In a reversal of precedent, the U.S. Court of Appeals for the Ninth Circuit held that parties cannot immediately appeal denials of California Anti-SLAPP ("Strategic Lawsuit Against Public Participation") motions under the collateral order doctrine. In reaching the decision, the Ninth Circuit, sitting en banc, assumed for the sake of argument that California's Anti-SLAPP law would apply in federal court, although the panel did not reach agreement on that issue. While the ruling is a blow to litigants challenging the legitimacy of claims based on the exercise of First Amendment rights to free speech and petition, they can still seek permission to pursue a discretionary interlocutory appeal through certification by a district court.
What You Need to Know:
- California's Anti-SLAPP legislation empowers litigants to move to strike claims and counterclaims they argue are based on the exercise of their right to free speech or petition in connection with a public issue.
- Anti-SLAPP motions provide a quick route to dismissal if granted, but the Ninth Circuit held denials of such motions cannot be immediately appealed because California anti-SLAPP analysis requires a fact-intensive inquiry on a case's merits and because anti-SLAPP denials can still be reviewed effectively after a final judgment.
- The Ninth Circuit left open the question of whether California's Anti-SLAPP statute would apply in federal court.
California's Anti-SLAPP Legislation
California's Anti-SLAPP legislation allows parties to seek a quick dismissal of claims for actions they argue are merely an exercise of First Amendment rights. An anti-SLAPP motion is a special motion to strike aimed to push back on the chilling of protected speech through litigation. This procedural tool is important because claims involving speech and exercise often require a fact-intensive analysis that would only occur after the pleading stage. In addition, a successful anti-SLAPP motion entitles the movant to attorney's fees and costs.
To challenge a suit as seeking to stymie one's right to public participation, defendants must show that they are being sued for "any act . . . in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." Cal. Civ. Proc. Code § 425.16. The statute applies to four categories: statements made in a legislative, executive or judicial proceeding; statements made in relation to an issue under consideration by a governmental body; statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furthering the exercise of free speech or petition rights in connection with "a public issue or an issue of public interest." Cal. Civ. Proc. Code § 425.16(e).
The Ninth Circuit's Ruling in Gopher Media, LLC v. Melone
In Gopher Media, LLC v. Melone, No.: 3:21-cv-01909 (S.D. Cal.), a dispute between local businesses spilled over into a campaign of fake negative online reviews, false statements on social media, and real-world vandalism. Plaintiffs filed an anti-SLAPP motion challenging the factual sufficiency of defendants' counterclaims, but the district court denied the motion.
On appeal, the Ninth Circuit considered whether a party could immediately appeal denial of an anti-SLAPP motion. Noting precedent granting jurisdiction to that court to consider such appeals pursuant to the collateral order doctrine, the Ninth Circuit broke with prior rulings and concluded that an anti-SLAPP denial did not satisfy the requirements for an interlocutory appeal because a denial does not resolve issues "completely separate from the merits of the action" and does not render the decision "effectively unreviewable on appeal from a final judgment." Gopher Media, LLC v. Melone, No. 24-2626, 2025 WL 2858761 (9th Cir. Oct. 9, 2025).
First, the Ninth Circuit found an order denying an anti-SLAPP motion did not resolve questions completely separate from the merits because determining whether challenged conduct was in furtherance of free speech or petition rights requires the "content" and "context" of a plaintiff's allegations as well as the probability that the plaintiff will prevail on the claim. The court observed these were not "neat abstract issues of law" separate from the merits. Rather, the fact-dependent nature of the anti-SLAPP analysis meant the denial of such a motion could not be considered "conceptually distinct" from the merits of a claim and thus qualify for immediate appeal.
Second, the Ninth Circuit concluded that delaying appellate review of an anti-SLAPP motion denial would not render the denial "effectively unreviewable" for purposes of the collateral order doctrine. The Court acknowledged that its holding might be unfair to parties who are forced to defend a meritless suit through trial, but found that possibility did not "justify the cost of allowing immediate appeal of the entire class" of such orders.
The Ninth Circuit further explained that its ruling would align with the approach it previously adopted for appealing the grant of anti-SLAPP motions, which the Court had previously ruled cannot be appealed pursuant to the collateral order doctrine. The Court also supported its conclusion by observing the stringent standard for interlocutory appeals and that other appellate courts, such as the Second and Tenth Circuits, have held the denial of an anti-SLAPP motion does not satisfy the collateral order doctrine.
Go(pher)ing Forward
The Gopher Media ruling isn't all bad news for anti-SLAPP movants, though. The Ninth Circuit pointed out that parties may still pursue discretionary interlocutory appeals if certified by the district court pursuant to 28 U.S.C. § 1292(b) (providing for immediate appeal where the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation"). In addition, the Ninth Circuit's ruling does not change the fact that California anti-SLAPP denials may be appealed immediately in state court.
Anti-SLAPP legislation provides a powerful defense for parties who believe they are being sued by a plaintiff attempting to chill their speech and prevents abuse of the judicial system by offering an option for quick dismissal of meritless suits. While the Gopher Media ruling may frustrate some litigants in cases that are not clear cut, district courts embracing certification could limit the impact of the decision. The ruling also elevates the importance of motions to remand federal cases to state court, where anti-SLAPP motion denials are immediately appealable. In any event, parties still have the option to seek dismissal at later stages of litigation even if their anti-SLAPP motions are denied.
