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No. 15-14889
IN THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
____________________________________________

EDWARD LEWIS TOBINICK, MD, A Medical Corporation,

d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY; INR PLLC,
d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY;
EDWARD TOBINICK, an individual,
Plaintiffs-Appellants,
- v. STEVEN NOVELLA, an individual; SOCIETY FOR SCIENCEBASED MEDICINE, INC.; SGU PRODUCTIONS, LLC, a
Connecticut limited liability company,
Defendants-Appellees.
____________________________________________

On Appeal from a Final Judgment of the

United States District Court for the Southern District of Florida
Case No. 9:14-cv-80781-RLR
____________________________________________

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

ON BEHALF OF PROFS. GREGORY DOLIN, HENRY GREELY,
DAVID HYMAN, ABIGAIL MONCRIEFF, AND NATALIE RAM,
AND THE CENTER FOR MEDICINE AND LAW
IN SUPPORT OF DEFENDANT-APPELLEE
____________________________________________

Eugene Volokh
UCLA School of Law
Scott & Cyan Banister
First Amendment Clinic
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu

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CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
In addition to those listed in Appellants Opening Brief and Appellees
Brief, the following persons (none of whom are corporations) have an interest in the outcome of this case:
Volokh, Eugene, as counsel for proposed amici.
The proposed amici:
Prof. Gregory Dolin, University of Baltimore School of Law.
Prof. Henry Greely, Stanford Law School.
Prof. David Hyman, University of Illinois College of Law.
Prof. Abigail Moncrieff, Boston University School of Law.
Prof. Natalie Ram, University of Baltimore School of Law.
The Center for Medicine and Law at University of Baltimore School of
Law, a public institution of the State of Maryland.

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MOTION
Prof. Gregory Dolin, M.D., is the director of the Center for Medicine
and Law and Associate Professor of Law at University of Baltimore
School of Law.
Prof. Henry Greely is Director of the Center for Law and the Biosciences, Director of the Stanford Program in Neuroscience and Society,
Professor (by courtesy) of Genetics at Stanford School of Medicine, Chair
of the Steering Committee of the Center for Biomedical Ethics, and Diane
F. and Kate Edelman Johnson Professor of Law at Stanford Law School.
Prof. David Hyman, M.D., is the director of the Epstein Program in
Health Law and Policy and the H. Ross and Helen Workman Chair in
Law and Professor of Medicine at the University of Illinois.
Prof. Abigail Moncrieff is Associate Professor of Law at Boston University School of Law, where she specializes in, among other things, law
and medicine.
Prof. Natalie Ram is the associate director of the Center for Medicine
and Law and Assistant Professor of Law at University of Baltimore
School of Law.

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The individual amici have all written extensively on the intersection

of law and medicine.
The Center for Medicine and Law, founded in July 2011, is the first
center in the nation to focus on collaboration between medicine and law
and to serve as an objective and informative resource for health-related
professions, policymakers, the media, the public and other academic institutions with similar interests. Among other things, the center sponsors
conferences, research scholarship and educational programs on a variety
of topics at the intersection of medicine and law.
Amici have a deep interest in the freedom of debate and criticism on
medical matters; and their experience with law and medicine may provide a helpful perspective for this Court to consider. The arguments in
this brief are aimed at broadly protecting the free speech of commentators about medicine generally, and not just of defendants in particular.
The arguments are complementary to the arguments in defendants brief,
but not redundant of those arguments. Proposed amici therefore hope
that the arguments will assist the Court in deciding this case.

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Based on the above, proposed amici move this court to accept the amici
curiae brief submitted together with this motion. Plaintiff has consented
to the filing of this brief, but defendants have declined to consent.
Dated: May 26, 2016
s/ Eugene Volokh
Attorney for Proposed Amici Curiae
Law Professors

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CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2016, I electronically filed the foregoing through the Courts CM/ECF system. Notice of this filing will be
sent by e-mail to all CM/ECF-registered parties by operation of the
Courts electronic filing system. I have caused this document to be sent
by mail to the following parties who prefer mail service:
Geoffrey Michael Cahen
Quarles & Brady, LLP
1900 Glades Rd Ste. 355
Boca Raton, FL 33431-8548
Ian Clark
Australian National University
Research School of Biology
Linnaeus Way Bldg. 134
Canberra, 2601
Australia ACT
Jason Allan Fischer
Fischer Law, PL
2 Biscayne Blvd. Ste. 2600
Miami, FL 33131
Coralie Graham
University of Southern Queensland
Dept of Health, Engineering & Sciences
Baker St.
Toowoomba, Queensland, 4350
Australia

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Jay Marshall Wolman

Randazza Legal Group, PLLC
4035 S El Capitan Way
Las Vegas, NV 89147

s/ Eugene Volokh
Counsel for Amicus Curiae
May 26, 2016

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No. 15-14889
IN THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
____________________________________________

EDWARD LEWIS TOBINICK, MD, A Medical Corporation,

d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY; INR PLLC,
d/b/a INSTITUTE OF NEUROLOGICAL RECOVERY;
EDWARD TOBINICK, an individual,
Plaintiffs-Appellants,
- v. STEVEN NOVELLA, an individual; SOCIETY FOR SCIENCEBASED MEDICINE, INC.; SGU PRODUCTIONS, LLC, a
Connecticut limited liability company,
Defendants-Appellees.
____________________________________________

On Appeal from a Final Judgment of the

United States District Court for the Southern District of Florida
Case No. 9:14-cv-80781-RLR
____________________________________________

PROPOSED BRIEF OF AMICI CURIAE

PROFS. GREGORY DOLIN, HENRY GREELY, DAVID HYMAN,
ABIGAIL MONCRIEFF, AND NATALIE RAM, AND
THE CENTER FOR MEDICINE AND LAW
IN SUPPORT OF DEFENDANT-APPELLEE
____________________________________________

Eugene Volokh
UCLA School of Law
Scott & Cyan Banister
First Amendment Clinic
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu*
* Counsel would like to thank Artin Afkhami, Elizabeth Arias, and
Eugene Lim, UCLA School of Law students who worked on this
brief.

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CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
In addition to those listed in Appellants Opening Brief and Appellees
Brief, the following persons (none of whom are corporations) have an interest in the outcome of this case:
Volokh, Eugene, as counsel for proposed amici.
The proposed amici:
Prof. Gregory Dolin, University of Baltimore School of Law.
Prof. Henry Greely, Stanford Law School.
Prof. David Hyman, University of Illinois College of Law.
Prof. Abigail Moncrieff, Boston University School of Law.
Prof. Natalie Ram, University of Baltimore School of Law.
The Center for Medicine and Law at University of Baltimore School of
Law, a public institution of the State of Maryland.

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TABLE OF CONTENTS
Certificate of Interested Persons and Corporate Disclosure
Statement ............................................................................................... i
Table of Contents ......................................................................................ii
Table of Authorities ................................................................................. iii
Interest of Amici Curiae ............................................................................ 1
Summary of Argument .............................................................................. 3
Argument ................................................................................................... 5
I. Dr. Novellas speech is not commercial speech .................................... 5
II. Californias anti-SLAPP statute applies in federal court .................. 11
A. Californias anti-SLAPP statute is part of Californias
substantive libel law and thus applies in federal court ................ 12
B. Californias anti-SLAPP statute does not conflict with the
Federal Rules ................................................................................. 15
C. Applying Californias anti-SLAPP statute achieves the Erie
doctrines twin goals ....................................................................... 17
Conclusion ............................................................................................... 18
Certificate of Compliance ........................................................................ 19
Certificate of Service ............................................................................... 20

ii

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TABLE OF AUTHORITIES
Cases
Abbas v. Foreign Policy Grp., 783 F.3d 1328 (D.C. Cir. 2015) ... 12, 15, 16
Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014) ...................................... 11
All Underwriters v. Weisberg, 222 F.3d 1309 (11th Cir. 2000) .............. 13
Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ...................................... 14
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) ..................... 7, 8
Commodity Trend Serv., Inc. v. Commodity Futures Trading
Commn, 149 F.3d 679 (7th Cir. 1998) ................................................. 8
Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.
1982) .................................................................................................... 13
DC Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013).......... 14
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ....................................... 18
Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010) .......................... 11, 13, 15
Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics, 859
F. Supp. 1521 (S.D.N.Y. 1994) ........................................................ 8, 10
Henry v. Lake Charles Am. Press, 566 F.3d 164 (5th Cir. 2009) ............ 11
Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d 1254
(11th Cir. 2011) ................................................................................... 11
Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729 (7th
Cir. 2015)............................................................................................. 11
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ................................ 6
Kurz v. Syrus Sys., 221 Cal. App. 4th 748 (2013) ................................... 13
iii

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Makaeff v. Trump Univ., 736 F.3d 1180 (9th Cir. 2013) ............ 14, 15, 16
Nunez v. Pennisi, 241 Cal. App. 4th 861 (2015) ..................................... 13
Riley v. Natl Fedn for the Blind, 487 U.S. 781 (1988)............................. 9
Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014)........... 12
Schaumburg v. Citizens for a Better Envt, 444 U.S. 620 (1980) .............. 9
Servicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc.,
145 F.3d 463 (1st Cir. 1998) ............................................................... 13
Smith v. California, 361 U.S. 147 (1959) .............................................. 6, 7
United States ex rel. Newsham v. Lockheed Missiles & Space Co.,
190 F.3d 963 (9th Cir. 1999) ............................................. 11, 14, 16, 17
Univ. of Ala. Bd. of Trustees v. New Life Art, Inc., 683 F.3d 1266
(11th Cir. 2012) ..................................................................................... 7
World Wrestling Fedn Entmt, Inc. v. Bozell, 142 F. Supp. 2d 514
(S.D.N.Y. 2001) ................................................................................. 8, 9
Statutes
28 U.S.C. 2072 ...................................................................................... 15
Cal. Civ. Proc. Code 425.16(a) .............................................................. 14
Cal. Civ. Proc. Code 430.10 .................................................................. 16
Cal. Civ. Proc. Code 437c(c) .................................................................. 16
Rules
Fed. R. Civ. P. 11 ..................................................................................... 12
Fed. R. Civ. P. 12(b)(6) .................................................................. 4, 15, 16
iv

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Fed. R. Civ. P. 56 ........................................................................... 4, 15, 16

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INTEREST OF AMICI CURIAE1

Prof. Gregory Dolin, M.D., is the director of the Center for Medicine
and Law and Associate Professor of Law at University of Baltimore
School of Law.
Prof. Henry Greely is Director of the Center for Law and the Biosciences, Director of the Stanford Program in Neuroscience and Society,
Professor (by courtesy) of Genetics at Stanford School of Medicine, Chair
of the Steering Committee of the Center for Biomedical Ethics, and Diane
F. and Kate Edelman Johnson Professor of Law at Stanford Law School.
Prof. David Hyman, M.D., is the director of the Epstein Program in
Health Law and Policy and the H. Ross and Helen Workman Chair in
Law and Professor of Medicine at the University of Illinois.

No party or partys counsel has authored this brief in whole or in

part, or contributed money that was intended to fund preparing or submitting the brief. No person has contributed money that was intended to
fund preparing or submitting the brief, except that UCLA School of Law
paid the expenses involved in filing this brief. Defendants-appellees have
consented to the filing of this brief, but plaintiffs-appellants have not.
1

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Prof. Abigail Moncrieff is Associate Professor of Law at Boston University School of Law, where she specializes in, among other things, law
and medicine.
Prof. Natalie Ram is the associate director of the Center for Medicine
and Law and Assistant Professor of Law at University of Baltimore
School of Law.
The individual amici have all written extensively on the intersection
of law and medicine.
The Center for Medicine and Law, founded in July 2011, is the first
center in the nation to focus on collaboration between medicine and law
and to serve as an objective and informative resource for health-related
professions, policymakers, the media, the public and other academic institutions with similar interests. Among other things, the center sponsors
conferences, research scholarship and educational programs on a variety
of topics at the intersection of medicine and law.
Amici have a deep interest in the freedom of debate and criticism on
medical matters; and their experience with law and medicine may provide a helpful perspective for this Court to consider.

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SUMMARY OF ARGUMENT
1. Books, movies, newspapers, and magazines are all sold for profit,
but they are fully protected by the First Amendment. Likewise, Dr. Novellas article is fully protected speech, though it was posted to a profitgenerating site.
Dr. Novellas article warns patients about the risks of treating Alzheimers with arthritis medication, and thus helps them make more informed healthcare decisions. It also helps other doctors decide whether
to adopt Dr. Tobinicks treatment methods, and provides interested laypeople with scientific commentary. Such speech thus valuably contributes to the marketplace of ideas.
2. Five federal circuit courts have considered whether federal courts
should apply anti-SLAPP statutes like Californias. Four have found that
such statutes do apply in federal court. This dominant view is correct for
the three reasons.
First, Californias anti-SLAPP statute substantively limits the scope
of state libel law by shifting the burden of proof and by requiring plaintiffs in meritless cases to pay the defendants attorneys fees. It also substantively protects the First Amendment rights of defendants threatened
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by meritless lawsuits. The Erie doctrine thus requires that federal courts
deciding diversity cases apply the statute.
Second, the statute coexists with the Federal Rules of Civil Procedure.
Rules 12(b)(6) and 56 provide two means for defendants to dispose meritless suits; the statute simply provides a third. Federal courts can thus
apply it without conflict with the Federal Rules.
Third, applying the statute serves the twin goals of the Erie doctrine:
It prevents forum-shopping and avoids inequitable administration of the
law. The statute applies in California state courts and in the Ninth Circuit. If this Court does not apply the statute, California plaintiffs will
have an incentive to look for a new forum to bring libel suits, and different litigants will be treated differently even when their cases involve the
same facts and the same California libel law.
This Court should therefore affirm the District Courts holding that
Dr. Novellas blog posts are fully protected speech, and that the California anti-SLAPP statute applies in federal court.

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ARGUMENT
I. Dr. Novellas speech is not commercial speech
Dr. Novellas article warns readers that Dr. Tobinicks Alzheimers
treatmentprescribing arthritis medications to patients facing a terminal, degenerative diseaseis, in Dr. Novellas view, not supported by serious scientific research and may be dangerous.
If Dr. Tobinicks theory is mistaken, patients may waste their money
on a false hope for recovery. If his theory is correct, his procedures may
change the science of Alzheimers treatment. The only way to test
whether a scientific theory is true is to constantly consider whether it
may be false; by challenging Dr. Tobinicks claims, Dr. Novella helps test
their truth. Dr. Novellas statements are thus valuable components of
public debate about science, and are fully constitutionally protected.
Indeed, Dr. Novellas speech is a classic example of doctors evaluating
and critiquing others theories. Doctors often view themselves as professionally and morally obligated to speak forthrightly about medical disputes that may affect peoples lives. Doctors critique other doctors theories during morbidity and mortality conferences, in scientific journals,
while preparing expert reports, and in many more contextsmany of
5

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which involve the critics being paid for their time and expertise. Medicine
could not advance without such forthright discussion.
And the protection for this discussion is not diminished by Dr. Novellas having published his posts on a revenue-generating website. Dr.
Tobinick claims that the paid ads, subscriptions, and donation requests
on Dr. Novellas website make the blog posts commercial speech. Tobinick
Br. 1, 4. But like Dr. Novella, Scientific American sells advertisements
and subscriptions; The New England Journal of Medicine sells subscriptions; and National Public Radio requests donations. Following Dr. Tobinicks logic, these important sources of information would be treated as
less-protected commercial speech.
Yet the Supreme Court has held that the First Amendment fully protects speech even when a speaker profits from it: That books, newspapers, and magazines are published and sold for profit does not prevent
them from being a form of expression whose liberty is safeguarded by the
First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02
(1952); see also Smith v. California, 361 U.S. 147, 150 (1959). This Court
has concluded the same: Even when a commercial artist sells [his works]
for money, it is of course no matter that the dissemination [of speech]
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takes place under commercial auspices. Univ. of Ala. Bd. of Trustees v.

New Life Art, Inc., 683 F.3d 1266, 1276 (11th Cir. 2012) (quoting Smith,
361 U.S. at 150). Like other expressive speech, [a commercial artists]
paintings, prints, and calendars are entitled to full protection under the
First Amendment. Id. Thus, Dr. Novellas speech is fully protected even
when he publishes it on an income-generating website.
Nor are Dr. Novellas posts commercial speech under the test for commercial advertisements outlined in Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60 (1983). Bolger held that [t]he combination of [three] characteristics cause a condom manufacturers pamphlets to be commercial
speech: that (1) the manufacturers pamphlets were conceded to be advertisements, that (2) the pamphlets refer[red] to a specific product
sold by the manufacturer, and that (3) the manufacturer has an economic motivation for mailing the pamphlets. Id. at 66-67. But these factors cut against treating Dr. Novellas posts as commercial:
1. The posts are not in the form of traditional advertisements. Id. at
66. Instead, they are like articles in a scientific magazine that may
be accompanied by advertisements or subscription offers, but that
are not themselves commercial speech.
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2. The only product mentioned by the posts is Dr. Tobinicks treatment, which Dr. Novella evaluates and discourages people from
buying. Such a review of Dr. Tobinicks service is as fully protected
as a product review in Consumer Reports or Car & Driver, or a restaurant review in the Atlanta Journal-Constitution. See, e.g., Commodity Trend Serv., Inc. v. Commodity Futures Trading Commn,
149 F.3d 679, 686 (7th Cir. 1998) (restaurant reviews are not commercial speech); Gordon & Breach Sci. Publishers S.A. v. Am. Inst.
of Physics, 859 F. Supp. 1521, 1544 (S.D.N.Y. 1994) (Consumer Reports publishing of its product reviews is not commercial speech).
3. Even if Dr. Novella might be motivated in part by economic interestas many book authors, filmmakers, and newspaper writers
arethat is not enough to make his articles commercial speech.
[T]hat [a company] has an economic motivation for [speaking]
would clearly be insufficient by itself to turn the [speech] into commercial speech. Bolger, 463 U.S. at 67.
Dr. Tobinick relies on World Wrestling Fedn Entmt, Inc. v. Bozell, 142
F. Supp. 2d 514 (S.D.N.Y. 2001), a case in which an advocacy group built

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a fundraising campaign around criticisms of the World Wrestling Federation. Id. at 525-26. But Dr. Novellas scientific critiques are not the centerpiece of his donation requests, subscriptions, or advertisements. Instead, they are standalone editorial content, clearly distinct from any requests for funding. And when Dr. Novella requested donations to cover
his legal costs, he did so separately from his scientific critiques of Dr.
Tobinick, and only as a direct consequence of this lawsuit.
More importantly, the Bozell court failed to consider Supreme Court
case law on fundraising by charities and advocacy groups. In Riley v.
Natl Fedn for the Blind, 487 U.S. 781 (1988), the Supreme Court held
that direct requests for charitable contributions, intertwined with advocacy, were fully protected speech: It is not clear that a professionals
speech is necessarily commercial whenever it relates to that persons financial motivation for speaking. Id. at 795-96. But even assuming,
without deciding, that such speech in the abstract is indeed merely commercial, we do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected
speech. Id. at 796; see also Schaumburg v. Citizens for a Better Envt,
444 U.S. 620, 632 (1980) (holding that charitable donation requests are
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not commercial speech). Like the charitable organization in Riley, Dr.

Novella requests money so he can continue his public-minded work
writing articles about science. Because these requests are inextricably
intertwined with his editorial content, his speech is fully protected by
the First Amendment.
A better analogy for this case than Bozell is Gordon & Breach Sci.
Publishers, which held that scientific journal articles printed alongside
advertisements were not commercial speech because (1) defendant was a
nonprofit organization, (2) academic journals are constitutionally protected, and (3) the advertisements were not the central message of the
articles. 859 F. Supp. at 1540-41. Applying that reasoning to our case,
Dr. Novellas articles are not commercial speech because: (1) Dr. Novellas website belongs to his nonprofit Society for Science-Based Medicine, Inc.; (2) his posts are functionally equivalent to scientific articles in
a magazine, whether an academic journal or a magazine that popularizes
scientific work for the public; and (3) his posts critique Dr. Tobinick and
are unrelated to any of the advertisements.

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II. Californias anti-SLAPP statute applies in federal court

Federal courts deciding diversity cases apply state rules when the
state rule is substantive law and does not conflict with a valid federal
statute or rule. Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d
1254, 1259 (11th Cir. 2011) (treating a fee-shifting statute as substantive
for Erie purposes). Because the California anti-SLAPP statute meets
these requirements, it applies in federal court. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972-73 (9th Cir.
1999).
Five federal circuits have considered whether state anti-SLAPP with
burden shifting and attorney fees provisions apply in federal court.
Fourthe First, Second, Fifth, and Ninthhave held that they do. See
Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010); Adelson v. Harris, 774
F.3d 803, 809 (2d Cir. 2014); Henry v. Lake Charles Am. Press, 566 F.3d
164, 168-69 (5th Cir. 2009); Newsham, 190 F.3d at 973; cf. Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729, 731-32 (7th Cir. 2015)
(refraining from answering whether Washingtons anti-SLAPP statute
applied in federal court because the Washington Supreme Court had earlier concluded that the statute violated the states constitution). Only one
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circuit has held the opposite. Abbas v. Foreign Policy Grp., 783 F.3d 1328,
1337 (D.C. Cir. 2015).
In a limited holding, this Court found Georgias anti-SLAPP statute
did not apply in federal court because it imposed a verification requirement on plaintiffs, and was thus procedural for Erie purposes. Royalty
Network, Inc. v. Harris, 756 F.3d 1351, 1357-60 (11th Cir. 2014). But the
verification requirement directly contradicts Rule 11, which explicitly
states that a pleading need not be verified or accompanied by an affidavit. Id. at 1358 (quoting Fed. R. Civ. P. 11). This court did not address
whether more substantive aspects of anti-SLAPP statutesburden shifting and attorney fees provisionswould apply in federal court. Id. at
1361-62.
A. Californias anti-SLAPP statute is part of Californias substantive libel law and thus applies in federal court
The California anti-SLAPP statute limits California libel law in two
ways that are relevant to this case. First, the statute provides that a defendant who wins an anti-SLAPP motion can get attorneys fees. This
Court has concluded that fee-shifting statutes are substantive law for
Erie purposes, and thus applicable in federal courts sitting in Florida.

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All Underwriters v. Weisberg, 222 F.3d 1309, 1311-12 (11th Cir. 2000);
see also Servicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc.,
145 F.3d 463, 478 (1st Cir. 1998) (stating that a state procedural rule
providing attorneys fees] is substantive for Erie purposes).
Second, the statute shifts the burden of proof. Normally, in a pretrial
motion the burden is entirely on the defendant. Under the anti-SLAPP
statute, once the defendant shows that the speech was on a matter of
public concern, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. Nunez v. Pennisi, 241 Cal. App. 4th
861, 871 (2015); see also Kurz v. Syrus Sys., 221 Cal. App. 4th 748, 75758 (2013). In this respect, the state law here is like [s]tate doctrines of
res ipsa loquitur [that] are respected in federal court because the doctrine
has assumed the status of a substantive rule of law, affecting plaintiffs
burden of proof or production of evidence. Daniels v. Twin Oaks Nursing
Home, 692 F.2d 1321, 1324 (11th Cir. 1982); see also Godin, 629 F.3d at
89 (One of the substantive aspects of [Maines anti-SLAPP statute]
shifts the burden to plaintiff to defeat the special motion.).
And treating these provisions as substantive and thus applicable in
federal court makes sense. To apply California libel law as the California
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Legislature envisions it, federal courts must also apply the limitations on
that law: Through anti-SLAPP laws, [state] legislatures . . . have decided to impose substantive limitations on certain state law actions. . . .
If we ignore how states have limited actions under their own laws, we . . .
flush away state legislatures considered decisions on matters of state law
. . . . Makaeff v. Trump Univ., 736 F.3d 1180, 1187 (9th Cir. 2013).
The California Legislature has chosen to provide additional substantive protection for defendants First Amendment rights. [R]ights to free
speech and petition . . . are at the heart of Californias anti-SLAPP statute. DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir.
2013). Libel lawsuits tend to silence speech because litigation is costly
and time-consuming. Newsham, 190 F.3d at 970-71. The California Legislature enacted the anti-SLAPP statute to limit this tendency of California libel law, Cal. Civ. Proc. Code 425.16(a) (West 2015), and to create
a substantive immunity from suit. Batzel v. Smith, 333 F.3d 1018, 1025
(9th Cir. 2003).
Federal courts rightly respect this state legislative decision. Indeed, if
this Court were to decline to apply the California statute, the substantive
right that the statute creates would be lost. Yet the Rules Enabling Act
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provides that the federal rules do not purport to abridge substantive

rights. 28 U.S.C. 2072.
In Abbas, the D.C. Circuit concluded that D.C.s anti-SLAPP statute
did not apply in federal court because it was not substantive. Abbas v.
Foreign Policy Grp., 783 F.3d 1328, 1337 (D.C. Cir. 2015). The court rejected defendants argument that the statute substantively embodied a
form of qualified immunity shielding participants in public debate from
tort liability. Id. at 1335. But the court did not discuss the separate arguments that the burden shifting and fee shifting aspects of the antiSLAPP statute made it substantive.
B. Californias anti-SLAPP statute does not conflict with the Federal Rules
Californias anti-SLAPP statute, by creating a separate and additional theory upon which certain kinds of suits may be disposed of before
trial, supplements rather than conflicts with the Federal Rules. Makaeff, 736 F.3d at 1182. Rule 12(b)(6) provides defendants with one means
to dismiss meritless suits. Rule 56 provides another. Anti-SLAPP statutes provide a thirdthe early disposal of meritless suits brought to chill
protected speech. Godin, 629 F.3d at 88.

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Californias anti-SLAPP statute thus does not undermine the Federal

Rules. If a defendants anti-SLAPP action fails, Rules 12(b)(6) and 56 still
apply with full force. Newsham, 190 F.3d at 972. The statute operates in
California state courts alongside Californias analogs to Rules 12(b)(6)
and 56. See Cal. Civ. Proc. Code 430.10, 437c(c); Makaeff, 736 F.3d at
1182-83. No conflict exists there. Likewise, the statute can apply in federal court without conflicting with Rules 12(b)(6) and 56. Id. at 1184.
The D.C. Circuit in Abbas broadly interpreted Rules 12(b)(6) and 56
as preempt[ing] state anti-SLAPP statutes, 783 F.3d at 1335 n.3, because Federal Rules 12 and 56 answer the same question as the AntiSLAPP Act[]. Id. at 1336. But such a reading of the Federal Rules would
abridge the substantive rights embodied by anti-SLAPP statutes. [C]itizens . . . should not be stripped of their states free speech protections
whenever they step inside a federal court. Makaeff, 736 F.3d at 1187.
This court should reject the D.C. Circuits view that the Federal Rules
preempt state law protections against meritless libel lawsuits, and adopt
instead the view of the First, Second, Fifth, and Ninth Circuits.

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C. Applying Californias anti-SLAPP statute achieves the Erie

doctrines twin goals
Applying the anti-SLAPP statute would thus be consistent with the
Erie substance/procedure distinction. And it would also be consistent
with Eries purposesdiscouraging forum shopping and avoiding inequitable administration of the law. Newsham, 190 F.3d at 973.
If Dr. Tobinick had filed suit in the California state court, the statute
would have applied. If Dr. Tobinick had filed in the Ninth Circuitthe
Circuit in which claims based on California law are most likely to be
filedthe statute would have applied. If this Court does not also apply
the statute, plaintiffs would have an incentive to forum-shop. [I]f the
anti-SLAPP provisions are held not to apply in federal court, a litigant
interested in bringing meritless SLAPP claims would have a significant
incentive to shop for a federal forum. Id.
And even if some cases can only be filed in this Court, so that forumshopping is not a concern, a decision by this Court not to apply the California anti-SLAPP statute would lead to unequal treatment of litigants,
based solely on the happenstance of where the suit can be filed. Litigants
who file claims based on California libel law in the Ninth Circuit would

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be subject to the California anti-SLAPP statute. Litigants who file claims

based on the same statements under the same California libel law in the
Eleventh Circuit would not be subject to the California anti-SLAPP statute. This sort of lack of uniformity in the administration of the law of
the State (here, California), Erie R.R. Co. v. Tompkins, 304 U.S. 64, 75
(1938), is one of the vices that Erie sought to address.
CONCLUSION
Dr. Novellas article is not commercial speech; rather, it is fully protected by the First Amendment. And Californias anti-SLAPP statute is
applicable in federal court, as the First, Second, Fifth, and Ninth Circuits
have held. The decision of the district court should therefore be affirmed.
Respectfully submitted,
s/ Eugene Volokh
UCLA School of Law
Scott & Cyan Banister
First Amendment Clinic
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu
Counsel for Amicus Curiae
May 26, 2016

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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Federal
Rule of Appellate Procedure 32(a)(7)(B) and the Rules of this Court, because it contains 3,365 words as determined by the Microsoft Word wordprocessing system used to prepare the brief, excluding the parts of the
brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Federal Rule
of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in
a proportionally spaced typeface using 14-point Century Schoolbook font
in Microsoft Word.

s/ Eugene Volokh
Counsel for Amicus Curiae
May 26, 2016

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CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2016, I electronically filed the foregoing through the Courts CM/ECF system. Notice of this filing will be
sent by e-mail to all CM/ECF-registered parties by operation of the
Courts electronic filing system. I have caused this document to be sent
by mail to the following parties who prefer mail service:
Geoffrey Michael Cahen
Quarles & Brady, LLP
1900 Glades Rd Ste. 355
Boca Raton, FL 33431-8548
Ian Clark
Australian National University
Research School of Biology
Linnaeus Way Bldg. 134
Canberra, 2601
Australia ACT
Jason Allan Fischer
Fischer Law, PL
2 Biscayne Blvd. Ste. 2600
Miami, FL 33131
Coralie Graham
University of Southern Queensland
Dept of Health, Engineering & Sciences
Baker St.
Toowoomba, Queensland, 4350
Australia

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Jay Marshall Wolman

Randazza Legal Group, PLLC
4035 S El Capitan Way
Las Vegas, NV 89147

s/ Eugene Volokh
Counsel for Amicus Curiae
May 26, 2016

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