Does DC anti-SLAPP statute apply to suit against government official?

The District of Columbia has filed its reply brief in support of its anti-SLAPP motion to dismiss the defamation suit brought by former employee Eric Payne for statements made by the district’s CFO Natwar M. Gandhi concerning Payne’s termination as contracting director for the Office of the CFO.

Payne argued in his opposition brief that the D.C. Council did not intend the anti-SLAPP statute to apply to suits by private citizens against government officials.  He noted that the D.C. anti-SLAPP statute was modeled after the California statute and cited D.C. and California cases stating that anti-SLAPP motions are generally used to protect the free speech of private citizens against frivolous claims brought by larger private interests. 

In its reply, the District seized on Payne’s use of California case law by citing a California Supreme Court decision holding that the California anti-SLAPP motion “extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.” Vargas v. City of Salinas, 205 P.3d 207, 216 (Cal. 2009).

Although Payne argued that granting anti-SLAPP protection to government officials and entities would chill the speech of private citizens, the District of Columbia again cited Vargas, which found that the legislative history of an amendment to the California statute suggests lawmakers were concerned about the chilling effect of SLAPPs on the speech of government officials.  The District of Columbia cites a December 2012 incident, in which Gandhi was allegedly reticent to testify openly to the D.C. Council’s Committee on Finance and Revenue because of Payne’s willingness to sue, as an example of why the anti-SLAPP statute applies here.  The District argued that Payne’s intent in filing suit is not relevant to the application of the anti-SLAPP motion – an argument made on this blog when Payne filed his opposition brief.

The remainder of the brief deals with whether any applicable privilege to Gandhi’s statements was overcome by Payne and whether, in any event, the challenged statements were false and defamatory. 

Damien Smith, a George Mason law student and legal intern with LeClairRyan, authored this blog post.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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One Response to Does DC anti-SLAPP statute apply to suit against government official?

  1. SA says:

    The California Supreme Court is apparently revisiting its holding that government actors are protected by the state’s anti-SLAPP statute. It has granted review in City of Montebello v. Vasquez – a case in which the court rejected the effort of government agents to assert the anti-SLAPP statute. The better view is that the Vasquez court was right in rejecting the government officials‘ use of Sec. 425.16, but the court’s reasoning that voting by government officials should not be protected by the anti-SLAPP statute because it is not First Amendment activity did go far enough. No government conduct is First Amendment activity and no government activity warrants anti-SLAPP protections. Here is a link to a recent law review article dissecting the problem with government use of anti-SLAPP statutes, in paeticular California’s ( Anti-SLAPP Confabulation and the Government Speech Doctrine ) :

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