Can An Anti-SLAPP Movant Deny Making the Challenged Statement?

According to a complaint filed in DC Superior Court, earlier this year the Institute for Gulf Affairs published an article titled “Is SAPRAC A Wolf In Sheep’s Clothing?” The article asserted The Saudi American Public Relation Affairs Committee “has a ‘questionable stance on tolerance, especially against Jews and are associated with virulent anti-Semitism.’”

The complaint alleges that SAPRAC’s founder and president, Salman Al-Ansari, was so offended by this article that, in a June interview with a blogger, he made false and defamatory statements about IGA and its founder and director Ali Al-Ahmed, including that:

  • “AlAhmed is a terrorist himself”
  • “AlAhmed ‘cares nothing for the sincere shared collective of ideas and cultures, but AlAhmed will use any means to exterminate the prospects of a peaceful world”
  • “AlAhmed and his cronies at [IGA] are dangerous – they have much more going on here than simple written words – they are subversive and will use any destructive means possible to promote their own misguided agenda of their own brand of terrorism”
  • “this is a perfect example of a Wolf in Sheep’s clothing – AlAhmed might dress in public like a docile Sheep, but, in truth, he is a Wolf – he will destroy anything in his path, even if he has to kill it to get there.”

In their complaint, Al-Ahmed and IGA assert claims for defamation per se, false light invasion of privacy, and intentional infliction of emotional distress.

Last week, SAPRAC and Al-Ansari responded to the suit by filing an anti-SLAPP special motion to dismiss. In it, they argue the suit arises from “an act in furtherance of the right of advocacy on issues of public interest” because the challenged statements were made in an article posted on the Internet (thus satisfying the place open to the public/public forum requirement) about an issue of public interest (“safety” and “community well-being”). They also argue that, because Al-Ahmed is at least a limited purpose public figure, the challenged statements were about a “public figure,” which satisfies the “issues of public interest” definition.

SAPRAC and Al-Ansari argue the plaintiffs cannot show they are likely to succeed on the merits of their defamation or false light claims because the challenged statements were opinions, rhetorical hyperbole, or not defamatory, and because plaintiffs cannot demonstrate the challenged statements were made with actual malice or show special harm. SAPRAC and Al-Ansari additionally argue that, because the defamation claim fails as a matter of law, so must the intentional infliction of emotional distress claim. And, they argue, plaintiffs cannot show their conduct was extreme and outrageous or that it caused severe emotional distress.

My Two Cents: the most interesting part of the SAPRAC and Al-Ansari anti-SLAPP special motion to dismiss brief is buried in the middle, when they assert Al-Ansari never made the challenged statements: “Al-Ansari has never communicated in any way with someone by the name of Spencer Tripens and did not make any of the statements Al-Ansari is alleged to have made that form the basis for the claims in this SLAPP.” In fact, SAPRAC and Al-Ansari argue that plaintiffs cannot satisfy the “publication” element of a defamation claim because they cannot show Al-Ansari made the challenged statements:

In order to present a legally sufficient amount of evidence to demonstrate Defendants published the alleged statements, Plaintiffs must provide evidence on the necessary prerequisite that Al-Ansari, acting in his capacity as director of SAPRAC, published the alleged statements to Tripens. Since Al-Ansari has never communicated in any way with someone by the name of Spencer Tripens and because Al-Ansari did not make any of the statements that he is alleged to have made that form the basis for the claims in this SLAPP, Plaintiffs will not be able to demonstrate a legally sufficient amount of evidence that Defendants published the alleged statements.

As readers know, the plaintiffs opposing the anti-SLAPP special motion to dismiss filed by Fusion GPS and Glenn Simpson argued that Fusion and Simpson needed to make “an affirmative claim that their statements were made in a public forum or involved communicating to the public” to carry their prima facie burden under the D.C. anti-SLAPP statute, and could not simply rely upon the allegations in the complaint. I found a California decision that seemingly accepted this argument and held that, because the defendant there affirmatively denied making the challenged statements, she had not carried her prima facie burden.

In my prior blog post, I noted a Kansas trial court had reached a similar conclusion, holding that, because the plaintiff there submitted an affidavit in which she denied making the challenged statements, she had not carried her burden to establish a prima facie case. I noted that decision was reversed on appeal, with the appellate court holding the relevant question was whether the “claims in the plaintiff’s petition implicate a protected right under the statute” so that it was “irrelevant whether the defendant admits or denies making the statements in question.” (emphasis added).

Last year, the Texas Supreme Court reached a similar conclusion under that state’s anti-SLAPP statute. Several intermediate appellate courts had previously reasoned that, because the purpose of the statute was to protect free speech, protecting a party who denied having exercised free speech was inconsistent with the act’s purpose. The Texas Supreme Court overruled these decisions and held that, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” The court reasoned that “[t]he basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” As such, the court held, “the trial court was obliged to consider the [plaintiffs’] pleadings irrespective of whether [the defendant] formally offered them as evidence.” Because the complaint in the Texas suit alleged the defendant engaged in speech covered by the statute, the court held the anti-SLAPP statute applied, even though the defendant had denied making the statements at issue.

It remains to be seen if the plaintiffs will make this argument in opposition to the anti-SLAPP special motion to dismiss filed by SAPRAC and Al-Ansari and, if they do, how the Superior Court will rule. As always, stay tuned.

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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