D.C. Circuit decision highlights need for federal anti-SLAPP law

The decision of the U.S. Court of Appeals for the District of Columbia to throw out the defamation suit in Abbas v. Foreign Policy on Friday was a bittersweet victory for First Amendment advocates, as the court also decided that the D.C. anti-SLAPP law did not apply in federal court. This negative result shows clearly why Congress should pass federal anti-SLAPP legislation that would protect speakers who cannot benefit from their state’s anti-SLAPP law, as well as those in states that have no such law.

The court’s ruling that the questions posed in Foreign Policy’s article on Yasser Abbas were merely questions and not actionable defamation was indeed welcome. In asking questions such as whether Abbas, a son of Palestinian Authority President Mahmoud Abbas, and his brother were “growing rich off their father’s system,” Foreign Policy writer Jonathan Schanzer was not making factual representations, the court held. Reporters ask questions to obtain information, the court wrote, and “a severe infringement on free speech” would result if those questions could not be asked.

But the troubling aspect of the court’s opinion was the holding that the D.C. anti-SLAPP law was inapplicable because the case was in federal court, and thus the D.C. law was preempted by federal procedural rules that supposedly addressed the same issue. The D.C. Anti-SLAPP Act, passed in 2010, makes it easier for defendants to dismiss meritless lawsuits consisting of “any claim arising from an act in furtherance of the right of advocacy on issues of public interest.”

“Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court,” the court wrote. “A federal court must apply those Federal Rules instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.”

Since the federal rules do not require a plaintiff to show a likelihood of success on the merits, while the D.C. anti-SLAPP law does, the court held that the federal rules governed. And because the D.C. law was inapplicable, the media defendants were not entitled to attorney’s fees following the dismissal of the action.

The D.C. government had supported the applicability of the law in federal court with an amicus brief to the Court of Appeals. The Reporters Committee also joined an amicus effort supporting the defendants.

Several federal appellate courts, including the First, Fifth, and Ninth Circuits, have previously held that state anti-SLAPP laws apply in federal court. But the possibility that other courts would decide the issue differently is partly responsible for a push for federal anti-SLAPP legislation. In addition, efforts have been spurred by the fact that many states do not have such statutes and others only have narrow protections, such as only applying to speech on matters before public bodies. Twenty-eight states, the District of Columbia, and the U.S. territory of Guam have enacted some form of anti-SLAPP law.

Supporters of a federal anti-SLAPP law tout the uniform, nationwide protection that would come with such a law. Federal anti-SLAPP legislation has been proposed in Congress in recent years but has not gained the momentum to become law. The House of Representatives first considered such a bill, the Citizen Participation Act of 2009, several years ago. The bill would have protected petition activity and speech or conduct in connection with a matter of public concern. Hallmarks of the bill include its provision of attorney’s fees for defendants, the early motion to dismiss that the defendant could bring, and a limitation on discovery. The act stalled in the House Judiciary Committee without moving to the floor for a vote, and similar bills have not progressed farther.

A federal law could be drafted to apply in federal courts, or even more broadly to apply in all courts. A broad law would promote uniformity by allowing defendants to invoke anti-SLAPP protection in more situations. Eliminating the uncertainty would discourage plaintiffs from shopping for forums that have weaker or no anti-SLAPP laws.

The Abbas case, in which the D.C. anti-SLAPP law was strong but the defendant was ultimately denied its protections, should be the latest impetus for strong federal legislation that fills the gaps and provides uniform protections. The uncertainty that defendants face under the current regime threatens to create the very chilling effect on speech that anti-SLAPP laws aim to remedy.

Related Reporters Committee resources:

· NM&L: Anti-SLAPP laws on trial