Can An Anti-SLAPP Movant Deny Making the Challenged Statement?

According to a complaint filed in DC Superior Court, earlier this year the Institute for Gulf Affairs published an article titled “Is SAPRAC A Wolf In Sheep’s Clothing?” The article asserted The Saudi American Public Relation Affairs Committee “has a ‘questionable stance on tolerance, especially against Jews and are associated with virulent anti-Semitism.’”

The complaint alleges that SAPRAC’s founder and president, Salman Al-Ansari, was so offended by this article that, in a June interview with a blogger, he made false and defamatory statements about IGA and its founder and director Ali Al-Ahmed, including that:

  • “AlAhmed is a terrorist himself”
  • “AlAhmed ‘cares nothing for the sincere shared collective of ideas and cultures, but AlAhmed will use any means to exterminate the prospects of a peaceful world”
  • “AlAhmed and his cronies at [IGA] are dangerous – they have much more going on here than simple written words – they are subversive and will use any destructive means possible to promote their own misguided agenda of their own brand of terrorism”
  • “this is a perfect example of a Wolf in Sheep’s clothing – AlAhmed might dress in public like a docile Sheep, but, in truth, he is a Wolf – he will destroy anything in his path, even if he has to kill it to get there.”

In their complaint, Al-Ahmed and IGA assert claims for defamation per se, false light invasion of privacy, and intentional infliction of emotional distress.

Last week, SAPRAC and Al-Ansari responded to the suit by filing an anti-SLAPP special motion to dismiss. In it, they argue the suit arises from “an act in furtherance of the right of advocacy on issues of public interest” because the challenged statements were made in an article posted on the Internet (thus satisfying the place open to the public/public forum requirement) about an issue of public interest (“safety” and “community well-being”). They also argue that, because Al-Ahmed is at least a limited purpose public figure, the challenged statements were about a “public figure,” which satisfies the “issues of public interest” definition.

SAPRAC and Al-Ansari argue the plaintiffs cannot show they are likely to succeed on the merits of their defamation or false light claims because the challenged statements were opinions, rhetorical hyperbole, or not defamatory, and because plaintiffs cannot demonstrate the challenged statements were made with actual malice or show special harm. SAPRAC and Al-Ansari additionally argue that, because the defamation claim fails as a matter of law, so must the intentional infliction of emotional distress claim. And, they argue, plaintiffs cannot show their conduct was extreme and outrageous or that it caused severe emotional distress.

My Two Cents: the most interesting part of the SAPRAC and Al-Ansari anti-SLAPP special motion to dismiss brief is buried in the middle, when they assert Al-Ansari never made the challenged statements: “Al-Ansari has never communicated in any way with someone by the name of Spencer Tripens and did not make any of the statements Al-Ansari is alleged to have made that form the basis for the claims in this SLAPP.” In fact, SAPRAC and Al-Ansari argue that plaintiffs cannot satisfy the “publication” element of a defamation claim because they cannot show Al-Ansari made the challenged statements:

In order to present a legally sufficient amount of evidence to demonstrate Defendants published the alleged statements, Plaintiffs must provide evidence on the necessary prerequisite that Al-Ansari, acting in his capacity as director of SAPRAC, published the alleged statements to Tripens. Since Al-Ansari has never communicated in any way with someone by the name of Spencer Tripens and because Al-Ansari did not make any of the statements that he is alleged to have made that form the basis for the claims in this SLAPP, Plaintiffs will not be able to demonstrate a legally sufficient amount of evidence that Defendants published the alleged statements.

As readers know, the plaintiffs opposing the anti-SLAPP special motion to dismiss filed by Fusion GPS and Glenn Simpson argued that Fusion and Simpson needed to make “an affirmative claim that their statements were made in a public forum or involved communicating to the public” to carry their prima facie burden under the D.C. anti-SLAPP statute, and could not simply rely upon the allegations in the complaint. I found a California decision that seemingly accepted this argument and held that, because the defendant there affirmatively denied making the challenged statements, she had not carried her prima facie burden.

In my prior blog post, I noted a Kansas trial court had reached a similar conclusion, holding that, because the plaintiff there submitted an affidavit in which she denied making the challenged statements, she had not carried her burden to establish a prima facie case. I noted that decision was reversed on appeal, with the appellate court holding the relevant question was whether the “claims in the plaintiff’s petition implicate a protected right under the statute” so that it was “irrelevant whether the defendant admits or denies making the statements in question.” (emphasis added).

Last year, the Texas Supreme Court reached a similar conclusion under that state’s anti-SLAPP statute. Several intermediate appellate courts had previously reasoned that, because the purpose of the statute was to protect free speech, protecting a party who denied having exercised free speech was inconsistent with the act’s purpose. The Texas Supreme Court overruled these decisions and held that, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” The court reasoned that “[t]he basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” As such, the court held, “the trial court was obliged to consider the [plaintiffs’] pleadings irrespective of whether [the defendant] formally offered them as evidence.” Because the complaint in the Texas suit alleged the defendant engaged in speech covered by the statute, the court held the anti-SLAPP statute applied, even though the defendant had denied making the statements at issue.

It remains to be seen if the plaintiffs will make this argument in opposition to the anti-SLAPP special motion to dismiss filed by SAPRAC and Al-Ansari and, if they do, how the Superior Court will rule. As always, stay tuned.

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What Is an “Issue of Public Interest”?

If a party moving under the D.C. anti-SLAPP statute shows the suit arises from a statement made in connection with “an issue under consideration or review by a legislative, executive, or judicial body,” does the statement also need to satisfy the “issue of public interest” definition in the statute?  That question is central to a suit pending in DC Superior Court.

CONTINUE READING . . .

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Superior Court Opinion Shows Why We Need a Federal anti-SLAPP Statute

In December 2017, three “international businessmen” sued Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Donald Trump, in DC federal court. The suit alleged that certain statements contained in one of the reports prepared by Steele were false and defamatory. Although Fusion and GPS filed an anti-SLAPP special motion to dismiss, it is unlikely the federal district court will even entertain that motion; rather, I anticipate Judge Leon will join his three colleagues (here, here and here) who have held the statute cannot be applied in federal court.

Meanwhile, in April 2018, the same three plaintiffs sued Christopher Steele and Orbis Business Intelligence in DC Superior Court. In Superior Court, unlike federal court, the DC anti-SLAPP statute is available. So Steele and Orbis filed an anti-SLAPP special motion to dismiss, which the Superior Court has now granted, ending the case with prejudice.

CONTINUE READING . . .

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Anti-SLAPP Statute Can’t Be Used Against Subpoena

Two years ago, I blogged about the anti-SLAPP special motion to dismiss filed by the Competitive Enterprise Institute in response to a non-party subpoena served by the Virgin Islands Attorney General. CEI maintained the subpoena, which sought documents relating to climate change and ExxonMobil, was aimed at silencing debate on a matter of public interest. So it filed an anti-SLAPP special motion to dismiss the subpoena.

The DC anti-SLAPP statute requires a party to first show the “claim” arises from an act in furtherance of the right of advocacy on issues of public interest. The statute defines “claim” as “any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” CEI argued the subpoena fell comfortably within this definition.

In my June 2016 blog post, I noted another Superior Court judge had already rejected the argument a subpoena was within the definition of “claim” for purposes of an anti-SLAPP special motion to dismiss. The VanderSloot court held that, if the DC Council wanted to include “subpoena” within the definition of “claim,” it knew how to do so (as evidenced by the fact it created a separate section of the statute dealing with subpoenas). The VanderSloot court also held a subpoena was different from the other categories of pleadings delineated in the statutory definition of “claim.”

In an opinion issued last Friday, the Virgin Islands court reached the same conclusion. Like the VanderSloot court, the Virgin Islands court concluded that, by addressing subpoenas in DC Code §16-5503 (the special motion to quash section), without including subpoenas in the definition of “claim,” the DC Council must not have intended “claim” to include subpoenas. Like the VanderSloot court, the Virgin Islands court held the first five examples of “claim” in the statutory definition (“any civil lawsuit, complaint, cause of action, cross-claim or counter-claim”) all differ from a subpoena because they involve a request for relief from the court, and not a request for information from a party or other person.

Next, the Virgin Islands court held the term “other judicial pleading” in the statutory definition of “claim” did not include subpoenas because Superior Court Rule 7(a) limits pleading to “complaints and answers, replies to counterclaims, answers to cross-claims, and third party complaints and answers.” Finally, like the VanderSloot court, the Virgin Islands court held that, because subpoenas are not a “judicial” filing or a “filing requesting relief,” as those terms are commonly used in judicial proceedings, the subpoena did not qualify under the catch-all provision of the “claim” definition. The court thus denied CEI’s motion to dismiss. It also denied CEI’s motion for fees under the anti-SLAPP statute, holding that, because the statute did not apply to the subpoena, CEI was not a prevailing party.

The DC anti-SLAPP statute allows the court to award fees and costs to the non-moving party if the motion “is frivolous or is solely intended to cause unnecessary delay.” The Virgin Islands Attorney General argued that standard was satisfied here because it had already agreed to withdraw the subpoena before CEI filed its anti-SLAPP special motion to dismiss. The court accepted CEI’s argument that the threat of future litigation (if the Virgin Islands re-served the subpoena) did not render the motion moot/frivolous, so it denied the Virgin Islands’ request for fees.

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It’s déjà vu all over again

Three “international businessmen” claim they were defamed by certain statements contained in one of the reports comprising the “Trump Dossier.” The one-count defamation complaint against persons involved in the dossier’s creation alleges one (out of 17) reports in the dossier made false and defamatory statements about the plaintiffs. The defendants respond to the complaint by filing an anti-SLAPP special motion to dismiss.

If this sounds familiar, you are not experiencing déjà vu. The same three plaintiffs sued Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Donald Trump, in DC federal court last year. In that suit, which remains pending before Judge Leon, Fusion and Simpson have filed an anti-SLAPP special motion to dismiss (see prior blog entries on the federal court suit here and here).

CONTINUE READING . . .

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Superior Court Grants Anti-SLAPP Motion And Dismisses Tortious Interference Claims Against PBS

The D.C. anti-SLAPP statute has most often been used in cases involving claims of defamation. See Boley v. Atlantic Monthly Group; Moore v. Costa. It has also been successfully invoked in cases involving defamation-related claims. See, e.g., Farah v. Esquire Magazine, Inc. (false light invasion of privacy, Lanham Act, misappropriation invasion of privacy); Forras v. Rauf (false light, assault, intentional infliction of emotional distress). We can now add intentional interference with existing contracts and tortious interference with business expectancies to the list of claims against which a successful anti-SLAPP special motion to dismiss has been made.

CONTINUE READING . . .

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Update on Two Cases Where Anti-SLAPP Special Motions to Dismiss Have Been Filed

In January, I wrote about anti-SLAPP special motions to dismiss filed by the Trump Campaign and Roger Stone in response to a DC federal court suit alleging they “entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President.”

CONTINUE READING . . .

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Interesting Arguments in Fridman v. Bean LLC Briefs on Anti-SLAPP Special Motion To Dismiss

In February, I wrote about Fridman v. Bean LLC, where “three international businessmen” claim they were defamed by certain statements in one of the reports comprising the “Trump Dossier.” The defendants (Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Trump) filed an anti-SLAPP special motion to dismiss the suit.

The plaintiffs have filed their opposition to the anti-SLAPP special motion to dismiss, and the defendants have filed their reply brief. Beyond the usual sparring over whether Mann means the statute can again apply in a federal court case, both briefs raise interesting arguments worth exploring in more detail.

CONTINUE READING . . .

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Third DC District Court Judge Reaffirms that DC anti-SLAPP Statute Inapplicable In Federal Court

Last April, a picture was taken of Cassandra Fairbanks and Mike Cernovich in the White House press room flashing an ok hand gesture. At the time, rumors circulated on the Internet that the ok hand gesture meant “white power.” So Emma Roller, a politics reporter, tweeted Fairbanks’ photo to her followers with the statement “just two people doing a white power hand gesture in the White House.” Roller then sent a second tweet in which she linked to an entry in the Anti-Defamation League Hate Symbols Database for White Power (hand sign). The ADL, however, then issued a press release in which it explained the ok sign was not a white power symbol, but was instead the creation of internet hoaxers.

Indeed, Fairbanks sent out tweets acknowledging that Roller had been the victim of the hoax, and laughing at her. Then she sued Roller for defamation, false light, intentional infliction of emotional harm, and negligent infliction of emotional distress, based on the first tweet. Before Roller filed a responsive pleading, Fairbanks amended her complaint to drop all the causes of action except the first one for defamation per se.

Roller moved to dismiss the complaint, arguing the tweet was protected opinion that was not capable of being proven true or false or, alternatively, that the suit should be dismissed because Fairbanks had not pleaded facts showing the tweet was published with actual malice.

Roller filed a companion anti-SLAPP special motion to dismiss in which she argued that, although the DC Circuit (in Abbas) held the anti-SLAPP statute was inapplicable in a federal court diversity case, that conclusion was based on that court’s prediction the standard under the statute was inconsistent with the Federal Rules of Civil Procedure. Roller argued that, because the DC Court of Appeals (in Mann) then held, as a matter of “first impression,” that the statute’s “likely to succeed” standard was, in fact, “substantively the same” and does “simply mirror” the standards imposed by Federal Rule 56, the factual underpinning for the Abbas decision was no longer valid, and the court should apply the statute in federal court.

Fairbanks, as you might expect, argued the federal district court was bound to follow Abbas; that Mann did not change the law; and that Judge Huvelle’s Deripaska decision (which refused to apply the statute in federal court even after Mann) was correct and should be followed here. Fairbanks also argued the suit did not arise from an act in furtherance of the right of advocacy on issues of public interest, she was likely to prevail on the merits, and the statute was unconstitutional (because it required the court to make determinations of disputed issues of material fact and weigh evidence, and thus violated the Seventh Amendment right to a jury trial).

Fairbanks’ Seventh Amendment argument ignored that the DC Court of Appeals (in Mann) specifically interpreted the standard to avoid this issue. Roller’s reply brief pointed this out, in addition to arguing the federal court was obligated to follow the DC Court of Appeals’ Mann decision, because it had “spoken clearly and unmistakably to the current state of D.C. law.”

Last week, the DC federal court granted Roller’s 12(b)(6) motion to dismiss Fairbanks’ Complaint. The court sidestepped the question of whether the tweet was opinion or factual because, in the court’s view “actual malice presents a clearer question and requires dismissal of the case.” The court noted that Fairbanks conceded she was a “public figure,” which required her to plead facts showing that Roller published the tweet with actual malice. It held Fairbanks had not satisfied this demanding standard because: (1) she had not pleaded facts sufficient to support her conclusory allegation that Roller knew the falsity of her statement; (2) her assertions that Roller failed to perform due diligence consistent with professional standards of journalism or had a motive to smear Fairbanks’ reputation as a competing grassroots journalist were insufficient to show actual malice; and (3) Roller’s alleged failure to correct her statement did not show she had actual malice when she published it. According to the court:

Especially given the public debate about the “okay” hand gesture at the time of Ms. Roller’s tweet, Ms. Fairbanks’ allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller—whether because the gesture was actually offensive or because they would think that it was offensive—not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.

Turning to the anti-SLAPP special motion to dismiss, Judge McFadden joined Judges Huvelle and Mehta in holding that, even after Mann, the DC anti-SLAPP statute cannot apply in a federal court diversity case. The court reasoned that, while the Mann court held the anti-SLAPP standard mirrored that found in the Federal Rules of Civil Procedure, the statute still conflicted with the Federal Rules because it inverted the burdens:

But like a mirror, the anti-SLAPP statute reverses the image that it reflects: Mann agrees with Abbas that the statute differs from Rule 56 by requiring the plaintiff to show a likelihood of success on the merits instead of placing the burden on the defendant. Id. And Mann adds that the statute’s dismissal standard differs from Rule 12 by requiring the plaintiff to produce evidence rather than allowing the plaintiff to rely on the allegations in her complaint. Id. at 1233; see also Libre by Nexus, 2018 WL 2248420 at *9. In short, Mann does not align the District’s anti-SLAPP statute with the Federal Rules.

* * *

[Mann] does not show that the anti-SLAPP statute should apply in federal court. So I am bound by the law of the Circuit and must dismiss Ms. Roller’s anti-SLAPP motion.

For those who looked at Mann as providing a glimmer of hope that the DC anti-SLAPP statute would again be available in federal court, the Fairbanks decision, coming after the Deripaska and Libre by Nexus decisions, is disheartening. While the DC Circuit was always going to be the final arbiter on this question, its hard to imagine a DC federal district judge applying the statute until the Circuit revisits and decides the issue. As always, stay tuned.

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DC Federal Court Holds Anti-SLAPP Statute Does Not Apply in Federal Question Jurisdiction Case

In its Abbas decision, the DC Circuit held that, because it believed the standard contemplated by the DC anti-SLAPP statute conflicted with the standards required under Federal Rules of Civil Procedure 12 and 56, the statute could not apply in a federal court diversity case. Although the DC Court of Appeals in Mann then stated that “the standard to be employed by the court in deciding whether to grant the motion” “is substantively the same” as that under the Federal Rules, two DC federal district judges have nevertheless held the DC anti-SLAPP statute still cannot apply in a federal court diversity case (discussed here and here).

A reader recently brought another opinion to my attention: issued in January in Democracy Partners v. Project Veritas Action Fund. There, Democracy Partners sued various defendants for allegedly infiltrating its offices through misrepresentations, stealing confidential documents, and secretly recording hours of conversations.

In January, Judge Huvelle denied defendants’ motion to dismiss the complaint. The court’s opinion also denied a companion anti-SLAPP special motion to dismiss filed by the same defendants. While that, by itself, is not particularly notable (because, as the opinion notes, Judge Huvelle had already held that Abbas foreclosed applying the anti-SLAPP statute in a federal court diversity case, even after Mann), the opinion is noteworthy because jurisdiction in the Democracy Partners case was based on federal question, and not diversity of citizenship. As the court’s opinion explained, “[d]efendants contend that this distinction is significant, asserting that the Abbas decision is ‘not controlling where the court’s jurisdiction [over a state law claim] is based on the presence of a valid federal question.’”

The Democracy Partners opinion finds this distinction to be without a difference. The court explained that, in its Abbas decision, the DC Circuit applied the Supreme Court’s Shady Grove opinion, which has not been limited to diversity jurisdiction cases. Thus, the court concludes that Shady Grove and, by extension, Abbas, apply to a case based on federal question jurisdiction in the same way they apply to a case based on diversity jurisdiction.

The Democracy Partners opinion explains that “any other conclusion would create an irrational distinction in the treatment of identical state law claims.” Of course, one could argue that, by refusing to apply the DC anti-SLAPP statute in federal court, although it applies to the same claims in Superior Court, the DC Circuit has “create[d] an irrational distinction in the treatment of identical state law claims”! Anyway, the DC federal district court, for the first time I believe, holds the DC anti-SLAPP statute does not apply to those DC claims brought in a federal court case grounded in federal question jurisdiction.

 

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