First Amendment Cases and Scholarship

The Public Participation Project spent months drafting a balanced piece of legislation that provides excellent protection for First Amendment rights. Some of the sources used are listed here, including seminal cases about the First Amendment rights of petition and free speech, and the history of protections for those rights. Materials on federalism issues, civil procedure, and other considerations in drafting federal anti-SLAPP legislation are also listed.

Federal Cases

United States Supreme Court

1. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983). Allowing the National Labor Relations Board to enjoin baseless litigation where such litigation is retaliatory employment action because the First Amendment right to petition does not protect baseless litigation.

2. Branzburg v. Hayes, 408 U.S. 665 (1972). Refusing to create a reporter’s shield, partly because of the difficulty of defining the class of people such a shield would cover: “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer…just at much as of the large metropolitan publisher.”

3. Brown v. Western Railway of Alabama, 338 U.S. 294, 296 (1949). Holding that local requirements for meticulous pleadings may not be used to dismiss claims based on federally created rights.

4. California Transport v. Trucking Unlimited, 404 U.S. 508 (1972). Clarifying the Noerr-Pennington doctrine, holding that the right to petition extends to all departments of the government, not just to the courts, and that “sham” petitioning activity – those activities undertaken not to influence action but to impose costs and other burdens on opponents – are not protected under the Noerr-Pennington doctrine.

5. Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Interpreting 42 U.S.C. § 1988, which provides for fees in civil rights cases, and holding that while a plaintiff in a civil rights case should be awarded attorney’s fees upon prevailing in all but special circumstances, a court may award fees to a prevailing defendant only if the suit was frivolous, unreasonable or without foundation, without a requirement that the suit be brought in subjective bad faith.

6. City of Boerne v. Flores, 521 U.S. 507 (1997). Prohibiting Congress from abrogating state sovereign immunity using its Fourteenth Amendment enforcement powers unless Congress can show both that the states have engaged in a constitutional violation to be remedied and that the remedial law is congruent and proportional to that violation. For purposes of abrogation, the Court, not Congress, defines the scope of constitutional protections.

7. City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991). Enunciating the scope of protected petitioning activity, finding that direct petitioning and appeals to the public, including media campaigns designed to influence legislation, are protected activities and cannot be the basis of antitrust violations. The court also fully enunciated the “sham” exception first described in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., infra, by holding that activities are “legitimate” petitioning activities so long as they are genuinely aimed at influencing governmental outcomes, as opposed to undertaken as a means to impose expense and constraints on other parties.

8. Central Vermont Railway Co. v. White, 238 U.S. 507 (1915). Holding that states may follow their own practice in establishing rules of procedure even in suits arising under federal law, but may not do so where rules, even if called procedural, substantively affect a federal right.

9. Cooter & Gell v. Hartmarx, 496 U.S. 384 (1990). Holding that federal courts retain jurisdiction to hear collateral matters, including determinations of costs, fees and sanctions, when the underlying case is dismissed or concluded.

10. Dice v. Akron, Canton & Youngstown Railroad Co., 342 U.S. 359 (1952). In holding that a state court’s denial of a jury trial in a federal case was reversible error, held that federal procedure applies to state court where it is ‘part and parcel’ of the federal right at issue.

11. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). Holding that petitioning activity, so long it is not a sham, is immunized from antitrust law prosecution.

12. Edwards v. South Carolina, 372 U.S. 229 (1963). Holding that, in arresting, convicting and punishing those engaged in peaceful demonstrations against racial discrimination, the state had infringed the demonstrators’ First Amendment rights of free speech, free assembly and freedom to petition for redress of grievances.

13. Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308 (2005). Cases typically “arise under” federal law for Constitutional purposes when a plaintiff pleads a cause of action created by federal law, but where a state-law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities, federal court jurisdiction is warranted.

14. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002). Interpreting federal law to grant federal courts subject matter jurisdiction only over cases that raise a federal issue on the face of a well-pleaded complaint. A federal issue raised on defense or counterclaim is not sufficient to confer jurisdiction upon the federal courts.

15. Jinks v. Richland County, 538 U.S. 456 (2003). Upholding a federal law requiring state courts to toll state claims pending federal court resolution of related claims, as necessary and proper to the exercise of Congress’s power to constitute Article III courts and to assure that those courts fairly and efficiently exercise the judicial power of the United States.

16. United States v. Lopez, 514 U.S. 538 (1995). Striking down provisions of the Gun Free School Zones Act, because the Act neither regulated a commercial activity nor contained a requirement that punishable gun possession be connected in any way to interstate commerce. The Act therefore exceeded the authority of Congress to regulate commerce. To enact legislation under its Commerce powers, Congress must provide detailed findings of a piece of legislation’s relationship to interstate commerce, and such a relationship may not be overly tenuous or based on but-for causation.

17. McDonald v. Smith, 472 U.S. 479, 485 (1985). Holding that, although the value of the right of petition as an important aspect of self-government is beyond question, the Petition Clause does not provide absolute immunity for expressing libelous and damaging falsehoods in petitions to government officials. State law that allows damages for defamation to be recovered only if petitioner is shown to have acted with “malice,” as defined in terms consistent with New York Times Co. v. Sullivan provides adequate First Amendment protections; states need not provide absolute immunity for petitioning activity. First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition than to other statements.

18. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995). Recognizing that anonymous speech is part of an “honorable tradition of advocacy and dissent.”

19. Mesa v. California, 489 U.S. 121 (1989). Interpreting the federal official removal statute, 28 U.S.C. § 1446, infra, to require federal officials to raise federal claims on defense for federal courts to remove their cases to federal court.

20. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in the boycott; nonviolent protests are entitled to the protection of the First Amendment.

21. New York v. United States, 505 U.S. 144 (1992). Striking down provisions of the Low-Level Radioactive Waste Policy Amendments Act requiring states to take title to excess waste, and holding that although regulation of the interstate market in the disposal of low level radioactive waste is well within Congress’s Commerce power, and Congress could preempt entirely state regulation in the area, Congress may not commandeer the states’ legislative processes by directly compelling legislatures to enact and enforce a federal regulatory program, but must exercise authority directly upon individuals.

22. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Holding that application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is state action under the Fourteenth Amendment. Also holding that expression does not lose constitutional protection because it appears in the form of a paid advertisement, and that factual error is insufficient to warrant an award of damages for false statements unless actual malice – knowledge of or reckless disregard of falsity – is alleged and proved.

23. Pierce County v. Guillen, 537 U.S. 129 (2003). Upholding federal provision that prohibited the use of data collected pursuant to a federal highway law in state court proceedings as a valid exercise of Congress’s commerce power because the prohibition was aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce.

24. Printz v. United States, 521 U.S. 898 (1997). Striking down provisions of the Brady Gun Control Act that required state officials to conduct background checks on gun purchasers, and holding that principles of federalism preclude Congress from commandeering state executive branches to enact or administer a federal regulatory scheme.

25. Tennessee v. Davis, 101 U.S. 257 (1880). Holding that the Constitution authorizes the removal of both civil and criminal cases from state court to federal courts, and that upon removal of a case from a state court to federal court, the federal court should administer state laws to determine the outcome of the case.

26. Testa v. Katt, 330 U.S. 386 (1946). Holding that state courts may not refuse to hear cases brought under federal law without a good excuse, even when a state would prefer to allocate its resources to different uses.

27. United Mine Workers v. Pennington, 381 U.S. 657 (1965). Holding that joint efforts to influence public officials do not violate antitrust laws even though intended to eliminate competition.

28. United States v. Morrison, 529 U.S. 598 (2000). Striking down the Violence Against Women Act as exceeding Congress’s power under the Commerce Clause because the numerous findings regarding the serious impact of gender-motivated violence relied on a but-for causal chain of attenuated effects upon interstate commerce, which is an insufficient nexus to interstate commerce. Also holding that Congress could not enact the law under its Fourteenth Amendment enforcement powers because the Fourteenth Amendment prohibits only state action, not private conduct, and the act was to a large extent directed at private individuals. To the extent that the act did permissibly remedy a violation by the state, it was not congruent and proportional to that violation, exceeding Congress’s power in that respect as well.

29. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983). Holding that the “arising under” clause of the Constitution is an appropriate basis for the statutory grant of subject matter jurisdiction to actions by foreign plaintiffs under the Foreign Sovereign Immunities Act because every action against a foreign sovereign necessarily involves application of a body of substantive federal law, and accordingly arises under federal law within the meaning of Article III.

First Circuit

1. Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003). Holding that the Massachusetts anti-SLAPP statute is a “mere matter of procedure” and therefore not applicable in federal court.

Ninth Circuit

1. Mayes v. Leipziger, 729 F.2d 605 (9th Cir. 1984). Holding that, although the Federal Rules of Civil Procedure do not require courts to issue a statement explaining dismissal pursuant to Federal Rules 12 or 56, where a dismissal is without leave to amend, courts are encouraged to issue clear reasons or written findings for dismissal on the record.

2. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). Holding that federal courts must apply California’s anti-SLAPP law to state law claims tried in federal courts.

3. Restaino v. Bah (In re Bah), 321 B.R. 41 (B.A.P. 9th Cir. 2005). Holding that anti-SLAPP statute does not apply to matters involving federal law, particularly bankruptcy law.

4. Englert v. MacDonnell, No. 06-35531, 2009 U.S. App. WL 32559 (9th Cir. Jan. 7, 2009). Noting a potential conflict between the Oregon anti-SLAPP law and the Federal Rules of Civil Procedure, raising the question of whether the Oregon anti-SLAPP law’s heavy burden on the plaintiff to survive an anti-SLAPP motion creates a “direct collision” with Federal Rule of Civil Procedure 56(c) so as to preclude the law’s application in federal court.

5. Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F.Supp.2d 1127 (N.D. Cal. 1999). Holding that federal claims in federal court are not subject to California’s anti-SLAPP law.

State Cases

California

1. Averill v. Superior Court, 42 Cal. App. 4th 1170 (1996). Construing the California Anti-SLAPP statute and holding that the word “includes” in the statute means acts that are not listed in the statute may be protected; comments made in private, if made in connection with a public issue, are protected by the anti-SLAPP statute.

2. Barrett v. Rosenthal, 40 Cal. 4th 33 (2006). Limiting liability for Internet defamation, holding that Internet users and providers are immune from civil liability for reposting third party content on the Internet under the Communications Decency Act of 1996, 47 U.S.C. § 230.

3. Briggs v. Eden Council for Hope and Opportunity, 19 Cal. 4th 1106 (1999). Holding that the anti-SLAPP statute is to be construed broadly and covers any statement arising from petition or petition related activity, regardless of the issue involved.

4. Britts v. Superior Court, 145 Cal. App. 4th 1112 (2006). Holding that “good cause” for discovery under the anti-SLAPP law requires a showing that the specified discovery is necessary for the plaintiff to oppose the motion and is tailored to that end.

5. City of Cotati v. Cashman, 29 Cal. 4th 69 (2002). Holding the anti-SLAPP law does not require a defendant to prove the plaintiff’s intent to chill his constitutional rights.

6. Doctor’s Co. Ins. Services v. Superior Court, 225 Cal. App. 3d 1284 (2001). Holding that the greater good of an absolute litigation privilege bars claims based on subornation of perjury in a judicial or official proceeding. Holding that the greater good of an absolute litigation privilege bars claims based on subornation of perjury in a judicial or official proceeding.

7. DuPont Merck v. Superior Court, 78 Cal. App. 4th 562 (2000). Holding that the anti-SLAPP statute protects statements that were made before regulatory bodies, the medical profession, and the public about a pharmaceutical DuPont Merck was developing. Sparked a legislative amendment to the anti-SLAPP law exempting claims arising from commercial speech. Also noting in dicta that reasons for denial of a special motion to strike under California’s anti-SLAPP law should be put into a statement for the record.

8. Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002). Companion case to City of Cotati v. Cashman, supra, holding a SLAPP defendant need not demonstrate that the lawsuit was brought with the intent to chill the defendant’s exercise of constitutional speech or petition rights.

9. Flatley v. Mauro, 39 Cal. 4th 299 (2006). Interpreting the California anti-SLAPP law to protect only those activities in furtherance of constitutional rights, and therefore to not protect acts that are illegal as a matter of law. Extortionate speech couched in legal language as a settlement offer is therefore not protected.

10. Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728 (2003). Holding that malicious prosecution claims are subject to the anti-SLAPP law even though such claims are exempt from the California litigation privilege.

11. Ketchum v. Moses, 24 Cal. 4th 1122 (2001). Holding that any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees, including fees incurred in the preparation and maintenance of a fee motion.

12. Lien v. Lucky United Properties Inv., Inc., 163 Cal. App. 4th 620 (2008). Expressing reservations about DuPont Merck v. Superior Court’s imposition of a requirement for a statement of decision when a trial court grants an anti-SLAPP motion because the law itself has no such requirement and the DuPont Merck court did not explain reasons for departing from the general rule that motions do not require statements of decision.

13. Liu v. Moore, 69 Cal. App. 4th 745 (1999). Holding that a SLAPP plaintiff cannot avoid liability for defendant’s attorney’s fees by dismissing its claim prior to the hearing on defendant’s anti-SLAPP motion. The court must still decide the merits of the anti-SLAPP motion in order to determine whether the defendant is the prevailing party and therefore entitled to fees.

14. Salma v. Capon, 161 Cal. App. 4th 1275 (2008). Prohibiting amendments to the claim after the anti-SLAPP motion has been filed because allowing such amendments would undermine the purpose of the statute.

15. S.B. Beach Properties v. Berti, 39 Cal. 4th 374 (2006). Barring a defendant in a SLAPP from seeking attorney’s fees and costs if the suit is voluntarily dismissed prior to the filing of an anti-SLAPP motion.

16. Silberg v. Anderson, 50 Cal. 3d 205 (1990). Refusing to read an “interest of justice” test into the California litigation privilege, holding that the privilege applies regardless of whether statements made were made to achieve personal objectives or to gain advantage, and not in the interest of justice.

17. Simmons v. Allstate Insurance Co., 92 Cal. App. 4th 1068 (2001). Prohibiting a SLAPP plaintiff from amending the claim once the court finds the defendant’s prima facie showing has been met, because to allow amendments would undermine the statute by providing the pleader a ready escape from the anti-SLAPP law’s quick dismissal remedy.

18. Tendler v. www.jewishsurvivors.blogspot.com, 164 Cal. App. 4th 802 (2008). Interpreting the anti-SLAPP law to apply only in causes of action requesting “relief,” and that therefore parties on the receiving end of subpoena requests may not invoke the law to dispose of those requests. AB 2433, 2008 Cal. Stat. 742 addressed the gap in the anti-SLAPP law created by Tendler by amending CAL. CIV. PROC. CODE §§ 1987.1-2 to allow parties or non-parties of SLAPPs brought outside California to quash subpoenas issued in California litigation.

19. White v. Lieberman, 103 Cal. App. 4th 210 (2002). Holding that an order declaring the anti-SLAPP motion to be moot is the equivalent of a denial and is appealable.

20. Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811 (2002) (reversed in part by CAL. CIV. PROC. CODE § 425.16(b)(3)). Holding the denial of an anti-SLAPP motion in the underlying action establishes that there was probable cause to support the action, thus precluding a suit for malicious prosecution. Also requiring the plaintiff to demonstrate that the claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment to survive the anti-SLAPP motion.

Colorado

1. Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984). Creating anti-SLAPP doctrine, requiring Colorado courts to treat a motion to dismiss based upon a claim that the action arose from protected First Amendment activity as a motion for summary judgment.

Delaware

1. Doe v. Cahill, 884 A.2d 451 (Del. Supr. 2005). Plaintiff seeking identity of an anonymous poster must support his underlying claim with facts sufficient to defeat a summary judgment motion.

New Jersey

1. Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. 2001). Plaintiff must make an effort to notify the anonymous poster that he or she is the subject of a subpoena or application for a disclosure order, and give a reasonable time for the poster to file opposition; must set forth the specific statements that are alleged to be actionable; and must produce sufficient evidence to state a prima facie cause of action. If this showing is made, the court balances the strength of that prima facie case against the defendant’s First Amendment right to speak anonymously before deciding whether to quash the subpoena.

West Virginia

1. Harris v. Adkins, 432 S.E. 2d 549 (W. Va. 1993). Limiting the holding of Webb v. Fury by holding that, pursuant to the U.S. Supreme Court’s decision in McDonald v. Smith, petitioning activity involving intentional and reckless falsehoods is not absolutely privileged.

2. Webb v. Fury, 282 S.E.2d 28 (W. Va. 1981). Holding that the constitutional right of petitioning is absolutely immune from civil liability in Virginia.

Legislative Materials

Federal Bills and Laws

1. 11 U.S.C. § 523(a). Provides for non-dischargeable debts in bankruptcy procedures.

2. 11 U.S.C. § 1328. Provides for non-dischargeable debts under 11 U.S.C. §§ 7 and 13.

3. 15 U.S.C. § 6600 (1999). Year 2000 Readiness and Responsibility Act. Creates procedures for all claims in federal and state court for lawsuits brought against companies for computer failures caused by the year 2000 date change. Does not preempt state laws where such laws are more protective to the defendants in Y2K lawsuits than the federal law.

4. 26 U.S.C. § 162(a). Allows deductions from income tax for “ordinary and necessary expenses” incurred by any trade or business. 26 U.S.C. §§ 162(b)-(q) specify expenses that may not be deducted under § 162(a).

5. 28 U.S.C. § 1658(a). Sets the statute of limitations for federal civil actions at no later than four years after the cause of action accrues.

6. 28 U.S.C. § 1442. Establishes general removal jurisdiction.

7. 28 U.S.C. § 1446. Allows federal officials to remove cases brought against them in state court to federal court.

8. The Free Flow of Information Act of 2007, S. 2035, 110th Cong. (2007). Would provide conditions for the federal compelled disclosure of information by certain persons connected with the media. Would define journalism to mean the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

9. The Free Speech Protection Act of 2008, S. 2977, 110th Cong. (2008). Would create a federal cause of action to determine whether defamation exists under United States law in cases in which defamation actions have been brought in foreign courts against United States persons on the basis of publications or speech in the United States.

California Law

1. CAL. CIV. PROC. CODE § 425.16. Anti-SLAPP Statute. One of the most comprehensive anti-SLAPP laws in the country. Provides procedural protections for petition activities and speech and conduct in connection with a public issue. Provides for a method of dismissal, a discovery stay pending decision on the motion, and fee shifting provisions to protect defendants.

2. CAL. CIV. PROC. CODE § 425.17. Exempts from the anti-SLAPP law public interest litigation and claims arising from commercial speech.

3. CAL. CIV. PROC. CODE §425.18. SLAPPbacks. Prohibits the use of certain provisions of the anti-SLAPP law against a SLAPPback brought in the form of a malicious prosecution claim.

4. CAL. CIV. CODE § 47. Defines privileged publication or broadcast and provides immunity for statements in litigation or other official proceedings against all tort actions except malicious prosecution.

Rules

1. FED. R. CIV. P. 11. Requires attorneys and unrepresented parties to certify that pleadings are based in fact, not brought solely to harass, intimidate or waste time, and are based on existing law or a non-frivolous argument for changing the law. Allows a court to impose monetary and non-monetary sanctions for violations.

2. FED. R. CIV. P. 12(b). Provides the seven reasons a party may move for dismissal prior to trial: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

3. FED. R. CIV. P. 52(a)(3). Provides that courts need not set forth the reasons for dismissals granted or denied under Federal Rules 12 and 56.

4. FED. R. CIV. P. 56. Provides the procedural rules for a motion for summary judgment.

Academic Articles, Books and Model Bills

1. Jerome Braun, Increasing SLAPP Protection: Unburdening the Right of Petition in California, 32 U.C. DAVIS L. REV 965 (1998-1999). Comprehensive overview of California anti-SLAPP legislation and history, with thoughtful suggestions for improvement and accompanying commentary.

2. CASP, HALT, ET AL., THE CITIZEN PARTICIPATION IN GOVERNMENT ACT OF 1995. Draft federal anti-SLAPP law, largely premised on George Pring and Penelope Canan’s Model Bill, infra.

3. JIM DEMINT AND J. DAVID WOODARD, WHY WE WHISPER (Rowman and Littlefield Publishers, Inc. 2008). Conservative perspective about the use of SLAPPs. Reviews SLAPPs that have been brought against conservative causes and suggests solutions to end SLAPPs, including fee-shifting provisions for prevailing SLAPP defendants.

4. Michael Froomkin, Building the Bottom Up from the Top Down (February 6, 2009). University of Miami Legal Studies Research Paper No. 2009-02.

5. Stephen Kling, Missouri’s New Anti-SLAPP Law, JOURNAL OF THE MISSOURI BAR, Vol. 61, 113 (May-June 2005). Review of the Missouri anti-SLAPP law.

6. Lisa Litwiller, A SLAPP in the Face: Why Principles of Federalism Suggest that Federal District Courts Should Stop Turning the Other Cheek. Examines the nexus between state and federal law where SLAPPs are tried in a federal district court sitting in diversity.

7. Laura Long, SLAPPing Around the First Amendment: An Analysis of Oklahoma’s Anti-SLAPP Statute and Its Implications on the Right to Petition, 60 OK. L. REV. 421 (2007). Examines Oklahoma’s somewhat narrow SLAPP protections and suggests improvements.

8. Calvin Massey, Two Zones of Prophylaxis: The Scope of the Fourteenth Amendment Enforcement Power, 76 GEO. WASH. L. REV. 1, 5 (2007). Reviews the changes in Congress’s Fourteenth Amendment enforcement powers in the wake of City of Boerne v. Flores, supra.

9. Sean McAllister, SLAPP Resource Center, The Citizen Participation Act of 200_ (unpublished draft, on file with the Public Participation Project).

10. Jeff McGoff, Exploring the Boundary of the Noerr-Pennington Doctrine in the Adjudicative Process, 34 U. MEM. L. REV. 429 (2004). Good short summary of the Noerr-Pennington Doctrine and its limitations.

11. MEDIA LIBEL LAW: 50-STATE SURVEY. (Media Law Resource Center, Inc., ed.,). Excellent brief review of media libel law in each state and territory. New edition published every year. See for more information about state immunity laws.

12. Wendy Parmet, Issues State Courts Face When Considering Federal Preemption of State Court Procedures: An Analysis for State Judges, 2002 Forum for State Court Judges, (2002).

13. GEORGE W. PRING AND PENELOPE CANAN, SLAPPS: GETTING SUED FOR SPEAKING OUT (Temple University Press 1996). Pring and Canan coined the term “SLAPP” and were the first to research and document the phenomenon. This book provides an overview of SLAPPs, a review of state legislation existing at publication, and a model bill.

14. PRING AND CANAN MODEL BILL, in PRING AND CANAN, supra, at 201-220. This model bill provided the structure and much of the content for this draft bill.

15. Rory Ryan, No Welcome Mat, No Problem? Federal-Question Jurisdiction after Grable, 80 ST. JOHN’S L. REV. 621 (2006). Explores the Supreme Court historical jurisprudence about jurisdictional issues leading up to the Grable decision, which affirmed that federal courts may constitutionally have jurisdiction over state law claims, even where no federal cause of action is alleged.

16. Laura Sager and Stephen Cohen, How the Income Tax Undermines Civil Rights Law, 75 S.CAL. L. REV. 1075 (2000), available at http://papers.ssrn.com/paper.taf?abstract_ID=234760. Informative discussion of the relationship between tax law and civil rights remedies.

17. Kathryn Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on its Operation and Scope, 33 LOY L.A. L. REV. 801 (2000). Comprehensive overview of the state of the California anti-SLAPP law as of 2000, with a discussion of George Pring and Penelope Canan’s recommendations to the California Judicial Council for improvements on the law.

18. THE SOCIETY OF PROFESSIONAL JOURNALISTS AND BAKER & HOSTETLER LLP, A UNIFORM ACT LIMITING STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION: GETTING IT PASSED (2004). Extremely thoughtful model state bill with notes on the reasoning behind the bill’s provisions and suggestions for passing legislation.

19. David Schwartz, The Federal Arbitration Act and the Power of Congress over State Courts, 83 OR. L. REV. 541, 545 (2005). Discussion of Congress’s limited ability to regulate state court procedure.

20. Smith, “Shall Make No Law Abridging . . .”: An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1154-1183 (1986).