The defendants in the Lehan v. Fox Television case today filed their reply brief in support of their anti-SLAPP motion.
In response to Lehan’s primary argument that the statute cannot be applied “retroactively,” because it was passed after the allegedly defamatory story aired and substantively changed the burden for libel plaintiffs, defendants argue that: (a) retroactivity simply turns on whether the statute makes it harder for Lehan to win the lawsuit; (b) both before, and after, the passage of the anti-SLAPP statute, Lehan had the same burden (e.g., he needed to show a false statement, that was defamatory, made without privilege, with the requisite degree of fault, resulting in damages); so (c) the statute did not change his burden and therefore applied to the case.
According to the defendants, the anti-SLAPP statute does not alter the elements of plaintiff’s defamation claim or available remedies, but merely accelerates the timing of a potentially dispositive motion: “Plaintiff must still prove all elements of falsity, fault, non-privilege and damages, under the same substantive burdens provided in existing Supreme and Court of Appeals First Amendment and common law precedent. The District’s new law merely shifts the order of presentation of proofs required to maintain a SLAPP in this type of defamation action.” The defendants also note that the statute predated the filing of the Lehan complaint.
The remainder of the defendants’ reply brief argues that the subject of the news story (a report on a government investigation of local firefighter overtime pay) was indisputably an issue of public interest and that the plaintiff has not shown a likelihood of success on the merits because he has provided by evidence the defendants acted with actual malice or that he suffered any damage.