On October 20, 2014, the District of Columbia Circuit held oral argument on the biggest issue under the Court of Appeals’ three-year-old D.C. anti-SLAPP statute: does the special motion to dismiss under the anti-SLAPP statute apply in federal diversity actions? Abbas v. Foreign Policy Group, LLC, 975 F. Supp. 2d 1 (D.D.C. Sept. 27, 2013), oral argument held, No. 13-7171 (D.C. Cir. Oct. 20, 2014). The panel appeared receptive to holding that – at least in circumstances calling for a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) – the anti-SLAPP statute applies in federal court.

Without a ruling from the D.C. Circuit, federal district courts in D.C. have largely applied the anti-SLAPP statute in federal court. See Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 254 (D.D.C. 2013) (Walton, J.) (finding First and Ninth Circuit Court of Appeals decisions persuasive and adopting their reasoning); Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012) (Collyer, J.), (applying the anti-SLAPP statute, reasoning that “it was certainly the intent of the D.C. Council and the effect of the law—dismissal on the merits—to have substantive consequences”), aff’d on Rule 12(b)(6) grounds, 736 F.3d 528 (D.C. Cir. 2013); Abbas, LLC, 975 F. Supp. 2d at 9-10 (Sullivan, J.) (following Boley and Farah to apply the anti-SLAPP statute). Cf. Sherrod v. Breitbart, 843 F. Supp. 2d 83, 85 (D.D.C.2012) (Leon, J.), (recognizing that the anti–SLAPP statute “is substantive—or at the very least, has substantive consequences”), aff’d on other grounds, 720 F.3d 932 (D.C.Cir. 2013). But see 3M Co. v. Boulter, 842 F.Supp.2d 85, 102 (D.D.C. 2012) (Wilkins, J.) (holding that the anti–SLAPP statute “squarely attempts to answer the same question that [Fed. R. Civ. P.] 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in diversity.”). In April 2014, the district court in Forras v. Rauf followed this “weight of authority” and became the fourth D.C. district court to apply the anti-SLAPP statute in federal court. --- F. Supp. 2d ----, 2014 WL 1512814, at *3-4 (D.D.C. Apr. 18, 2014) (Rothstein, J.), appeal docketed, No. 14-7070 (D.C. Cir. May 21, 2014). In Forras, activists brought libel and other tort claims against defendants – who planned to build an Islamic community center near Ground Zero in New York City – arising from statements in a related action that, among other things, the activists were “bigots.” Id. at *1-3. The court granted the special motion to dismiss because the activists were not likely to succeed on the merits under the absolute litigation privilege. Id. at *6.

The second major issue under the anti-SLAPP statute is whether interlocutory appeal is available. On May 29, 2014, the D.C. Court of Appeals tackled this issue in its first published decision addressing the anti-SLAPP statute. Doe v. Burke, 91 A.3d 1031 (D.C. 2014). There, a human rights attorney filed a libel action against anonymous editors of an allegedly misleading Wikipedia entry about the attorney and served a subpoena on Wikipedia seeking to unmask the editors’ identities. One of the editors filed a special motion to quash the subpoena under the anti-SLAPP statute. D.C. Code § 16-5503. The trial court denied the motion and the editor appealed. In an issue of first impression, the court held that, even though the statute does not explicitly provide for an interlocutory appeal, the denial of a special motion to quash under the anti-SLAPP statute is immediately appealable under the collateral-order doctrine. Id. 1036-40.

In Mann v. National Review, the D.C. Court of Appeals has its first opportunity: (1) to determine if an interlocutory appeal is available from denial of special motion to dismiss and (2) to address the standard for considering the merits of a special motion to dismiss. Mann v. Nat’l Review, Inc., No. 2012 CA 008263 B, 2013 WL 4494942 (D.C. Super. Ct. July 19, 2013), oral argument held, Nos. 14-CV-101 & 14-CV12-126 (D.C. Nov. 25, 2014). In Mann, a climate scientist filed suit against the National Review and Competitive Enterprise Institute for allegedly defamatory statements made in blog posts about a controversy involving the climate scientist’s data and research methods. The trial court denied defendants’ special motion to dismiss. The court rejected defendants’ argument that calling a public-figure plaintiff ‘s academic work on climate science “fraudulent” and “intellectually bogus” was non-actionable opinion and protected by the fair comment privilege, because the statements were based on verifiable facts that were contrary to numerous investigations that found plaintiff ‘s works accurate. Id. *6-9. The court also found that plaintiff had presented sufficient evidence to warrant discovery on whether defendant acted with actual malice, because defendant continued to call plaintiff ‘s work an academic fraud even after investigations proved that charge false. Id. at *10.

The Mann case presents an opportunity for the D.C. Court of Appeals to build on Burke and federal district court decisions that have applied special motions to dismiss to protect speech broadly. And although the court in Doe v. Burke did not address whether denial of a special motion to dismiss is subject to interlocutory appeal, the Court of Appeals’ reasoning in Burke should apply with equal force to a special motion to dismiss.   

Micah J. Ratner is an Associate in the Washington, D.C. office of the firm.