C&P Asks D.C. Circuit to Apply DC's Anti-SLAPP Law in Federal Court

Earlier this week Clinton & Peed filed a brief urging the U.S. Court of Appeals for the D.C. Circuit to rule that the District’s Anti-SLAPP Act—a law that protects people and organizations against abusive SLAPP suits designed to harass public advocates and censor public advocacy—applies to cases brought in federal court. The amicus brief, filed in Tah v. Global Witness Publishing, Inc., was filed on behalf of eleven prominent public-interest advocacy organizations.

In the underlying case, international corruption watchdog group Global Witness is being sued for defamation by Christina Tah and Randolph McClain, who received $35,000 financial bonuses after helping to negotiate the sale of off-shore drilling rights from the Liberian government to Exxon Mobil Corporation. The plaintiffs brought the SLAPP suit—a Strategic Lawsuit Against Public Participation—in federal district court in Washington, DC after Global Witness published an article allegedly implying that the plaintiffs had taken bribes to facilitate the sale. Although the district court granted Global Witness’s motion to dismiss the lawsuit under Federal Rule 12(b)(6) because the plaintiffs failed to state a valid legal claim, the court denied Global Witness’s special motion under the D.C. Anti-SLAPP Act, D.C. Code § 16-5501 et seq. In doing so, the trial court relied on an earlier D.C. Circuit case holding that the Act does not apply to diversity suits brought in federal court, even though it would apply to the same lawsuits brought in the local D.C. courts. If the Act does not apply in federal court, SLAPP defendants like Global Witness are forced to bear their own legal fees and costs.

In supporting Global Witness and arguing that the Anti-SLAPP Act applies in federal court, our brief explains that a recent D.C. Court of Appeals decision interpreting the Act undermines the basis for the earlier D.C. Circuit decision limiting the Act’s application to local courts. And more generally, SLAPP suits brought in federal court harm speakers just as much as do SLAPP suits brought in local courts:

Even before [the D.C. Court of Appeals decision], SLAPP suits brought in federal court were just as abusive as those brought in local court; protected speech is no less chilled merely because the plaintiffs have strolled a few extra blocks to the federal courthouse. And now that the D.C. Court of Appeals has clarified that SLAPP-suit plaintiffs in federal court need not make a stronger showing than do SLAPP-suit plaintiffs in local courts, there is no reason to leave speakers exposed in federal court.

The brief also describes the serious threats posed by SLAPP suits—even if the abusive lawsuit is eventually dismissed. Quoting, the D.C. Council, our brief explains:

Left unchecked and undeterred, these lawsuits can waste years of time and massive sums of money. Of course, every hour or dollar spent fighting an abusive lawsuit is one that cannot be used to advance the organization’s mission or contribute to public debate. And as both SLAPP plaintiffs and SLAPP defendants are well aware, the ultimate ruling is beside the point; in SLAPP suits, “litigation itself is the plaintiff’s weapon of choice.”

We filed the brief on behalf of an ideologically diverse group of non-governmental organizations: Cato Institute, Competitive Enterprise Institute, Council on Foreign Relations, Environmental Working Group, Human Rights First, International Crisis Group, Oceana, Oxfam America, Pen (America), Southern Poverty Law Center, and Union of Concerned Scientists.

The brief was written by partner Greg Lipper, whose practice includes appellate and Supreme Court litigation and First Amendment cases. Greg has filed dozens of briefs in First Amendment cases in federal appellate courts, including the U.S. Supreme Court. And earlier in his career, he conducted pre-publication review for local news broadcasters across the country and spent several years representing the Newspaper Association of America in its effort to persuade Congress to enact a federal law protecting reporters from being forced to identify their confidential sources. 

Clinton & Peed has a robust appellate practice in federal and state appellate courts. In addition to regularly briefing and arguing civil and criminal appeals on behalf of private and court-appointed clients, we have represented a variety of individuals and organizations pro bono, including in cases presenting some of the most complex and high-profile issues before the Supreme Court.