For nearly two years, magazines, newspapers and other media groups facing defamation lawsuits in Washington have had a new weapon in their litigation arsenal: the city’s law barring strategic lawsuits against public participation, or SLAPPs.
As the anti-SLAPP law’s second anniversary approaches at the end of March, though, its fate is unclear. A case before the U.S. Court of Appeals for the D.C. Circuit next month could answer critical unresolved questions — notably, whether the law applies in federal court.
Despite the uncertainty, media lawyers say the D.C. law has so far accomplished its goal: to protect speech. They point to a handful of cases in which a judge granted a motion to dismiss under the law or the plaintiffs settled or dropped a case in the face of a pending SLAPP motion.
SLAPP motions were filed in at least a dozen cases to date, split between D.C. Superior Court and the U.S. District Court for the District of Columbia. In the case coming before the D.C. Circuit on March 15, former U.S. Department of Agriculture official Shirley Sherrod sued the late conservative blogger Andrew Breitbart and his colleague Larry O’Connor for defamation, claiming they posted deceptively edited content online that made it seem as if Sherrod, who is black, discriminated against white farmers.
LeClairRyan partner Leslie Machado, who runs a blog tracking the D.C. anti-SLAPP law in court, said most cases have involved media groups, setting D.C. apart from states with similar laws. In other states, he said, SLAPP motions are more common in cases involving a big fish/little fish dynamic, such as a developer suing a community group for protesting. "People might be avoiding D.C. for fear of the SLAPP statute and attorney fee-shifting provision," he said.
Attorneys are closely watching the Sherrod case to see if the D.C. Circuit tackles two key issues: whether the law applies in federal court and whether defendants can immediately appeal if a judge denies a SLAPP motion. U.S. District Judge Richard Leon denied the defendants’ motion to dismiss the case under the anti-SLAPP law in July 2011.
A lead attorney for O’Connor, Mark Bailen of Baker & Hostetler, said the law is a necessary protection against efforts to chill protected speech. "We hope the D.C. Circuit carefully reviews the issue and implements the intent of the D.C. Council in enacting the anti-SLAPP act," he said. Baker & Hostetler of counsel Bruce Brown will argue for the defendants. (Brown, who is also executive director of the Reporters Committee for Freedom of the Press, was a reporter for Legal Times, now merged with The National Law Journal. He also represented the NLJ in a prior restraint action brought by beverage manufacturer POM Wonderful.)
Attorneys for Sherrod at Kirkland & Ellis declined to comment. Partner Thomas Yannucci will argue before the D.C. Circuit. In their D.C. Circuit brief, they said the case boiled down to Sherrod’s right to pursue a valid defamation claim and that there were too many legal hurdles for the defendants to overcome to succeed. "The threshold questions Mr. O’Connor now treats as an afterthought provide no fewer than four independent grounds to dismiss this appeal or affirm the District Court’s order," the brief said.
There are 28 states, plus D.C. and Guam, with anti-SLAPP laws, according to the Public Participation Project, a nonprofit that tracks and advocates for anti-SLAPP legislation. The laws vary in strength, and proponents have long pushed for a federal anti-SLAPP law, with no success.
Washington’s anti-SLAPP law is considered one of the strongest in the nation. Defendants have 45 days to file a special motion to dismiss if they believe they’re being sued over protected speech. Discovery is stayed while a judge weighs the motion, and plaintiffs can be on the hook for attorney fees if they lose.
The D.C. cases with a SLAPP motion at play have attracted repeat players from firms with First Amendment practices. Baker & Hostetler and Davis Wright Tremaine have each been involved in several cases, either as defense counsel or on an amicus brief. Holland & Knight and D.C.-based Levine Sullivan Koch & Schulz have also jumped into the fray.
SLAPP motions filed to date have had mixed results. Judges granted SLAPP motions in defamation lawsuits against Fox Television Stations Inc. in Superior Court and against Esquire magazine in federal court; the Esquire decision is on appeal to the D.C. Circuit. Two lawsuits were voluntarily dismissed while a SLAPP motion was pending, including Washington Redskins owner Dan Snyder’s libel lawsuit against Washington City Paper.
SLAPP motions were filed in a handful of cases not involving media groups. In Superior Court, a man sued his child’s school and a school psychologist over the psychologist’s alleged affair with his wife; the psychologist filed a counterclaim for defamation, which the plaintiff fought with a SLAPP motion. The trial judge denied the SLAPP motion, and the D.C. Court of Appeals dismissed an appeal of that decision, finding, among other things, that the anti-SLAPP law didn’t provide for immediate review.
Whether the denial of a SLAPP motion can be appealed right away is one of four main issues in the Sherrod case. The D.C. Court of Appeals’ ruling isn’t binding on the D.C. Circuit, but Kevin Goldberg, a First Amendment attorney at Arlington, Va.’s Fletcher, Heald & Hildreth, said it could prove important. The D.C. Circuit is "going to look for other influences to the extent that a federal court is going to look at how a state law is applied," he said, adding that if the court found no immediate review, it would "gut" the law.
The D.C. Circuit could decide the Sherrod case on two procedural issues: first, whether the law applied retroactively — Sherrod filed her complaint several weeks before the law took effect — and second, whether the defendants’ SLAPP motion was filed in time.
The final issue, whether the law applies in federal court, is the main attraction. In briefs, Sherrod’s lawyers said the defendants are in a "Catch-22." To win on retroactivity, they argued, the defendants have to claim the law is procedural, which would mean it conflicts with federal rules and can’t apply in federal court. On the flip side, they said, if the defendants argue the law is substantive, it can’t be retroactive.But O’Connor’s lawyers contend that they can win on all four fronts. They argued in briefs that the law doesn’t conflict with federal rules — the city attorney general’s office filed a brief supporting the law’s applicability in federal court — and that the D.C. Council intended for the law to apply to existing defendants. They pointed to First, Fifth and Ninth Circuit decisions finding that denials of SLAPP motions can be appealed right away.
Davis Wright Tremaine’s Laura Hand­man, who has represented defendants in several cases with a SLAPP motion, said there’s no way to know if the D.C. Circuit will reach the question of whether the law applies in federal court. In light of decisions from other district and circuit courts, she said she hoped the court "will be similarly persuaded."
Goldberg, who sits on the Public Participation Project’s board of directors, said that if the defendants lose — an outcome he isn’t hoping for — it could add fuel to the push for federal legislation. "That’s a short-term loss," he said. "But, by gosh, does it really move the federal anti-SLAPP law right back to the front."
Zoe Tillman can be contacted at firstname.lastname@example.org.