The DC anti-SLAPP statute has been invoked in another case: Dean v. NBC Universal. There, NBC, MSNBC and Rachel Maddow moved today to dismiss the suit under the anti-SLAPP statute or for failure to state a claim
In the complaint, filed July 27 in DC Superior Court, the plaintiff alleges that he is “a renowned and accomplished hard metal rocker who came to Jesus Christ” and has “founded a non-profit foundation” (which is also a plaintiff) whose “mission is to restore Judeo-Christian and family values to society and for posterity, particularly by positively influencing the nation’s youth.”
The complaint alleges that the defendants are part of a left-wing, pro-gay rights conspiracy, and that they defamed him falsely asserting that he favored the execution of homosexuals. Additionally, the complaint alleges, the defendants omitted other statements made by the plaintiff, and thereby placed him in a false light. The complaint asserts that Maddow/MNSBC’s actions were somehow intended to damage Congresswoman Michelle Bachmann, who has some affiliation with the plaintiffs’ organization.
Notably, the plaintiffs’ counsel, Larry Klayman, is the same counsel representing the plaintiff in the Farah case, in which the defendants there (represented by the same firm/attorneys representing the defendants here) filed an anti-SLAPP motion last month.
The anti-SLAPP motion filed by the defendants in the Dean case argues that dismissal is warranted under the anti-SLAPP statute because “the speech challenged in the Complaint arises from an act in furtherance of the right of advocacy on issues of public interest, and Plaintiffs cannot demonstrate that they are likely to succeed on the merits of their claims.” The motion alternatively argues that dismissal is required because the complaint fails to state a claim upon which relief may be granted.
The memorandum argues that this is a quintessential SLAPP suit, brought “to silence their critics and bring attention to their cause, to discourage criticism of Presidential candidate Michele Bachmann . . . and to condemn and punish the MSNBC parties for what Plaintiffs view as ‘leftist, socialist, activist, gay rights, pro-choice, pro-government and anti-religious’ views.” It argues that the challenged statements, made during two 2010 broadcasts of the Maddow show, clearly fall within the scope of the statute (requiring that the defendants engage in an act in furtherance of the right of advocacy on issues of public interest) because they “discussed current political candidates, their views on homosexuality and their controversial and highly-publicized associations with certain individuals, including Dean.” It thus argues that the plaintiff must show that they are likely to succeed on the merits, which they cannot do.
According to the defendants, the allegedly defamatory statements were either: (a) not made by Maddow; or (b) were actually made by Dean. They argue that, under the law, they had no obligation to include the entirety of Dean’s comments, nor do they have any legal responsibility to broadcast his subsequent comments on the topic.
The defendants also argue that other challenged statements are legally protected opinion that could not be understood by the average listener/viewer to refer to Dean. In a nice touch, to illustrate their point, they discuss a case involving a libel claim by the plaintiffs’ counsel against the Washington Post, where the court held that a similar claim was dismissed.
Finally, the defendants argue that certain other challenged statements are protected rhetorical hyperbole or protected under the fair comment privilege because the listener/viewer could listen to the source material (Dean’s own words). Because the plaintiffs cannot show that they are likely to succeed on the merits of their defamation claim, the defendants argue, the “tag-along” false light claim similarly fails.
Plaintiffs responding to anti-SLAPP motions to date have made retroactivity, timeliness, Erie and Home Rule arguments. Because the case is pending in Superior Court, Erie is inapplicable. It appears that the motion was timely filed and there does not appear to be a retroactivity argument. As such, I expect the plaintiffs will respond with a combination of a Home Rule argument and an argument that they are likely to prevail on the merits.