The U.S. Court of Appeals for the Ninth Circuit has held that a person who brings and loses a special motion to strike under California’s Anti-SLAPP law has no right to an immediate appeal in federal court, although that same litigant would have such an appeal under California law. The effect of this holding, as found in Gopher Media LLC v. Melone, 2025 WL 2858761 (9th Cir., En Banc, Oct. 9, 2025), is that there is no longer an immediate appeal of right in the Ninth Circuit for unsuccessful Anti-SLAPP movants and this decision will presumably extend to other states within the Ninth Circuit as well.
Flashing back to 2003, the Ninth Circuit held in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), that a federal district court’s denial of an Anti-SLAPP motion was subject to an immediate appeal, just as if the case were in a California Superior Court. That was the law for the following 22 years. Then, in this case (Gopher Media LLC) in 2025, the Ninth Circuit reversed itself and eliminated that immediate appeal of right.
The facts of Gopher Media LLC are not important. This was a garden-variety Anti-SLAPP case that basically arose from a petty dispute over a 15-minute time limit on a parking space outside a “take-n-bake” pizza and pasta joint, and two adjoining business owners who couldn’t stand each other and apparently traded insults. In other words, just the type of case that the Ninth Circuit probably saw as beneath its dignity as a U.S. Court of Appeals which typically hears appeals of much more significant gravitas.
But when you get right down to it, the reasoning of the Gopher Media LLC opinion isn’t that important either. There is a majority opinion and two concurring opinions. The majority opinion jumps through some mental gymnastics, as a court’s reversal of its own position inevitably requires, to determine that something called the “collateral order doctrine” was wrongly decided in Batzel and thus that opinion should be overturned. There is a strong impression, however, that Batzel wasn’t reversed on technical grounds so much as a large number of Ninth Circuit judges were annoyed by having to hear Anti-SLAPP appeals ― considering that with an Anti-SLAPP case if there is not an immediate appeal, the litigation runs its normal course which means it probably settles and so there is never an appeal.
The more interesting discussion is to be found in the two concurring opinions. The concurring opinion by judges Bennett and Callahan points out that Anti-SLAPP laws create a substantive right in favor of the moving party. Under that view, the entire Anti-SLAPP law would apply in federal court under the so-called Erie Doctrine, which posits that in a diversity of citizenship case, state law controls substantive issues but federal law controls procedural issues. Further, by applying the full state Anti-SLAPP law in federal court, forum shopping to the federal courts by defamation plaintiffs would decrease since there would be no incentive to litigate the controversy in federal court as opposed to state court. In other words, judges Bennett and Callahan are implying that if the federal courts want to lessen the amount of Anti-SLAPP cases they end up hearing, the best way to do that is to simply apply the state Anti-SLAPP laws whole hog.
The other concurring opinion was by judges Bress, Collins, Lee and Bumatay, who take the exact opposite approach and argue that state Anti-SLAPP laws are purely procedural in nature and thus Anti-SLAPP motions should not be entertained in the federal courts at all. This opinion notes that by kicking out the right to immediate appeal, the only thing that remains of an Anti-SLAPP motion in the federal courts is the provision awarding mandatory attorneys fees to a successful moving party. Thus, it is easier and less confusing to simply disallow all Anti-SLAPP motions in federal courts as some of the other federal circuits have done.
This decision in Gopher Media LLC was neither unexpected or surprising as the tendency of the federal courts in general has been to severely restrict, if not eliminate entirely, the application of state Anti-SLAPP laws to the federal courts. What all this really means is that Congress should adopt Anti-SLAPP legislation that is applicable to the federal courts.
Over 600 years of Anglo-American jurisprudence has demonstrated one thing in spades: The courts do not fix themselves. The judiciary frequently allows problems to arise, to fester, and to become debilitating problems without doing anything to remediate those problems. At that point, the legislature must step in and fix the courts. Anti-SLAPP laws are an example of this. Abusive lawsuits (“SLAPP suits”) became a problem only because of the courts unwillingness to deal with them ― simply by treating them as any other lawsuit. The state legislatures thus forced reform upon the state courts in this area through Anti-SLAPP laws.
But the courts tend to dislike reform, and some state courts rebelled against Anti-SLAPP laws by attempting to limit their scope, which caused the states to amend their Anti-SLAPP laws to give those laws their intended impact. This decision of the Ninth Circuit, and that of other federal circuits which have similarly limited or disallowed Anti-SLAPP laws in federal courts, is their way of rejecting this judicial reform ― or to at least make Congress legislate in this area.
Congress should adopt Anti-SLAPP legislation for federal courts (it has been repeatedly introduced), but the continuing dysfunction of our Congress has thwarted that result even though at the state level Anti-SLAPP laws have proven to be quite bipartisan. So, at least for now, federal Anti-SLAPP legislation will have to wait.
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