Fifth Circuit Confirms Louisiana Anti-SLAPP Law Does Not Apply in Federal Court
Can defendants still rely on Louisiana's anti-SLAPP statute when a defamation or free speech dispute lands in federal court?
The Fifth Circuit recently affirmed in Sahs v. Loyola University New Orleans that Louisiana's anti-SLAPP procedure does not apply in federal court.
For businesses and media organizations facing speech-related claims, the ruling means defense strategies may depend on whether a case proceeds in state or federal court.
Background: Anti-SLAPP Statutes and Louisiana Article 971
SLAPP suits — Strategic Lawsuits Against Public Participation — are claims that may chill a defendant’s exercise of First Amendment rights. Typical SLAPP lawsuits involve a defamation or tortious-interference claim that can burden the defendant with litigation costs and discovery obligations.
To combat these suits, most states have enacted anti-SLAPP statutes, providing an early procedural mechanism to dismiss meritless speech-related claims before the parties incur the full cost of litigation. Louisiana’s version is Article 971 of the Code of Civil Procedure. Under Article 971, a defendant in a suit stemming from acts that involve the right of petition or free speech in connection with a public issue may file a special motion to strike the plaintiff’s cause of action.
The statute uses a burden-shifting framework. The defendant must first prove that the statute covers the conduct at issue. Once the defendant satisfies that threshold, the burden shifts to the plaintiff to demonstrate a probability of success on the claim. If the plaintiff cannot meet that standard, the claim is stricken.
Article 971 also includes several procedural features that make it an attractive defense tool. The statute requires the court to award attorney’s fees and costs to the prevailing party. It imposes a 90-day deadline for filing the motion, subject to extension for good cause. And it stays discovery while the motion is pending, with limited exceptions for discovery the court deems necessary to resolve the motion.
Fifth Circuit Ruling on Louisiana’s Anti-SLAPP Law
The Fifth Circuit held that Louisiana's anti-SLAPP procedure conflicts with the Federal Rules of Civil Procedure and cannot be used in federal court.
The court followed its prior approach in Klocke v. Watson and similar decisions, finding that state anti-SLAPP procedures cannot displace the federal pleading and summary judgment framework.
The court emphasized two features of Louisiana’s Article 971 that it found inconsistent with federal procedure:
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- The statute requires a lower showing by the party seeking dismissal than the federal Rule 56.
- Its automatic discovery stay conflicts with the federal preference for allowing discovery before summary judgment is decided.
The ruling adds to a longstanding split among federal appellate courts. The First and Ninth Circuits have allowed certain state anti-SLAPP statutes to operate in federal court. The Second, Fifth, D.C. and Eleventh Circuits have concluded that those statutes conflict with federal procedural rules.
The Ruling’s Impact on Free Speech Lawsuits in Louisiana
For defendants in federal court, the decision eliminates Article 971 as a procedural tool in federal diversity litigation. Defendants facing defamation, business-disparagement, or other speech-related tort claims in Louisiana federal courts may no longer seek the accelerated merits screen, discovery stay or mandatory fee-shifting that Article 971 provides. Defense strategy must rely on the tools available under the Federal Rules, principally Rule 12(b)(6) and Rule 56.
Federal court becomes a more favorable forum for plaintiffs who face potential Article 971 exposure. A plaintiff filing in federal court — or choosing not to oppose removal — avoids the risk of an early merits test, a discovery stay and a fee award under Article 971.
The ruling adds a concrete variable to forum-selection calculations in cases where diversity jurisdiction exists. Defendants who want the benefit of Article 971’s early dismissal mechanism, discovery protections and fee-shifting leverage may prefer to litigate in Louisiana state court when removal is optional or when viable remand arguments exist. Plaintiffs may prefer federal court to avoid those same features. In state court, Article 971 remains available unless some other source of law forecloses it.
Next Steps
Organizations facing speech-related claims should evaluate anti-SLAPP issues early, particularly when litigation spans multiple jurisdictions.
Key considerations include:
- How differing state laws may affect litigation risk and defense strategy
- Whether the case is likely to proceed in state or federal court
- Which state's law governs the underlying claims
The Fifth Circuit's latest ruling serves as a reminder that forum selection and choice-of-law questions can be just as important as the merits of the underlying claim when speech-related litigation crosses state lines.
Contact Dakota Stephens, Mary Ellen Roy or any member of the Phelps Litigation or Media and First Amendment Law teams with questions or for advice and guidance.
