The defendants in a lawsuit captioned Sherrod v. Breitbart today filed a motion to dismiss the suit under DC’s recently-enacted anti-SLAPP statute. This appears to be the first use of the anti-SLAPP statute, which only became effective on March 31.
The complaint, which was originally filed in DC Superior Court on February 11, 2011, and removed by the defendants to federal court on March 4, 2011, asserts claims for defamation, false light and intentional infliction of emotional distress stemming from the defendants’ alleged selective editing and dissemination of a videotape featuring the plaintiff.
It names as defendants Andrew Breitbart, the author and publisher of the blog post that contained the allegedly defamatory statements; Larry O’Connor, who posted the allegedly misleading edited video segment used in the blog post; and an unnamed individual who allegedly was involved in the editing of the blog post.
The defendants’ memorandum in support of their motion argues that, because the plaintiff was a public official at the time the statements at issue were published, and because those statements concerned issues of public concern, the lawsuit must be dismissed. It argues that she cannot show, as she must, that she is likely to succeed on her claims and, as a result, the anti-SLAPP motion must be granted.
Interestingly, the defendants’ memorandum also argues that the Court does not need to decide the anti-SLAPP motion if it grants a concurrent motion to dismiss the case or to transfer it to California. It suggests that the Court schedule a conference to discuss how it must, and in which order, address the various motions.
One issue that is sure to be hotly disputed by the plaintiff is the defendants’ contention that the anti-SLAPP statute, which only became effective on March 31, applies to the suit, which was first filed on February 11. The defendants’ position is that the statute “is retroactive and applies to cases pending at the time of its enactment.” I suspect that the plaintiff will have a different view.