Jason Van Dyke. Courtesy photo

A group of 40 media organizations, including The New York Times and The Washington Post, have filed an amicus brief with the U.S. Court of Appeals for the Fifth Circuit urging them to allow civil litigants to use Texas’ Anti-SLAPP statute to protect themselves against defamation claims filed in federal—not only state—courts.

The issue was raised in Van Dyke v. Retzlaff, a bitter fight between a lawyer and his online critic. Denton attorney Jason Van Dyke filed a $100 million lawsuit against Thomas Christopher Retzlaff in a state district court. In that lawsuit, Van Dyke claimed he was fired from a law firm because Retzlaff’s internet postings accused him of being a “Nazi” and “white supremacist.”

Retzlaff later removed the suit to federal court and moved to dismiss it under the Texas Citizens Participation Act (TCPA)—a law passed by the Texas Legislature in 2011 that allows judges to quickly dismiss cases that infringe on free-speech rights and forces a plaintiff to pay the defendant’s court costs.

In July, U.S. District Judge Amos Mazzant of Sherman denied Retzlaff’s motion to dismiss, ruling that the Fifth Circuit has yet to address whether the TCPA applied in federal court. Specifically, Mazzant noted that the Fifth Circuit has yet to perform a so-called Erie analysis on the matter, which calls for a determination on whether a state law is procedural of substantive. State procedural rules are not applied in federal court. If the law is held to be substantive, the court then determines whether it conflicts with federal law—and if it does, then federal law applies.

The amicus brief, filed by The Reporters Committee for Freedom of the Press and joined by 39 other media organizations, is pushing the Fifth Circuit to follow the First and Ninth Circuits, who have both ruled that state Anti-SLAPP statutes apply in federal court. Conversely, the D.C. Circuit and the 10th Circuit have ruled that state Anti-SLAPP laws do not apply in federal court.

“The issue presented in this case—whether the TCPA may be applied in federal court—has potentially broad ramifications for amici, who depend on the protections of the TCPA and similar anti-SLAPP statutes to avoid the costs and burden of litigating meritless claims that infringe their First Amendment rights,” according to the media groups brief. “Amici write to emphasize that anti-SLAPP protections apply to a wide range of speech important to the democratic process and that the TCPA should apply to strategic lawsuits against public participation brought in federal court.”

Tom Leatherbury, a partner in the Dallas office of Vinson & Elkins who represents the media organizations in the brief, believes the case could be a crucial one for defending freedom of the press in federal courts within the Fifth Circuit’s jurisdiction, among other issues.

“It’s an important issue for the media groups because so many cases are filed against them in federal court, you want the same remedies in state and federal court so plaintiffs can’t forum shop,” Leatherbury said.

Reached by email, Van Dyke noted that the media amici filed a substantially similar amicus brief before the Fifth Circuit in Rudkin v. Roger Beasley Imports, a case in which a Western District of Texas judge also ruled that the Texas Anti-SLAPP statute did not apply to a civil rights case. Van Dyke also noted that the same issue was also raised in Klocke v. University of Texas at Arlington, a case that was argued before the Fifth Circuit in September.

“If the Fifth Circuit determines that the TCPA applies in federal court, it will make no difference in the outcome of my case,” Van Dyke said. “The evidence clearly demonstrates that I can prove more than a prima facie case against him on my claims for defamation, tortious interference with contract, and intrusion on seclusion. Mr. Retzlaff’s actions against me fall far outside the scope of activities that are protected by the First Amendment or which are worthy of such protection.”

Jeffrey Dorrell, a Houston attorney who represents Retzlaff, was happy to have the amici support for the appeal.

“We are obviously pleased to have such important and powerful amicus support for our position that the Texas anti-SLAPP statue applies in federal court,” Dorrell said. “It would be bad policy if litigants could avoid a Texas law passed by a unanimous vote of both houses of the legislature simply by shopping for a federal court to hear their case. We believe the Fifth Circuit will join the majority of other federal appeals courts and reverse.”