The plaintiff in the Lehan v. Fox lawsuit has filed his opposition to the anti-SLAPP motion filed last month by the media defendants. Lehan’s primary argument is that the anti-SLAPP statute cannot be applied “retroactively,” because, by increasing a defamation plaintiff’s burden, it provides “substantive” rights. Lehan quotes from the statute’s legislative history to support his argument that it provides “substantive” rights.
Lehan argues that, as such, the statute, which became effective in March 2011, cannot be applied to the case because the allegedly defamatory story was broadcast in January 2011 and a substantive change in the law cannot be applied retroactively, absent clear legislative intent, which Lehan argues, is not present here.
Lehan also argues that he is likely to prevail on the merits because the story broadcast inaccurate details to intentionally place him in a bad light; that the figures cited by the defendants were deceptive, inaccurate and “clearly wrong,” and that the news story was defamatory by falsely stating that he was in charge of the overtime system. He argues that “[t]his case is therefore entirely distinguishable for the type of action the District of Columbia had in mind when it enacted the D.C. Anti-SLAPP Act.”
Unlike the opposition filed by Dan Snyder earlier this week, Lehan’s opposition does not attack the authority of the DC Council to enact the anti-SLAPP statute. Rather, as I predicted last month, the majority of the fire is directed to the retroactivity argument. I would expect the defendants’ reply to echo many of the arguments made by the defendants in Sherrod v. Breitbart.