One of the interesting things about the Doe v. Burke II appeal is the Superior Court’s reasoning that, although the complaint was dismissed under the DC anti-SLAPP statute, no attorneys’ fees were warranted because the case was not a “classic” SLAPP. The decision struck me as interesting because numerous movants have argued that their case is a “classic” or “typical” SLAPP. As I explain below, while every movant undoubtedly would like to argue that its case presents a “classic” SLAPP, routinely doing so has the potential to distract the court and could result in legitimate anti-SLAPP motions being denied because the court focuses on whether the case is a “classic” SLAPP, instead of focusing on whether it satisfies the requirements of the statute.
First, some background. The DC anti-SLAPP statute’s legislative history included an example of the type of “David v. Goliath” litigation the statute was aiming to address:
In one of the examples provided, the ACLU discussed the efforts of two Capitol Hill advocates that opposed the efforts of a certain developer. When the developer was unable to obtain a building permit, the developer sued the activists and the community organization alleging they “conducted meetings, prepared petition drives, wrote letters and made calls and visits to government officials, organized protests, organized the preparation and distribution of . . . signs, and gave statements and interviews to various media.”
This developer vs. activist scenario easily fits into the model of a “classic” SLAPP suit. But the DC Council did not limit the DC anti-SLAPP statute only to “David v. Goliath” suits; rather, it broadly defined the type of conduct that falls within the scope of the statute (oral or written statements or other expressive conduct) in a variety of forums (in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, in a place open to the public or a public forum in connection with an issue of public interest).
To be sure, since its enactment, the DC anti-SLAPP statute has been invoked in several cases that have all the hallmarks of a “classic” David v. Goliath SLAPP. The lawsuit by Kaalbye, “an experienced prominent shipping group,” against a not-for-profit organization (C4ADS) looked like a “prototypical SLAPP attempt,” as C4ADS argued in its brief. And Dr. Akl’s lawsuit against a Yelp commentator appeared to be a “classic SLAPP,” as the defendant argued in his anti-SLAPP MOL.
But what constitutes a “classic” SLAPP is in the eye of the beholder. When Andrew Breitbart argued that Shirley Sherrod’s lawsuit was a “Classic SLAPP” or when Esquire argued that Joseph Farah’s lawsuit was a “classic SLAPP,” it invited their opponents to argue that “this case is not the type of case that the legislatures intended to prevent” (Joseph Farah); “Plaintiff is not trying to ‘intimidate into silence’ the Defendants” (Yassar Abbas); “the instant suit is not the type of action that the D.C. Council had in mind when it enacted the Anti-SLAPP law” (Eric Payne); and “Ms. Burke is not trying to silence public debate” (Susan Burke ).
Opening the “classic/typical” SLAPP door also invites the court to focus on whether the lawsuit fits the paradigmatic “David v. Goliath” framework. That can result in troubling decisions where court denies an anti-SLAPP motion because it is not a “typical” or “classic” SLAPP, even though it otherwise falls within the statute’s scope.
For example, in Newmyer v. Huntington, in opposing the anti-SLAPP motion filed by Newmyer, Huntington argued that his claim was not a classic SLAPP because “Dr. Huntington is seeking monetary damages – he is not trying to chill Mr. Newmyer’s ‘constitutionally protected rights.’” The Superior Court agreed:
there is no other indication that this is a claim designed to silence or punish one for speaking out on issues of public importance. . . . [T]here is no economic bullying here by Dr. Huntington, and his claims are not likely to deter Mr. Newmyer from being heard on his contentions. . . . Of course, the statute is available to any litigant, rich or poor, who can assert its substantive protection to shield against harassing lawsuits; however, it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation.
Similarly, in opposing the anti-SLAPP motions filed against him, Dr. Mann argued that his lawsuit was not a classic SLAPP: “Unlike a traditional SLAPP suit, there is no economic bullying here, and Dr. Mann is certainly not a ‘large private interest [aiming] to deter common citizens from exercising their political or legal right[s].’” And in opposing an anti-SLAPP motion filed by Channel 5, Lehan argued that “there is no economic bullying here.”
The fact is that, while the David v. Goliath scenario is often found in SLAPP suits, it is not the only evidence that a lawsuit falls within the scope of the statute and, more importantly, is not a requirement for granting an anti-SLAPP motion. By myopically focusing on whether the lawsuit is a “classic” SLAPP, parties risk distracting the Court from the true analysis: whether the lawsuit falls within the scope of the statute.