The U.S. Court of Appeals for the Ninth Circuit historically has allowed litigants to use California’s robust anti-SLAPP statute in federal courts to obtain an early out from lawsuits that improperly infringe on the First Amendment rights of free speech and petition. See CoreCivic v. Candide Group LLC, 46 F.4th 1136 (9th Cir. 2022). Despite the Ninth Circuit confirming this position in 2022, the question of whether California’s anti-SLAPP statute will continue to apply in federal courts remains without a definitive answer.

On Nov. 5, 2024, a Ninth Circuit panel directed parties to an appeal to file supplemental briefing on whether their case should be heard en banc to reconsider whether California’s anti-SLAPP statute applies in federal courts. See Gopher Media LLC v. Melone, Case No. 24-2626, DE 49.1 (9th Cir. Nov. 5, 2024). One development that could shape that decision is whether Congress passes, and the president signs, a federal anti-SLAPP law. The Ninth Circuit has previously based its willingness to apply California’s anti-SLAPP law in federal courts on the absence of a “direct conflict” with federal legislation. See CoreCivic, 46 F.4th 1140-42. That could soon change.