Ninth Circuit Takes Sting Out of California Anti-SLAPP Law Again

An en banc panel of the US Court of Appeals for the Ninth Circuit further narrowed the protections available in federal court under California’s anti-SLAPP law, which provides an avenue for quickly disposing of meritless lawsuits that seek to chill First Amendment rights.

The ruling in Gopher Media LLC v. Melone extends a trend of Ninth Circuit decisions that have significantly limited the protections provided by California’s anti-SLAPP law and has three major implications for litigants:

• Forum selection matters more than ever, with California state court offering significantly stronger anti-SLAPP protections than federal court.
• The long-term viability of anti-SLAPP motions in federal court remains uncertain.
• Anti-SLAPP motions remain available in Ninth Circuit federal courts, and the potential for substantial attorney’s fee awards still makes them a valuable tool for defendants facing suits targeting their speech.

The opinion in a lawsuit that arose from a dispute over parking spots outside a California pizzeria held that district court denials of anti-SLAPP motions aren’t immediately appealable in federal court, overruling the contrary 2003 decision in Batzel v. Smith.

Now, defendants filing anti-SLAPP motions in federal proceedings may have to wait longer to vindicate their rights.

Decades-Long Saga

Gopher Media is the latest installment in a story that began in 1992, when the California legislature enacted the state’s anti-SLAPP statute, which allows defendants in such cases to file a special motion to strike at the outset of litigation and provides procedural protections.

Because anti-SLAPP motions may be filed only to strike claims arising under state rather than federal law, most anti-SLAPP litigation takes place in state court. But what happens when a California law claim is litigated in federal court?

In 1999, the Ninth Circuit held the statute applies in that circumstance. It since has struggled with questions about how to reconcile its provisions with the details of federal court practice. The court has stripped away many of the protections of the anti-SLAPP law that apply in state court, reasoning that they conflict with the Federal Rules of Civil Procedure.

Gopher Media Implications

This decision continues the erosion. The only question presented in Gopher Media was about interlocutory appeals. In its 2003 decision in Batzel, the Ninth Circuit held that a district court’s denial of an anti-SLAPP motion under California law is immediately appealable, as it is in state court.

The real action in Gopher Media is reflected in the two dueling concurring opinions regarding the broader question of whether California’s anti-SLAPP law should continue to apply in federal court at all.

Judge Mark Bennett, joined by Judge Consuelo Callahan, argued it should. In their view, the anti-SLAPP motion provides defendants with a “substantive right” in the form of a “claim for attorneys’ fees for plaintiffs’ abuse of the judicial process,” and “no federal rule controls or directly collides with that right.”

In contrast, Judge Daniel Bress—joined by Judges Daniel Collins, Kenneth Lee, and Patrick Bumatay—would have held that California’s anti-SLAPP law doesn’t apply in federal court at all.

They pointed out that the Ninth Circuit’s case law has gradually whittled away most core aspects of the statute because they conflict with federal procedural rules. The attorney’s fees provision is “all that really remains” of the anti-SLAPP law in federal court and concluded it is ultimately “a procedural device” that can’t apply in federal court under the Erie doctrine.

In an odd coincidence of timing, the Federal Circuit held in an opinion published on Oct. 15—less than a week after Gopher Media—that denials of California anti-SLAPP motions are immediately appealable under the collateral-order doctrine. The opinion cites Batzel favorably and reflects no awareness than the en banc Ninth Circuit just overruled it, so the Federal Circuit may grant rehearing and reconsider its decision to align with Gopher Media.

Key Takeaways

California litigants and their attorneys should think carefully about whether state or federal court is a more favorable forum. With the demise of interlocutory appeals in federal court, anti-SLAPP movants have lost one more key benefit of the law, along with the discovery stay and the heightened pleading standard. Yet those protections will continue to apply in California state court.

While defendants often seek to remove cases from state court to federal court, that calculus may flip for defendants planning to file anti-SLAPP motions. And counsel for plaintiffs who anticipate a potential motion may prefer to file in federal court when they can, to deprive defendants of that choice.

It’s also an open question how much longer this slimmed-down version of California’s anti-SLAPP law will apply in federal court. The broader legal landscape has shifted in a way that generally disfavors anti-SLAPP motions in federal court.

Informed in part by intervening US Supreme Court decisions, other circuits have held that state anti-SLAPP statutes don’t apply in federal court. Several Ninth Circuit judges across the ideological spectrum have urged the en banc court to join those courts. They may yet prevail, or the Supreme Court may take up the issue at some point—particularly if the square conflict that now exists between the Ninth Circuit and the Federal Circuit regarding interlocutory appeals persists.

Finally, when a federal court lawsuit in the Ninth Circuit involves California state law claims, an anti-SLAPP motion remains an option and offers the prospect of attorney’s fees to successful movants. Those fees may be substantial.

In California state court, the discovery stay and interlocutory appeal often limit the fees that may be incurred before an anti-SLAPP motion is definitively resolved. But those provisions don’t apply in federal court.

This creates the potential for something of a high-stakes gamble for plaintiffs: Proceed with discovery and keep their case moving forward or await resolution of the anti-SLAPP motion first.

The case is Gopher Media LLC v. Melone, 9th Cir., 24-2626, 10/9/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Josh Patashnik is partner in Perkins Coie in San Diego and is a former deputy solicitor general at the California Department of Justice.

Write for Us: Author Guidelines