Today, Dan Snyder filed his opposition to the motion filed by the City Paper and Dave McKenna under DC anti-SLAPP statute. Snyder’s opposition argues that the anti-SLAPP statute is unconstitutional because, under DC’s Home Rule, the DC Council has no authority to legislate in areas concerning the DC courts. The opposition argues that, because the anti-SLAPP statute materially changes the procedural rules in DC courts (by, for example, staying discovery pending the resolution of the anti-SLAPP motion), it violates DC’s Home Rule and, as a result, is unconstitutional.
The anti-SLAPP statute’s legislative history notes that “Attorney General for the District of Columbia, Peter Nickles, expressed concern that certain provisions of the bill might implicate the Home Rule Act prohibition against enacting any act with respect to any provision of Title 11 of the D.C. Official Code.” In that letter, the then-DC Attorney General wrote that, “[t]o the extent that sections 3 (special motion to dismiss) and 4 (special motion to quash) of the bill would impact SLAPPs filed in the Superior Court of the District of Columbia, the legislation may . . . conflict with the Superior Court’s rules of civil procedure and, consequently, violate section 602(a)(4) of the Home Rule Act insofar as that section preserves the D.C. Courts’ authority to adopt rules of procedure free from interference by the Council.”
Snyder’s opposition asserts that, while the defendants argued that the anti-SLAPP statute provides substantive immunity, there can be no serious dispute that the statute changes the procedural rules and is thus barred by the Home Rule.
Snyder’s opposition also argues that, in any event, the anti-SLAPP statute cannot simply apply to all speech involving public figures and that some subset of such speech (involving purely private interests) is not covered by the statute. It argues that the subject of the commentary here – an allegation that Snyder committed forgery, broke federal law when he cut down trees, and was removed from the board of directors of Six Flags – deal with “matters that are remotely of public concern; nor are they topics of public controversy, dispute, charge or allegation.”
Finally, it argues that Snyder has demonstrated a likelihood of success on the merits sufficient to overcome the anti-SLAPP motion. It argues that, at a minimum, it can defeat a motion for summary judgment, and that this should be sufficient to defeat the defendants’ motion.
Of the many arguments in the 40-page opposition, the attack on the constitutionality of the ant-SLAPP statute would appear to be the most serious. As I noted above, similar concerns about the Home Rule were raised at the time the statute was under consideration by the DC Council. The amicus brief submitted by several parties, including DC Councilmember Mary Cheh, does not address this argument. As a result, I would expect the DC Attorney General or the DC Council to ask the Court for permission to be heard on this critical topic. Of course, the defendants will be able to respond to it in their reply brief.