APRIL 2026 | 43 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Anti-SLAPP laws typically allow a defendant to bring an early dismissal motion when a plaintiff’s lawsuit targets conduct arising from the defendant’s exercise of free speech rights.42 Most would likely say, so far, so good – who would object to protecting First Amendment activity from retaliatory litigation? The problem, almost always, is in the details, specifically how state anti-SLAPP laws operated. Most anti-SLAPP statutes share four common elements. First, anti-SLAPP statutes impose an evidentiary burden at the pleading stage: A plaintiff must establish a likelihood of success on the merits by demonstrating a prima facie case with admissible evidence.43 Second, anti-SLAPP statutes alter the standard of review: Rather than taking the plaintiff’s factual allegations as true, courts applying anti-SLAPP statutes must do away with that presumption and instead hold a plaintiff to their prima facie case burden.44 Third, most anti-SLAPP statutes, including Oklahoma’s, provide for early dismissal based on this evidentiary showing (or lack thereof) before any discovery has occurred.45 Fourth, anti-SLAPP statutes typically give a movant an immediate right to appeal a denial of a dismissal motion contrary to established practice in federal court for most allegations or evidence-based dismissal motions.46 When applicable, anti-SLAPP laws fast-track dismissal motions and impose procedural burdens on civil litigants. Oklahoma’s anti-SLAPP statute, the Oklahoma Citizens Participation Act (OCPA), is a “broad” statute aimed “at protecting a wide spectrum of First Amendment speech, with limited exceptions.”47 The trigger for the statute is a lawsuit that “is based on, relates to, or is in response to ... [a moving party’s] exercise of the right of free speech, the right to petition, or the right of association.”48 This requirement, Oklahoma courts have said, extends the “reach of the OCPA” to “any tort involving speech.”49 Important still, the speech or communication at issue should relate to a matter of public concern.50 The OCPA defines a matter of public concern to include, among other things, any matter related to “economic or community well-being” or “health and safety.”51 When the OCPA is applicable, the initial burden is on the party seeking dismissal to show that the lawsuit is based on or relates to First Amendment rights.52 Once the movant clears their First Amendment rights threshold, the burden then shifts to the nonmovant to show “by clear and specific evidence a prima facie case for each essential element of the claim in question.”53 If a prima facie case is shown, then the burden shifts to the movant to establish a defense – but not one based on disputed facts.54 APPLYING BERK: ANTISLAPPS AND THE FEDERAL RULES’ POSSIBLE CONFLICT After Berk, the conflict between these anti-SLAPP law features and the federal rules will likely strike many as unavoidable. Indeed, this will likely be true with rules 8, 12, 26 and 56. After Berk, as this article tries to show later, the continued application of anti-SLAPPs in federal court is debatable. Start with Federal Rule of Civil Procedure 8. Berk held that Rule 8 sets “a ceiling on the information that plaintiffs can be required to provide about the merits of their claims” at the outset of litigation.55 Delaware’s affidavit requirement violated this ceiling by demanding more: demanding evidence, not just a statement of the claim, at the pleading stage.56 Anti-SLAPP statutes appear to do the same thing. As noted, anti-SLAPPs require a plaintiff to produce evidence – to make out a prima facie case – at a stage when the federal rules demand only a short and plain statement.57 Indeed, the defendants in Berk tried to distinguish the affidavit requirement by arguing that it was a “precondition to proceeding” rather than a pleading requirement. But the Supreme Court rejected this gambit. “Describing the affidavit requirement as a precondition to proceeding does not magically dispel the conflict.”58 To be sure, antiSLAPP statutes likely face the same problem. Whether one styles the requirement as a “special motion to dismiss” or a “precondition to proceeding,” just as the defendant in Berk, the substance is the same: The plaintiff must do more than plead. They must bring evidence at the pleading stage, and in Berk’s words, that would appear to straightforwardly conflict with Rule 8.59 Consider Rule 12 next. Berk emphasized that Rule 12(b)(6) provides the “only ground for dismissal based on the merits” at the pleading stage in federal court and that Rule 12(d) prohibits courts from considering “matters outside the pleadings” when evaluating a motion to dismiss.60 Thus, under this framework, a federal court need only ask whether the complaint’s factual allegations, taken as true, “state a claim to relief that is plausible on its face.”61 But anti-SLAPP statutes would seem to upend this scheme entirely. They require courts to consider
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