Judge Collyer today became the first federal court judge to grant an anti-SLAPP motion in federal court. Previously, Judge Leon denied an anti-SLAPP motion filed in Sherrod v. Breitbart and Judge Wilkins denied an anti-SLAPP motion filed in 3M v. Boulter. (Of course, Judge King of the DC Superior Court granted an anti-SLAPP motion in Lehan v. Fox).
The Farah opinion explains that the anti-SLAPP statute “‘incorporates substantive rights with regard to a defendant’s ability to fend off lawsuits filed by one side of a political or public policy debate aimed to punish the opponent or prevent the expression of opposing points of view,’” and find that “[t]his is just such a suit.”
While noting the contrary opinion in Sherrod v. Breitbart, the opinion expressly rejects the argument that the anti-SLAPP statute is procedural, and thus inapplicable in federal court: “Plaintiffs assert that the Anti-SLAPP Act is procedural and thus inapplicable here because federal courts must apply federal procedural laws. Other courts have disagreed. The Court finds this latter view persuasive. It was certainly the intent of the D.C. Council and the effect of the law – dismissal on the merits – to have substantive consequences.”
Turning to the merits of the motion, the court holds that the blog post was clearly within the scope of the statute because it “contained an expression of views that communicated to members of the public in connection with an issue of public interest, i.e., the dispute over whether President Obama qualifies by birthright to be President of the United States.” It squarely rejects the plaintiffs’ argument that the post was commercially motivated, pointing to numerous public comments, including many by the plaintiffs, as evidence that this is an issue of public interest.
After finding that the blog post is satire on a matter of public interest, the opinion quickly disposes of the defamation, false light invasion of privacy, tortious interference with business relations and misappropriation invasion of privacy. Finally, it rejects the plaintiffs’ Lanham Act claims, finding that the “speech” at issue was “satirical speech on a matter of public interest and not commercial speech” and that, “[b]ecause the expression cannot be characterized as commercial speech, the Lanham Act does not apply.”
I suspect that the Farah plaintiffs will appeal the decision to the DC Circuit, especially given the disagreement over whether the anti-SLAPP motion applies in federal court.