There is an interesting anti-SLAPP case that has now reached the DC Court of Appeals. Here is the background.
Susan Burke is a DC lawyer, best known for representing plaintiffs in suits against the U.S. military or federal government contractors. In January 2012, an editor allegedly edited Ms. Burke’s Wikipedia entry to suggest that a DC federal judge had criticized a case she brought against the company then named Blackwater. In fact, Ms. Burke was not involved in the case referenced by the Wikipedia editor, and was instead counsel in a separate case involving the same defendant.
According to the Complaint, after Ms. Burke corrected the entry, a separate Wikipedia editor republished the original false and defamatory statements. It alleges that Ms. Burke then directed a comment to the second editor on Wikipedia, explaining that his edit was incorrect. It alleges that, despite this warning, the second editor republished it again, and continued to republish it even after Ms. Burke’s counsel repeatedly removed it from Wikipedia.
In response, Ms. Burke brought a libel action against the two editors, named only by their Wikipedia handles. She apparently intended to serve discovery on Wikipedia, seeking information about the actual name/identity of the two editors. While the second editor did not respond to the action, the first editor (known only by the screenname “Zujua”) retained counsel and moved to quash the subpoena under a provision of the DC anti-SLAPP Act providing that:
[a] person whose personally identifying information is sought, pursuant to a discovery order, request, or subpoena, in connection with an action arising from an act in furtherance of the right of free speech may make a special motion to quash discovery order, request, or subpoena.
The person bringing a special motion to quash under this section must make a prima facie case showing that the underlying claim arises from an act in furtherance of the right of free speech. If the person makes such a showing, the claimant in the underlying action may demonstrate that the underlying claim is likely to succeed on the merits.
Zujua argued that Burke was, at minimum, a limited purpose public figure and that, “[s]ince plaintiff is a public figure, Zujua’s statements about her were in connection with a public issue under § 16-5501(3), and since they were such and communicated to members of the public, under § 16-5501(1)(B) they were an act in furtherance of the right of advocacy on issues of public interest.” Zujua alternatively argued that the elements of the anti-SLAPP statute were satisfied because the allegedly defamatory statements “related to the conduct of the war in Iraq and whether those prosecuting that war engaged in misconduct for which they should be held responsible.”
Zujua argued that, as a public figure, Burke needed to show that he acted with actual malice, and that, because she could not satisfy this demanding standard, she could not show a likelihood of success on the merits, and thus her attempts to unmask him must fail.
After Burke opposed the motion (arguing that she was not a public figure; that the allegedly defamatory statements did not relate to an issue of public interest; that the statements might have been made for commercial gain (which would put them outside the protection of the anti-SLAPP statute); and that, in any event, she could prevail on the merits because she could show that Zujua acted negligently), and Zujua filed his reply brief(expanding on the arguments made in his opening brief), the DC Superior Court denied the anti-SLAPP motion, agreeing with the arguments made by Burke.
That’s when things began to get interesting. Zujua appealed the Superior Court’s Order to the DC Court of Appeals. In response, Burke moved to dismiss the appeal, arguing that it was an improper interlocutory appeal of the denial of an anti-SLAPP motion (see Newmyer).
Zujua responded by arguing that the DC Court of Appeals had immediate jurisdiction over his appeal because his anti-SLAPP motion also requested an injunction prohibiting the release of identifying information, the denial of which was immediately appealable. Zujua also argued that jurisdiction was available under the collateral order doctrine.
Burke’s reply brief in support of her motion to dismiss the appeal argued that the Superior Court had not denied (or even considered) whether an injunction should issue; that the Superior Court’s order was routine discovery order that was not immediately appealable; and that jurisdiction was not available under the collateral order doctrine.
Around the same time, the DC Court of Appeals ordered Zujua to explain why it had jurisdiction over the interlocutory appeal. Zujua’s submission repeated – and expanded – on the arguments in his prior brief: that the Superior Court’s order was, essentially, the denial of a request for an injunction that was immediately appealable, or that jurisdiction was available under the collateral order doctrine.
Zujua’s strongest argument is that immediate appellate review is necessary because his identity would otherwise be immediately, and irreparably, revealed:
the underlying purpose of the special motion to quash in Section 16-5503 is to protect speakers’ anonymity. A denial of that right, like the denial of qualified immunity in constitutional litigation, is essentially unreviewable after trial – indeed, unreviewable as soon as the identity is discovered – and constitutes a final order under the collateral order doctrine.
This argument has been accepted by courts in other jurisdictions. For example, in Fitch v. Doe #1, 869 A.2d 722 (Me. 2005), the Maine Supreme Court held that Doe could immediately appeal a trial court’s order directing his/her Internet Service Provider to disclose identifying information. The court reasoned that an immediate interlocutory appeal was necessary because, otherwise, “disclosure of Doe’s identity will strip Doe of anonymity, making a later appeal moot.” Similarly, in Raiser v. Brigham Young Univ., 127 Fed. Appx. 409 (10th Cir. 2005), the court held that a plaintiff could immediately appeal a trial court order denying his request to litigate his case using a pseudonym under the collateral order doctrine because it would otherwise be “essentially unreviewable on appeal because any right to proceed anonymously will be lost if not permitted before trial.”
It seems to me that, even if the DC Court of Appeals decides that there is no right to immediate appeal from the denial of a “typical” anti-SLAPP motion, a case involving the right to speak anonymously is different because the unmasking of the speaker’s identity cannot wait until trial, or even discovery; as such, the denial of an anti-SLAPP motion in those cases must be immediately appealable.
While it is often dangerous to read too much into an Order (without an accompanying Opinion), it is possible that the DC Court of Appeals agrees with the above analysis. Following submission of the various briefs, it issued a per curiam Order which concluded that “the issue of appealability is an issue of first impression”; stayed discovery; and held that the motion to dismiss would be decided by the merits panel.
Then the Court issued another Order, directing the parties to brief whether the Superior Court correctly decided denied the motion to quash. I’ll address those arguments in a separate post.