Legal Corner: Defending Free Speech Through Anti-SLAPP Laws

AAN members are probably familiar with the term “SLAPP” lawsuit, if for no other reason than the infamous lawsuit filed by Washington Redskins owner Daniel Snyder against one of our own, Washington City Paper. The term “SLAPP” stands for Strategic Lawsuit Against Public Participation. It’s a lawsuit filed simply for the purpose of shutting someone up. It’s seen most often nowadays in the consumer review context: someone posts a bad review to Yelp about a company and the company sues them for defamation even though there’s no real case, because the company knows the person will capitulate and remove the review

Anti-SLAPP statutes try to level the playing field to avoid frivolous lawsuits. They usually do this by creating an expedited procedure for dismissing something that is clearly a SLAPP lawsuit, so that the defendant doesn’t ring up excessive legal fees in the short term; some even allow for a winning defendant to get damages. About 30 states have these; some are stronger than others.

Virginia doesn’t have one, Maryland’s is terrible. D.C. just passed one a couple years ago. The courts are still trying to determine its reach. One issue that’s come up in a couple cases is whether the D.C. “state” statute can be applied in federal court (there is no federal Anti-SLAPP law, though there has been a lobbying effort for such a law in recent years and AAN is a supporter of that effort).

Enter Farah v. Esquire Magazine. Joe Farah and his fellow conservatives over at WorldNetDaily were about to publish a book entitled “Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President.” Esquire did a satirical blog post about the upcoming book that Farah, et al, thought was false and defamatory. Farah sued for defamation; Esquire contended this was First Amendment protected satire and further invoked the D.C. Anti-Slapp to get it kicked out quickly.

Farah argued that the D.C. Anti-SLAPP law is purely procedural (it simply governs how the case progresses) and, as such, could be applied in a federal court proceeding. The Defendants argued that the law is substantive (it changes the rights of the parties and dictates the actual outcome) and that a federal court simply applies the state law like it would the state’s defamation law.

The United States District Court for the District of Columbia ruled for Esquire, holding both that this is protected satire and also that the D.C. Anti-Slapp applies because it is a substantive law. Farah has now appealed to the United States Court of Appeals.

That’s where AAN joined in, along with 13 other media companies and organizations, on an amicus brief drafted by the Washington, D.C. office of Levine Sullivan Koch and Schulz (who also defended Washington City Paper against Daniel Snyder). The brief not only explains the importance of Anti-SLAPP laws for individuals and the media alike, pointing out stories that survived frivolous lawsuits only through the help of Anti-SLAPP laws, it explain explains how a ruling that the D.C. law cannot be applied in federal court would gut this law entirely (as plaintiffs would always file in federal court to take the Anti-SLAPP out of play).

AAN is proud to participate on those grounds alone but felt it was absolutely crucial to all our members that we participate here. There is obviously more in play than just the outcome of this case or the applicability of the D.C. Anti-SLAPP law: other federal courts might refuse to apply Anti-SLAPP laws around the country if the plaintiffs get a broad ruling in this case that the D.C. Anti-SLAPP law is procedural in nature.