The Atlantic Monthly Group and a correspondent have filed an anti-SLAPP/Rule12(b)(6) motion in DC federal court in response to a Complaint by George Boley. The pro se Complaint, filed January 22, 2013, alleges that statements in a January 2010 article and February 2010 follow-up post on the Atlantic website defamed him by stating that he was a warlord in his native Liberia. It seeks compensatory and punitive damages.
The defendants’ brief in support of their anti-SLAPP and Rule 12(b)(6) motions first chronicles Boley’s tenure as leader of the Liberian Peace Council, citing to and quoting from a U.S. State Department report on Liberian Human Rights Practices and the Liberian Truth and Reconciliation Commission to support its thesis that the articles were accurate. The defendants also assert that Boley has a history of using litigation to attack critics.
At their core, the defendants argue, the articles accurately described “official investigations into Boley’s war crimes” and “report widely available facts.” Consequently, they argue, the defamation suit must be dismissed because it is barred by: (a) the one-year statute of limitations; and (b) the fair report privilege, which protects the reporting of official reports and proceedings. They also argue that the Complaint does not plead facts in support of the required elements of falsity or fault, and should be dismissed for these additional reasons.
Interestingly, the defendants’ brief first argues that dismissal is appropriate under Rule 12(b)(6) and, almost as an afterthought, argues that dismissal is also appropriate under the anti-SLAPP statute. This is undoubtedly by design; rather than get into a protracted dispute over whether the DC anti-SLAPP statute applies in federal court (the so-called “Erie” issue from Sherrod v. Breitbart, Farah v. Esquire and Abbas v. Foreign Policy Group, LLC), the defendants are arguing that, even under the more generous Rule 12(b)(6) standard, the Complaint still fails to state a claim and must be dismissed. This is the same strategy that Esquire has taken at the DC Circuit, arguing to that Court that “[t]he simplest basis on which to affirm the dismissal of Plaintiffs’ claims is under Fed. R. Civ. P. 12(b)(6).”