It has been two years since the District of Columbia’s anti-SLAPP statute first became effective. To date, anti-SLAPP motions have been granted in a Superior Court case (Lehan v. Fox), denied in a Superior Court case (Newmyer v. Huntington), granted in a federal court case (Farah v. Esquire), and denied in two federal court cases (Sherrod v. Breitbart and 3M v. Boulter). Anti-SLAPP motions have also been made in five other Superior Court cases:
- Snyder v. City Paper (resolved when the plaintiff voluntarily dismissed the suit);
- Dean v. NBC Universal (dismissed as a sanction for the plaintiff’s refusal to pay the defendants’ fees in order to refile the suit in federal court; currently on appeal);
- Payne v. District of Columbia (libel suit arising out of statements about the termination of the plaintiff’s employment; an anti-SLAPP motion is pending);
- Campbell v. CGI Group, Inc. (the plaintiff alleges that defamatory statements by the defendants led to her termination as a DC employee; an anti-SLAPP motion is pending); and
- Mann v. National Review (the plaintiff alleges that the defendants libeled him in a blog post; an anti-SLAPP motion is pending).
One of the interesting developments has been the type of defendants that have invoked the statute. In the statute’s legislative history, the DC Council noted that a typical SLAPP suit involved “an effort to stop a citizen from exercising their political rights, or to punish them for having already done so.” It cited an example provided by the American Civil Liberties Union of the Nations Capitol which involved an alleged retaliatory lawsuit by a developer against grassroots advocates who opposed his efforts. The Reporters’ Committee for Freedom of the Press provides a similar example of neighbor vs. neighbor litigation as the reason why states should enact anti-SLAPP legislation.
In those cases in which defendants have filed anti-SLAPP motions (counting the two Dean v. NBC cases as one), however, the moving parties have included “established” media (NBC, Rachel Maddow, Fox Television, City Paper; Hearst Publications; National Review; a division of the Washington Post; The Atlantic); a relatively well-known blogger (Andrew Breitbart); a well known lawyer and consultant (Lanny Davis); and the District of Columbia.
This fact has not gone unnoticed by plaintiffs. In responding to an anti-SLAPP motion made against him by Foreign Policy Magazine and its contributor, Yasser Abbas argued that “[n]either defendant was engaged in any kind of ‘grassroots activism’ when they defamed Plaintiff. . . ”. And the Superior Court appeared to accept a similar argument in denying an anti-SLAPP motion made by Newmyer: “it suffices to note that there is no economic bullying here by Dr. Huntington, and his claims are not likely to deter Mr. Newmyer from being heard on his contentions.”
But the size or resources of the moving party should not affect the availability of the anti-SLAPP statute. In fact, even outside the SLAPP statute context, courts have acknowledged that defamation suits can impose a burden on the press, draining resources that could otherwise go to stories, resulting in a chilling effect:
[t]he threat of prolonged and expensive litigation has a real potential for chilling journalistic criticism and comment upon public figures and public affairs. Furthermore, the prospect of delay attendant upon any defamation trial, no matter how expeditiously handled, may inhibit the full and free exercise of constitutionally protected activities.
Myers v. Plan Takoma, Inc., 472 A.2d 44, 50 (D.C. 1983).
Indeed, in their reply brief, the defendants in the Abbas suit made exactly this point:
Plaintiff first suggests that these Defendants somehow fall out of the protection of the Anti-SLAPP act because they are not “normal,” “middle-class” Americans to which the statute should apply, but rather are “sophisticated people in the political arena.” Opp. 1, 18-19. Plaintiff’s implication that persons such as Dr. Schanzer or the editors of FP are abnormal and something other than middle class Americans, along with the suggestion that the statute’s reach depends upon that kind of stereotyping, is both troubling and devoid of any basis in law. Nowhere does the Act state that its applicability is limited in any such way, and with respect to FP, courts have already applied the statute to media entities. . . . In fact, the only criteria for invoking the statute is whether Defendants engaged in “an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502(a).
Further, while the DC Council highlighted the “typical” SLAPP suit, the legislative history makes clear that the concern animating the council was the use of lawsuits “to muzzle speech,” which require a defendant to “dedicate a substantial amount of money, time and legal resources” in defense, and thus “achieve their filer’s intention of punishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected rights.” The right to speak and publish belongs to all parties, irrespective of their size or wealth.
Additionally, it is possible that the data masks the fact that the DC anti-SLAPP statute is having its intended effect of reducing suits on matters of public interest. For example, a recent case in Virginia, where a construction contractor sued a woman who made comments about her experience on a Yelp discussion board, appears to be the more “typical” type of suit contemplated by the DC anti-SLAPP statute. In an article about the suit, the attorney representing the woman suggested that the suit was filed in Virginia to avoid application of the DC anti-SLAPP statute:
“I don’t think there is any question that if [the plaintiff Christopher] Dietz had to file this case in a jurisdiction with an anti-SLAPP law he would not have filed at all,” Levy said noting that Dietz did not file in his home district, Washington, D.C., where such a law exists.
To the extent that is accurate – that the more “typical” SLAPP plaintiff is avoiding DC because of the anti-SLAPP statute and its protections (including the awarding of fees to a moving party for a successful motion) – that might explain the above data. Nevertheless, the experience in DC with the anti-SLAPP statute got me wondering if it was an anomaly, or consistent with the experience in other jurisdictions.
In June 2011, Texas enacted an anti-SLAPP statute. According to the wonderfully named slappedintexas.com and my own independent research, several of the cases have been “typical” SLAPP suits. For example, successful anti-SLAPP motions were made by individuals sued by mortgage company for comments they made on online forum about the company, individuals sued over a Yelp review, the Better Business Bureau in response to a suit over a poor rating, individuals in a neighborhood who spoke out against a nightclub, and were sued by its owner, and an individual who accused a police officer of corruption. An anti-SLAPP motion has also been filed in a suit where a company alleges that individual defendants defamed it when they asserted that it contaminated their water well with its nearby fracking operations and in a dispute between two neighbors over a domain name.
Interestingly, the Texas anti-SLAPP statute has been invoked in two suits involving political candidates: one where an individual alleged he was defamed in a campaign video by two candidates for State Board of Education, and the other where a candidate sued his opponent, alleging that her advertisement was libelous.
Like the District of Columbia, the statute has also been invoked by “established” media, including a newspaper sued by two men whose photos were erroneously distributed in connection with a robbery and a well-known medical journal which asserted a doctor’s study was fraudulent.
While it is interesting to note that the Texas suits to date have been more “typical,” I suspect that the DC experience will come to mirror that in other jurisdictions in the years ahead.