As I predicted last month, the plaintiffs’ primary argument is that the statute violates the DC Home Rule. This argument was first made by Dan Snyder in his opposition to the anti-SLAPP motion filed by the City Paper and its reporter. It was later obliquely adopted by the plaintiff in the Farah v. Esquire case.
When Snyder made the argument, the DC Attorney General promptly moved to intervene in that case for the purpose of defending the statute’s constitutionality. That suit was dismissed, however, before that issue was briefed and resolved. In the Farah case, however, the DC Attorney General has not moved to intervene in the case to date.
Dean’s Home Rule argument tracks the arguments made by the plaintiffs in Snyder and Farah. He argues, essentially, that it changes the procedure for resolving certain cases in the DC courts and, as such, was beyond the power of the DC Council.
Next, Dean echos the argument made by the plaintiff in the Farah case, which is unsurprising because it is the same counsel, that this suit is not the type of “chilling” litigation that the statute was intended to address. Finally, he argues that he is likely to prevail on the merits.
Given the DC Attorney General’s motion to intervene in Snyder when the constitutionality of the statute was attacked there, I would expect a similar motion here. Also, of course, the defendants will have an opportunity to respond to the plaintiffs’ arguments in their reply brief.