After a period of relative quiet, there has been a flurry of activity in the District of Columbia federal and state courts in cases involving the DC anti-SLAPP statute. Here’s a summary of where the various cases stand:
• Sherrod v. Breitbart: The case drawing the most attention is the pending appeal in the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart. There, the defendants/appellants have filed their opening brief; the District of Columbia has filed an amicus brief; Public Citizen and the American Civil Liberties Union of the Nation’s Capital have filed an amicus brief; and a consortium of news organizations have filed an amicus brief. This case is likely to be the first opportunity for the Circuit court to address whether the DC anti-SLAPP statute applies in federal court, and whether there is a right to immediately appeal the denial of an anti-SLAPP motion.
In the same case, the defendants/appellants recently asked the DC Circuit to stay discovery in the trial court. Although the anti-SLAPP statute automatically stays discovery when a motion is filed, because Judge Leon denied the anti-SLAPP motion, he has apparently allowed discovery to begin. The defendants/appellants are arguing that, because the case is on appeal, the district court has no jurisdiction to order discovery. (Of course, Ms. Sherrod has argued that there is no right to appeal).
• Farah v. Esquire: The plaintiff’s appeal of the district court’s opinion granting the anti-SLAPP motion and dismissing the case is pending at the DC Circuit. His motion to expedite the appeal was denied by the Circuit court; no briefing schedule has been entered to date.
• 3M v. Boulter: Although the district court granted the defendant’s motion to dismiss the Complaint, it denied his motion brought under the DC anti-SLAPP statute, holding that the statute was not applicable in federal court (opinion discussed here). It remains to be seen if 3M will appeal the dismissal order.
• Dean v. Maddow: On November 14, the DC Superior Court dismissed the case with prejudice because of the plaintiff’s failure to comply with a Court order ordering him to pay the defendants their fees as a condition to being allowed to reassert his case in federal court. The plaintiff is reportedly appealing the decision. (As discussed here, the companion case involving the same parties remains pending in the DC federal court; it is stayed until resolution of the DC Superior Court action).
• Payne v. District of Columbia: On November 14, the defendants moved to dismiss the suit under the DC anti-SLAPP statute. Their memorandum argues that the suit arises from statements made in furtherance of the right of advocacy on issues of public interest because the allegedly defamatory statements were made about claims pending in a court case. It also argues that the plaintiff has made multiple public comments about his termination, thus making it an issue of public interest. Having satisfied their burden, the defendants argue, the suit must be dismissed because the plaintiff cannot show that he is likely to prevail on his defamation and false light claims because: (a) the statements were not defamatory; (b) they were privileged; (c) they were protected opinion; and/or (d) there was no showing that the defendants acted with the requisite fault. The motion argues that the intentional infliction of emotional distress claim fails because the conduct was not sufficiently outrageous, and that the constitutional defamation claim fails because the plaintiff cannot show the required type of damages.
• Mann v. National Review, Inc.: On October 22, this libel suit was filed in the DC Superior court, alleging that the defendants (National Review, Competitive Enterprise Institute and two of their contributors) libeled the plaintiff when they accused him of academic fraud in connection with his work as a climate scientist. The original post at issue, by defendant Rand Simberg, is here; the other post at issue, by defendant Mark Steyn, is here. The defendants’ time to respond to the Complaint has been extended to December 14, 2012. I suspect that they will be filing an anti-SLAPP motion on that date.