The D.C. anti-SLAPP statute has most often been used in cases involving claims of defamation. See Boley v. Atlantic Monthly Group; Moore v. Costa. It has also been successfully invoked in cases involving defamation-related claims. See, e.g., Farah v. Esquire Magazine, Inc. (false light invasion of privacy, Lanham Act, misappropriation invasion of privacy); Forras v. Rauf (false light, assault, intentional infliction of emotional distress). We can now add intentional interference with existing contracts and tortious interference with business expectancies to the list of claims against which a successful anti-SLAPP special motion to dismiss has been made.
In February, several entities owned by Tavis Smiley sued the Public Broadcasting System, alleging that, when PBS indefinitely suspended distribution of the Tavis Smiley show to PBS member stations (after Smiley co-workers accused him of sexual harassment), it breached certain agreements between the parties, as well as interfered with contracts and business expectancies between the Smiley entities and third parties. The complaint claimed PBS’s public statements – that it had received multiple credible allegations of misconduct by Smiley and that it had conducted an investigation into those allegations – were false and defamatory, and led to the alleged cancellation of existing contracts and interference with future business relationships.
PBS filed an anti-SLAPP special motion to dismiss the tort claims, arguing they attempted to impose liability on PBS for informing the public about an issue of public interest. PBS argued the suit arose from an “act in furtherance of the right of advocacy on issues of public interest” because: (1) Smiley was a public figure; (2) the claims arose during “the #MeToo movement, an issue at the forefront of public discourse”; (3) the statements were “made in a place open to the public or a public forum.”
PBS then argued Smiley could not show a likelihood of success on the merits because the statements were true, protected opinions, and not made with actual malice. PBS also argued the complaint failed to plead facts showing the statements caused any actual interference, that PBS made the statements with intent to interfere with the alleged contracts or potential business expectancies, or that the statements were not covered by the common interest privilege.
Plaintiffs’ opposition brief first argued the PBS statements were “related solely to PBS’s commercial interests” and thus, by statute, could not be about an “issue of public interest.” (Recall that the statute provides “[t]he term ‘issue of public interest’ shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests, rather than toward commenting on or sharing information about a matter of public significance”). Plaintiffs next argued that, even if the D.C. anti-SLAPP statute applied to the suit, they were likely to prevail on the merits because they had identified lost contracts and business opportunities and because the statements were not about an issue of “public concern,” so they were not subject to First Amendment protections. Finally, plaintiffs argued they should be allowed “targeted discovery” before the court ruled on the anti-SLAPP special motion to dismiss.
PBS’s reply brief argued the complaint itself alleged Smiley was a public figure and the statements were made about an issue of public interest, so that the suit clearly arose from an act in furtherance of the right of advocacy on issues of public interest. In response to plaintiffs’ argument the speech was about a private concern, PBS argued that, as a not-for-profit organization “without commercial or profit pressures,” it “has no commercial interest to protect.” According to PBS, the statements “did not propose any commercial transaction, solicit viewers or funding, or attempt to undercut any competition,” so they were not directed primarily towards any commercial interest. Finally, argued PBS, it was plaintiffs’ burden to show the commercial exception applied, and they had wholly failed to carry this burden. The remainder of PBS’s reply brief argued plaintiffs had failed to show they were likely to prevail on the merits or were entitled to targeted discovery.
Four days after PBS filed its reply brief, the Superior Court issued an Opinion dismissing the tort claims with prejudice. The court held that “PBS has made a prima facie, and indeed compelling, showing that Plaintiff’s tort claims arise from its constitutionally protected statements to the public about matters of public interest involving a public figure”; that plaintiffs “have not provided evidence that they are likely to succeed on the merits of claims that arise from speech protected by the First Amendment”; and that plaintiffs “have not demonstrated that targeted discovery will enable them to defeat PBS’s motion.”
The court explained that PBS made a prima facie showing that plaintiffs’ tort claims arose from an act in furtherance of the right of advocacy on issues of public interest because the statements were made to the public, about a public figure and/or issue of public interest. The court held that, because “[t]he statements by PBS that form the basis of Plaintiffs’ tort claims do not on their face discuss or further any commercial interest of PBS, which is a non-profit entity,” the commercial interest exception was inapplicable (citing the Superior Court’s Simpson decision I blogged about here).
Turning to the merits, the court held that, “[b]ecause PBS’s speech concerned a matter of public concern and a public figure, Plaintiffs must show that PBS acted with actual malice.” It held plaintiffs had not done so:
Mr. Smiley admitted to PBS that he had sexual relationships with workplace colleagues during the course of his 30-year career, Compl. ¶ 40, and Plaintiffs do not provide any evidence that PBS knew that these relationships were purely consensual, or that PBS had serious doubts about the credibility of any of his accusers. PBS’s alleged hostility towards Mr. Smiley (Compl. ¶¶ 4-5, 24-25) is legally irrelevant to whether it knew its statements were false or made them with reckless disregard for the truth. Plaintiffs also do not provide evidence establishing a likelihood of success in proving that PBS stated falsely or recklessly that it had engaged an outside law firm to conduct an investigation of the allegations against Mr. Smiley; indeed, Plaintiffs admit that members of a law firm representing PBS interviewed Mr. Smiley (Compl. ¶¶ 6-7).
Finally, the court held plaintiffs had not shown targeted discovery would enable them to defeat the motion. As such, the court granted PBS’s anti-SLAPP special motion to dismiss and dismissed the tort claims with prejudice.