Last April, a picture was taken of Cassandra Fairbanks and Mike Cernovich in the White House press room flashing an ok hand gesture. At the time, rumors circulated on the Internet that the ok hand gesture meant “white power.” So Emma Roller, a politics reporter, tweeted Fairbanks’ photo to her followers with the statement “just two people doing a white power hand gesture in the White House.” Roller then sent a second tweet in which she linked to an entry in the Anti-Defamation League Hate Symbols Database for White Power (hand sign). The ADL, however, then issued a press release in which it explained the ok sign was not a white power symbol, but was instead the creation of internet hoaxers.
Indeed, Fairbanks sent out tweets acknowledging that Roller had been the victim of the hoax, and laughing at her. Then she sued Roller for defamation, false light, intentional infliction of emotional harm, and negligent infliction of emotional distress, based on the first tweet. Before Roller filed a responsive pleading, Fairbanks amended her complaint to drop all the causes of action except the first one for defamation per se.
Roller moved to dismiss the complaint, arguing the tweet was protected opinion that was not capable of being proven true or false or, alternatively, that the suit should be dismissed because Fairbanks had not pleaded facts showing the tweet was published with actual malice.
Roller filed a companion anti-SLAPP special motion to dismiss in which she argued that, although the DC Circuit (in Abbas) held the anti-SLAPP statute was inapplicable in a federal court diversity case, that conclusion was based on that court’s prediction the standard under the statute was inconsistent with the Federal Rules of Civil Procedure. Roller argued that, because the DC Court of Appeals (in Mann) then held, as a matter of “first impression,” that the statute’s “likely to succeed” standard was, in fact, “substantively the same” and does “simply mirror” the standards imposed by Federal Rule 56, the factual underpinning for the Abbas decision was no longer valid, and the court should apply the statute in federal court.
Fairbanks, as you might expect, argued the federal district court was bound to follow Abbas; that Mann did not change the law; and that Judge Huvelle’s Deripaska decision (which refused to apply the statute in federal court even after Mann) was correct and should be followed here. Fairbanks also argued the suit did not arise from an act in furtherance of the right of advocacy on issues of public interest, she was likely to prevail on the merits, and the statute was unconstitutional (because it required the court to make determinations of disputed issues of material fact and weigh evidence, and thus violated the Seventh Amendment right to a jury trial).
Fairbanks’ Seventh Amendment argument ignored that the DC Court of Appeals (in Mann) specifically interpreted the standard to avoid this issue. Roller’s reply brief pointed this out, in addition to arguing the federal court was obligated to follow the DC Court of Appeals’ Mann decision, because it had “spoken clearly and unmistakably to the current state of D.C. law.”
Last week, the DC federal court granted Roller’s 12(b)(6) motion to dismiss Fairbanks’ Complaint. The court sidestepped the question of whether the tweet was opinion or factual because, in the court’s view “actual malice presents a clearer question and requires dismissal of the case.” The court noted that Fairbanks conceded she was a “public figure,” which required her to plead facts showing that Roller published the tweet with actual malice. It held Fairbanks had not satisfied this demanding standard because: (1) she had not pleaded facts sufficient to support her conclusory allegation that Roller knew the falsity of her statement; (2) her assertions that Roller failed to perform due diligence consistent with professional standards of journalism or had a motive to smear Fairbanks’ reputation as a competing grassroots journalist were insufficient to show actual malice; and (3) Roller’s alleged failure to correct her statement did not show she had actual malice when she published it. According to the court:
Especially given the public debate about the “okay” hand gesture at the time of Ms. Roller’s tweet, Ms. Fairbanks’ allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller—whether because the gesture was actually offensive or because they would think that it was offensive—not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.
Turning to the anti-SLAPP special motion to dismiss, Judge McFadden joined Judges Huvelle and Mehta in holding that, even after Mann, the DC anti-SLAPP statute cannot apply in a federal court diversity case. The court reasoned that, while the Mann court held the anti-SLAPP standard mirrored that found in the Federal Rules of Civil Procedure, the statute still conflicted with the Federal Rules because it inverted the burdens:
But like a mirror, the anti-SLAPP statute reverses the image that it reflects: Mann agrees with Abbas that the statute differs from Rule 56 by requiring the plaintiff to show a likelihood of success on the merits instead of placing the burden on the defendant. Id. And Mann adds that the statute’s dismissal standard differs from Rule 12 by requiring the plaintiff to produce evidence rather than allowing the plaintiff to rely on the allegations in her complaint. Id. at 1233; see also Libre by Nexus, 2018 WL 2248420 at *9. In short, Mann does not align the District’s anti-SLAPP statute with the Federal Rules.
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[Mann] does not show that the anti-SLAPP statute should apply in federal court. So I am bound by the law of the Circuit and must dismiss Ms. Roller’s anti-SLAPP motion.
For those who looked at Mann as providing a glimmer of hope that the DC anti-SLAPP statute would again be available in federal court, the Fairbanks decision, coming after the Deripaska and Libre by Nexus decisions, is disheartening. While the DC Circuit was always going to be the final arbiter on this question, its hard to imagine a DC federal district judge applying the statute until the Circuit revisits and decides the issue. As always, stay tuned.