CoreCivic v. Candide Group

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: Oct. 26, 2021

Update: On Aug. 30, 2022, the U.S. Court of Appeals for the Ninth Circuit affirmed the partial dismissal of CoreCivic’s defamation lawsuit against journalist Morgan Simon. In doing so, the Ninth Circuit rejected CoreCivic’s bid to evade California’s anti-SLAPP protections by litigating its claims in federal court. The court’s opinion agreed with arguments RCFP attorneys pressed in their friend-of-the-court brief, specifically that the special motion to strike provision of California’s anti-SLAPP law applies in federal court and that Ninth Circuit cases interpreting the provision are compatible with U.S. Supreme Court precedent.

Background: Starting in 2018, Morgan Simon, a senior contributor at Forbes who also runs Candide Group, a socially conscious investing group, published a series of articles in Forbes about CoreCivic, a private prison company, and its detention of family members separated at the border. CoreCivic sued Simon for libel, and Simon moved to strike the company’s claims under California’s anti-SLAPP law.

The U.S. District Court for the Northern District of California ruled in Simon’s favor, construing her motion to strike as a motion to dismiss under federal court rules. The court also concluded that Simon was entitled to receive attorney fees under California’s anti-SLAPP law, although those have not yet been calculated by the court due to CoreCivic’s pending appeal.

CoreCivic appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, arguing that the district court erred by allowing Simon to file an anti-SLAPP motion because such motions conflict with federal court rules.

Our Position: The Ninth Circuit should affirm the district court’s decision in favor of Simon and reject CoreCivic’s argument, which, if adopted, would deprive Californians of vital, substantive protections against claims arising out of the exercise of their First Amendment rights — in particular, the California anti-SLAPP law’s fee-shifting provision that enables prevailing SLAPP defendants to recover their attorney fees and costs from plaintiffs.

• Anti-SLAPP laws protect against meritless, retaliatory litigation that chills newsgathering and threatens press freedom.
• The Ninth Circuit has long held that the motion-to-strike and attorney fee provisions of California’s anti-SLAPP law apply in federal court.
• The district court already applied the federal rules in dismissing this case, as required by Ninth Circuit law, and did so in a way that preserves the ability of prevailing SLAPP defendants to secure attorney fees, consistent with long-standing Supreme Court precedent.

Quote: “Strong anti-SLAPP protections, including fee-shifting provisions, are … essential for members of the news media, protecting their ability to inform the public about wrongdoing and shine a light on abuses of power.”

Related: Reporters Committee attorneys have previously filed friend-of-the-court briefs in cases concerning whether state anti-SLAPP laws apply in federal court, including in Tah v. Global Witness Publishing, most recently, in Coleman v. Grand.