In September, I wrote about the anti-SLAPP special motion to dismiss filed by The Saudi American Public Relation Affairs Committee and Salman Al-Ansari (its founder/president) in response to a suit by The Institute for Gulf Affairs and Ali Al-Ahmed (its founder).
The suit asserted claims for defamation per se, false light invasion of privacy, and intentional infliction of emotional distress based on statements allegedly made by Al-Ansari, 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,’” and “AlAhmed and his cronies at 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.”
In their opening brief in support of their anti-SLAPP special motion to dismiss, SAPRAC and Al-Ansari argued the suit arose 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 asserted that Al-Ahmed was, at least, a limited purpose public figure, which satisfied the “issues of public interest” definition.
The plaintiffs’ opposition brief argued that, although the challenged statements were published in a place open to the public, they were made to advance the defendants’ private interests (revenge for an earlier article and to retaliate against the plaintiffs because of their differing views), and thus were outside the “issue of public interest” definition.
The opposition brief also argued that Al-Ahmed was not a limited purpose public figure, so that the defendants could not satisfy the “issue of public interest” definition that way. It additionally argued that, even if Al-Ahmed was a limited purpose public figure, the defendants needed to independently show the statements were about an issue of public interest. (On this latter point, the DC Court of Appeals and Superior Court have both held that, if the challenged statements are about a public figure, that is sufficient to satisfy the “issue of public interest” definition, without more).
Finally, the plaintiffs argued that because Al-Ansari denies making the challenged statements, he should not be allowed to even invoke the DC anti-SLAPP statute (citing the California decision I previously blogged about). The opposition brief did not acknowledge that several other courts have rejected this same argument.
The defendants’ reply brief ridiculed the plaintiffs’ reliance upon California decisions and their assertion the suit did not arise from an act in furtherance of the right of advocacy on issues of public interest. The defendants also argued the fact Al-Ansari denied making the challenged statements at issue did not mean defendants could not invoke the DC anti-SLAPP statute:
Plaintiffs ignore that the basic requirement under the D.C. Anti-SLAPP Act is merely for Plaintiffs to “make a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code §16-5502(b) (emphasis added). Plaintiffs’ allegations in their Complaint, taken in their proper context, are the claims at issue. It would be against public policy and contradictory for a political opponent to be able to completely fabricate supposedly defamatory statements and avoid the protections provided defendants by the Anti-SLAPP Act.
The remainder of the reply brief argued the plaintiffs had not shown they were likely to prevail on the merits.
The day before Thanksgiving, the Superior Court ruled on the anti-SLAPP special motion to dismiss (and a companion Rule 12(b)(6) motion). The court noted the two organizations focused on the Gulf region in general – and Saudi Arabia in particular – and that relations “between the Gulf Region (including Saudi Arabia) and the United States are surely related to both economic and community well-being,” which would fall within the “issue of public interest” definition under the D.C. anti-SLAPP statute. The court nevertheless held the allegedly defamatory statements were not about an “issue of public interest” because they were not related to relations between the Gulf Region or Saudi Arabia and the United States and were instead “related primarily to Al-Ahmed himself.”
The Superior Court also rejected the defendants’ argument that Al-Ahmed was a limited purpose public figure, which would have satisfied the “issue of public interest” definition: “[t]he outcome of the suggested conflict between the parties does not affect the general public nor does it affect any segment of the public in any appreciable way.” For these reasons, the court held defendants had not satisfied their prima facie burden under the statute. (On the merits of the Rule 12(b)(6) motion, the court held the complaint plausibly alleged claims for defamation and false light, but not for intentional infliction of emotional distress).
My two cents: this suit gave another court an opportunity to clarify that a party can file an anti-SLAPP special motion to dismiss even if that party denies making the statements at issue. As the Texas Supreme Court reasoned “[t]he basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations,” so 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 sidestepped this issue by deciding the defendants had not satisfied their prima facie burden.
The D.C. anti-SLAPP statute allows a party who successfully opposes an anti-SLAPP special motion to dismiss to recover its fees if it demonstrates the motion was “frivolous or [was] solely intended to cause unnecessary delay.” On the other hand, Competitive Enterprise Institute v. Mann holds the denial of an anti-SLAPP special motion to dismiss can be immediately appealed. It will thus be interesting to see what either side does next. As always, stay tuned.