Anti-SLAPP denials are no longer immediately appealable in the Ninth Circuit. That was the en banc holding in Gopher Media LLC v. Melone (9th Cir., Oct. 9, 2025, No. 24-2626) 2025 WL 2858761, which overruled Batzel v. Smith. But still hotly debated in whether the Ninth Circuit will continue to entertain anti-SLAPP motions at all. The majority did not reach that issue, but two concurring opinions staked out opposite positions on it.
The only new rule in Gopher Media is that when a defendant files an anti-SLAPP motion in federal court and it is denied, the defendant has no immediate right to appeal. Instead, the defendant is stuck litigating the case to the bitter end. The appealability question comes down to the collateral-order doctrine, which makes orders appealable when they are final and distinct from the core merits of the case. But prong two of the anti-SLAPP process is definitely about the merits.
Incidentally, any California court would have decided the collateral-order issue the exact same way. The state/federal difference has nothing to do with the collateral-order doctrine. Rather, the California Legislature made anti-SLAPP denials appealable in not one but two statutes. (Code Civ. Proc., § 904.1(a)(13); § 425.16(i).) Congress, on the other hand, has not.
So what does the loss of immediate appeal in the 9th Circuit mean for anti-SLAPP denials? That remains to be seen. Supporters of the anti-SLAPP law argue this will neuter its protections and lead plaintiffs to forum-shop. But no early appeals should make plaintiffs nervous, too, because defendants still have a one-way right to anti-SLAPP fees. So if a defendant’s anti-SLAPP motion is denied in federal court and the case goes on through the normal expensive process, plaintiffs will be exposed to growing exposure to those one-way fees. That is, while the one-way fees in state court will be limited to the anti-SLAPP motion itself (usually in the low tens of thousands), in federal court they could encompass the entire case—swelling to the hundreds of thousands.
But for now, you can still file anti-SLAPPs in federal court.
The judges are split, however, on the Erie doctrine issue whether the anti-SLAPP protections are "substantive" (and thus apply in federal court) or "procedural" (do not apply in federal court). Judge Bennet, joined by Judge Callahan, says there is a substantive right because of the right to attorneys’ fees, and denying anti-SLAPP rights altogether would encourage plaintiffs to forum-shop to federal court.
Judge Bress, joined by Judges Collins, Lee, and Bumatay, strongly disagree. They call the Ninth Circuit’s precedent accommodating anti-SLAPPs a "misguided experiment.” Judge Bress makes a strong case that, far from protecting the purpose of the anti-SLAPP statute, the Ninth Circuit has waded into a quagmire of contradictions between state and federal law and created a "bespoke", "exotic," "hybrid version” of the law. Judge Bress points to critical functions of the California law, and how the Ninth Circuit has manipulated them:
This latest innovation, Judge Bress says, makes the Ninth Circuit’s anti-SLAPP jurisprudence "even more incoherent,” and that “we have now stripped away every major procedural aspect of the statute geared toward the early termination of claims." Judge Bress predicts “a wave of new issues relating to outsized fee awards, made possible by the majority’s decision to retain the statute’s sole remaining core feature—fee-shifting—but to inter the rest."
This is a problem, Judge Bress says, for the legislature. The California legislature could have created a cause of action, and this might have paved a way for a substantive right—denial of which would be appealable as a collateral order. But it didn't do that. Instead, it adopted procedures, and procedures are limited to state courts. Will Congress eventually pass an anti-SLAPP law? Maybe, but even if not, "There is no reason to believe that federal courts are incapable of dealing with plaintiffs who seek to use litigation to chill speech." (One possibility is 28 U.S.C. § 1927, which can be used for sanctions for driving up the costs of litigation, and without Rule 11's cumbersome 21-day safe harbor.)
For trial lawyers, Gopher Media means anti-SLAPP motions in federal court just got slower but riskier: defendants lose the right to an early appeal, but plaintiffs who survive an anti-SLAPP motion now face the possibility of one-way fee exposure ballooning through the entire case if the motion is vindicated after final judgment.
