Federal court denies motion to dismiss anti-SLAPP appeal

An appeal in a defamation case against the late journalist Andrew Breitbart will proceed after a federal appeals court denied a motion to have it dismissed.

Shirley Sherrod, a former official in the Obama administration, sued Breitbart last year, alleging that two writers from his website, BigGovernment.com, defamed her in a YouTube video, which she said unfairly edited a speech she made. Breitbart, a known conservative commentator, died in March.

Breitbart, BigGovernment.com and other defendants had tried to get the defamation claim dismissed below under the District of Columbia's Anti-SLAPP Act, which protects speech against lawsuits intending to censor, intimidate or silence critics. When he lost the anti-SLAPP argument, he appealed that denial to the U.S. Court of Appeals in Washington, D.C.

After Breitbart appealed the anti-SLAPP denial, Sherrod asked the appellate court to dismiss it, arguing that the D.C. statute does not apply in federal court.

But the court ruled that "the merits of the parties’ positions are not so clear as to warrant [dismissal]."

On Wednesday, the same court also denied a request to consolidate this appeal with that of another libel case, although it did allow the two to proceed independently in front of the same panel of judges — meaning the court will issue two separate opinions on a closely watched issue. The facts of the cases are not directly related, but both address whether the protections under the district's Anti-SLAPP Act, which went into effect in March 2011, apply under federal laws.

In 3M v. Boulter, the defendants in a lawsuit brought by the multinational corporation that makes Post-its and thousands of other products, submitted a motion to the D.C. federal appellate court, requesting to join its appeal with that of Breitbart.

Both the defendants in Boulter and Sherrod v. Breitbart unsuccessfully attempted to dismiss defamation claims made against them as instances of SLAPPs, or “strategic lawsuits against public participation." Many jurisdictions, along with D.C., have adopted anti-SLAPP statutes that help journalists and others get such cases dismissed early, according to The Reporters Committee for Freedom of the Press' guide, SLAPP Stick.

In February, U.S. District Judge Robert L. Wilkins denied a motion to dismiss 3M’s lawsuit. In the first ever opinion issued on the applicability of the district's anti-SLAPP statute in federal court, Wilkins relied on the U.S. Supreme Court's 2010 decision in Shady Grove v. Allstate, which held that certain state laws concerning class-action suits are inapplicable in federal court because they conflict with procedural law. Wilkins similarly ruled that the D.C. anti-SLAPP statute cannot apply in federal court because it "wholly strips a federal court of the discretion it otherwise has to determine whether a claim will be dismissed with or without prejudice.”

Last July, a federal judge also denied Breitbart’s similar request for dismissal but did not write an accompanying opinion.

Last month, in the first case to successfully invoke the D.C. anti-SLAPP statute in federal court, a U.S. District Court threw out Farah v. Esquire, a libel lawsuit brought by a ‘birther’ – someone who questions whether President Obama is a natural-born U.S. citizen – against Esquire magazine, which ran a satirical blog post on its website about a book the birther's company published.

Eric A. Kuwana, an attorney for Breitbart, declined to comment. Sherrod's attorney could not be reached for comment.

Related Reporters Committee resources:

· SLAPP Stick: Fighting frivolous lawsuits against journalists

· SLAPP Stick: Fighting frivolous lawsuits against journalists: District of Columbia