Another newspaper has moved under DC’s anti-SLAPP statute to dismiss a complaint alleging libel and related torts. (As I wrote on the two-year anniversary of the statute, it is noteworthy how many movants have been “established” media).
The case has an interesting procedural history. The complaint was originally filed in Virginia in late September 2012, but was then voluntarily dismissed the next day. It was then refiled in DC federal court on December 5, 2012, but not served until almost four months later.
The complaint alleges that, while he was an undergraduate student at the University of Virginia in 2004, the plaintiff had consensual sex with a woman, but that she then reported the encounter as a rape. It alleges that the Commonwealth of Virginia, after investigation, decided against prosecuting the case, and that the plaintiff was twice cleared by the University of Virginia.
Notwithstanding the foregoing, it alleges that, in December 2011, The Hook magazine, which is owned by the defendant, published a story which mentions “Ofori specifically by name, and falsely portray[s] him as a criminal rapist and perpetrator of a sexual assault.” The complaint has three counts: (a) libel; (b) false light; and (c) intentional infliction of emotional distress, and seeks compensatory and punitive damages in excess of $1 million and an injunction against further dissemination of the article.
The defendants’ brief (which is in support of both its anti-SLAPP motion and companion 12(b)(6) motion), argues that the article in question was about the efforts of the alleged victim’s motion to “successfully petition both the Virginia legislature and the United States Department of Education to change how sexual assault and rape charges are handled on college campuses” and, as such, falls squarely within the anti-SLAPP statute because it is about an effort to petition the government on issues of public interest and about an issue under consideration or review by a legislative body. Anticipating a likely Erie argument by the plaintiff, the brief argues that, because the anti-SLAPP statute confers substantive protections, it applies in federal court. (It notes, however, that Judges Kozinski and Paez have urged reconsideration of this issue).
According to the defendant, when the article is viewed in its entirety, it does not suggest that the plaintiff committed sexual assault, but instead accurately reports on the entire proceedings, including the fact that the plaintiff was repeatedly cleared. It argues that, even if the article did not report every fact in the official reports and proceedings, the plaintiff has not shown those facts would have changed the overall impression left by the article, especially given that it included the results of the various proceedings. Additionally, most of the challenged statements are privileged because they are from official reports, the brief argues, which is another reason why the plaintiff is not likely to succeed on the merits. Finally, the brief argues, the intentional infliction of emotional distress and false light counts are transparent attempts to “perform an end-run around a deficient claim for libel”.
An interesting question is whether the DC anti-SLAPP statute even applies to the complaint. The allegedly defamatory article was published in the Charlottesville Virginia area, although it is available online. The plaintiff was apparently attending the University of Pennsylvania at the time of the allegedly defamatory publication, although he now apparently resides in the District of Columbia. Other than the fact he now lives in DC, there does not appear to be any other connection to the District.
DC federal courts generally apply an “interest analysis,” which considers where the plaintiff was domiciled, where he suffered injury by reason of loss of reputation, where the defendant is located and where the story was published. Those factors would appear to suggest the application of Virginia or Pennsylvania law to the claims.
That might be important because, as the District of Columbia observed in an amicus brief it submitted to the DC Circuit in the Sherrod appeal (page 28 n.1), “there is a . . . potential question as to whether the Act applies to claims arising under the laws of jurisdictions other than the District of Columbia.” Similarly, the DC federal court in the 3M case stated that “it is blackletter law that if foreign law applies to define the scope of the tort, then the same foreign law also defines the scope of defenses to that tort.”