Superior Court Opinion Shows Why We Need a Federal anti-SLAPP Statute

In December 2017, three “international businessmen” sued Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Donald Trump, in DC federal court. The suit alleged that certain statements contained in one of the reports prepared by Steele were false and defamatory. Although Fusion and GPS filed an anti-SLAPP special motion to dismiss, it is unlikely the federal district court will even entertain that motion; rather, I anticipate Judge Leon will join his three colleagues (here, here and here) who have held the statute cannot be applied in federal court.

Meanwhile, in April 2018, the same three plaintiffs sued Christopher Steele and Orbis Business Intelligence in DC Superior Court. In Superior Court, unlike federal court, the DC anti-SLAPP statute is available. So Steele and Orbis filed an anti-SLAPP special motion to dismiss, which the Superior Court has now granted, ending the case with prejudice.

The Superior Court’s opinion first addressed the plaintiffs’ argument the DC anti-SLAPP statute did not apply unless the defendants had a right of speech guaranteed by the First Amendment. The court was dubious of this assertion: “[t]he Act does not explicitly limit its protection to activity that is also protected by the First Amendment, and indeed the Act’s legislative history indicates that the Council intended the Act to apply more broadly.” The court nevertheless stated it was assuming, without deciding, “the Anti-SLAPP Act applies only to conduct that is protected by the First Amendment.”

The court next turned to the plaintiffs’ related argument – that defendants were not entitled to any protections under the First Amendment because they were not citizens. After noting that it was “ironic” “that Plaintiffs, who are non-resident aliens with Russian and/or Israeli citizenship (Complaint ¶ 15), argue that non-resident aliens do not have rights that the First Amendment requires a U.S. court to respect — while petitioning a U.S. court for a redress of their grievances and invoking a constitutional right to conduct discovery,” the court rejected this argument, holding that “advocacy on issues of public interest has the capacity to inform public debate, and thereby furthers the purposes of the First Amendment, regardless of the citizenship or residency of the speaker.”

The court noted that, “by its terms, the Anti-SLAPP Act does not limit its protections to U.S. citizens or entities” and reasoned that “[r]eading an implied limitation to District residents into the Act would be contrary to the purposes of the Act and the First Amendment to provide broad protection for speech on issues of public interest.” The court held that, to the extent a non-resident alien’s connections with the United States needed to be “substantial” to merit the protections of the First Amendment, defendants and their speech “have ample connections with the United States that are clearly substantial enough to merit First Amendment protection.”

The court then turned to the plaintiffs’ argument that defendants had not made a prima facie showing. It rejected this argument. It noted that “Plaintiffs challenge Mr. Steele’s provision of his dossier to the media precisely because he expected and intended the media to communicate the information to the public in the United States and around the world,” and held that, as such, defendants had carried their prima facie burden to show the suit arose from an act in furtherance of the right of advocacy. The court also held the DC anti-SLAPP statute “applies to statements that consist of ‘raw intelligence.’” Finally, the court held the dossier, as a whole, concerned an “issue of public interest” “because it relates to possible Russian interference with the 2016 presidential election” and that CIR 112 (the report that mentioned the plaintiffs) specifically discussed Russia’s policy towards the United States and Putin’s advisors on Russia/US policy, which were issues of public interest.

The court easily concluded that plaintiffs were, at a minimum, limited purpose public figures “for the broad controversy relating to Russian oligarchs’ involvement with the Russian government and its activities and relations around the world, including the United States.” It held that, as such, they needed to offer evidence a reasonable jury could find, by clear and convincing proof, that defendants knew the facts stated in, or reasonably implied by, CIR 112 were false or that they published CIR 112 with reckless disregard of the falsity of these stated or implied facts. The court held that plaintiffs had not carried their burden to show actual malice, and that they were not entitled to “targeted discovery.” As such, it dismissed the case with prejudice.

My two cents: in a recent series of posts for the Public Participation Project, I explained the two suits brought by Messers. Kahn, Fridman, and Aven showed why Congress needs to enact a federal anti-SLAPP statute. This opinion confirms why. The Superior Court has granted an anti-SLAPP special motion to dismiss a defamation suit on the basis the plaintiffs cannot show the challenged statements were made with actual malice. The federal court is likely to hold it cannot even consider an anti-SLAPP special motion to dismiss a virtually identical complaint, by the same plaintiffs, asserting the same claim, and about the same publication. The availability of a substantive defense should not depend on the court in which the case is filed.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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