newsham, 190 F.3d at 970-71. The California Leg-

islature enacted the anti-SLAPP statute to limit this tendency of Califor-

nia libel law, Cal. Civ. Proc. Code § 425.16(a) (West 2015), and to create

“a substantive immunity from suit.” Batzel v. Smith, 333 F.3d 1018, 1025

(9th Cir. 2003).

Federal courts rightly respect this state legislative decision. Indeed, if

this Court were to decline to apply the California statute, the substantive

right that the statute creates would be lost. Yet the Rules Enabling Act


15

provides that the federal rules do not purport to abridge substantive

rights. 28 U.S.C. § 2072.

In Abbas, the D.C. Circuit concluded that D.C.’s anti-SLAPP statute

did not apply in federal court because it was not substantive. Abbas v.

Foreign Policy Grp., 783 F.3d 1328, 1337 (D.C. Cir. 2015). The court re-

jected defendants’ argument that the statute substantively embodied “a

form of qualified immunity shielding participants in public debate from

tort liability.” Id. at 1335. But the court did not discuss the separate ar-

guments that the burden shifting and fee shifting aspects of the anti-

SLAPP statute made it substantive.

B. California’s anti-SLAPP statute does not conflict with the Fed-eral Rules

“California’s anti-SLAPP statute, by creating a separate and addi-

tional theory upon which certain kinds of suits may be disposed of before

trial, supplements rather than conflicts with the Federal Rules.” Maka-

eff, 736 F.3d at 1182. Rule 12(b)(6) provides defendants with one means

to dismiss meritless suits. Rule 56 provides another. Anti-SLAPP stat-

utes provide a third—the early disposal of meritless suits brought to chill

protected speech. Godin, 629 F.3d at 88.


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California’s anti-SLAPP statute thus does not undermine the Federal

Rules. If a defendant’s anti-SLAPP action fails, Rules 12(b)(6) and 56 still

apply with full force. Newsham, 190 F.3d at 972. The statute operates in

California state courts alongside California’s analogs to Rules 12(b)(6)

and 56. See Cal. Civ. Proc. Code §§ 430.10, 437c(c); Makaeff, 736 F.3d at

1182-83. No conflict exists there. Likewise, the statute can apply in fed-

eral court without conflicting with Rules 12(b)(6) and 56. Id. at 1184.

The D.C. Circuit in Abbas broadly interpreted Rules 12(b)(6) and 56

as “preempt[ing]” state anti-SLAPP statutes, 783 F.3d at 1335 n.3, be-

cause “Federal Rules 12 and 56 answer the same question as the Anti-

SLAPP Act[].” Id. at 1336. But such a reading of the Federal Rules would

abridge the substantive rights embodied by anti-SLAPP statutes. “[C]iti-

zens . . . should not be stripped of their state’s free speech protections

whenever they step inside a federal court.” Makaeff, 736 F.3d at 1187.

This court should reject the D.C. Circuit’s view that the Federal Rules

preempt state law protections against meritless libel lawsuits, and adopt

instead the view of the First, Second, Fifth, and Ninth Circuits.


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C. Applying California’s anti-SLAPP statute achieves the Erie doctrine’s twin goals

Applying the anti-SLAPP statute would thus be consistent with the

Erie substance/procedure distinction. And it would also be consistent

with Erie’s purposes—discouraging forum shopping and avoiding inequi-

table administration of the law. Newsham, 190 F.3d at 973.

If Dr. Tobinick had filed suit in the California state court, the statute

would have applied. If Dr. Tobinick had filed in the Ninth Circuit—the

Circuit in which claims based on California law are most likely to be

filed—the statute would have applied. If this Court does not also apply

the statute, plaintiffs would have an incentive to forum-shop. “[I]f the

anti-SLAPP provisions are held not to apply in federal court, a litigant

interested in bringing meritless SLAPP claims would have a significant

incentive to shop for a federal forum.” Id.

And even if some cases can only be filed in this Court, so that forum-

shopping is not a concern, a decision by this Court not to apply the Cali-

fornia anti-SLAPP statute would lead to unequal treatment of litigants,

based solely on the happenstance of where the suit can be filed. Litigants

who file claims based on California libel law in the Ninth Circuit would


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be subject to the California anti-SLAPP statute. Litigants who file claims

based on the same statements under the same California libel law in the

Eleventh Circuit would not be subject to the California anti-SLAPP stat-

ute. This sort of lack of “uniformity in the administration of the law of

the State” (here, California), Erie R.R. Co. v. Tompkins, 304 U.S. 64, 75

(1938), is one of the vices that Erie sought to address.

CONCLUSION

Dr. Novella’s article is not commercial speech; rather, it is fully pro-

tected by the First Amendment. And California’s anti-SLAPP statute is

applicable in federal court, as the First, Second, Fifth, and Ninth Circuits

have held. The decision of the district court should therefore be affirmed.

Respectfully submitted, s/ Eugene Volokh UCLA School of Law Scott & Cyan Banister First Amendment Clinic 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 [email protected] Counsel for Amicus Curiae May 26, 2016


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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Federal

Rule of Appellate Procedure 32(a)(7)(B) and the Rules of this Court, be-

cause it contains 3,365 words as determined by the Microsoft Word word-

processing system used to prepare the brief, excluding the parts of the

brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Federal Rule

of Appellate Procedure 32(a)(5) and the type-style requirements of Fed-

eral Rule of Appellate Procedure 32(a)(6) because it has been prepared in

a proportionally spaced typeface using 14-point Century Schoolbook font

in Microsoft Word.



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CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2016, I electronically filed the fore-

going through the Court’s CM/ECF system. Notice of this filing will be

sent by e-mail to all CM/ECF-registered parties by operation of the

Court’s electronic filing system. I have caused this document to be sent

by mail to the following parties who prefer mail service:

Geoffrey Michael Cahen Quarles & Brady, LLP 1900 Glades Rd Ste. 355 Boca Raton, FL 33431-8548 Ian Clark Australian National University Research School of Biology Linnaeus Way Bldg. 134 Canberra, 2601 Australia ACT Jason Allan Fischer Fischer Law, PL 2 Biscayne Blvd. Ste. 2600 Miami, FL 33131 Coralie Graham University of Southern Queensland Dep’t of Health, Engineering & Sciences Baker St. Toowoomba, Queensland, 4350 Australia


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Jay Marshall Wolman Randazza Legal Group, PLLC 4035 S El Capitan Way Las Vegas, NV 89147



volokh - amici curiae brief in support of steven novella

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