Anti-SLAPP protection

DC Code § 16-55 creates a special motion to dismiss lawsuits “arising from an act in furtherance of the right of advocacy on issues of public interest.”

Law summary

The District’s anti-SLAPP law includes both a special motion to dismiss and a special motion to quash.

When a defendant files a special motion to dismiss under the District’s anti-SLAPP law, they must first prove that the “claim at issue” arises from “an act in furtherance of the right of advocacy on issues of public interest.” The burden of proof then shifts to the plaintiff, who must then prove that their case can survive on merits. If the defendant’s motion succeeds, the lawsuit is dismissed on prejudice.

A special motion to dismiss must be filed within 45 days of the service of the claim. As affirmed in Abbas v. Foreign Policy Group (2015), the code doesn’t apply to diversity claims in federal court.

Legal actions

D.C.’s anti-SLAPP law includes four key features to protect publishers:

• Special motion to dismiss: A defendant can file a motion to permanently dismiss a lawsuit if it qualifies as a SLAPP (DC Code § 16-5502)
• Expedited hearing: The law requires the court to hold an expedited hearing on the motion.
• Discovery: Defendants are usually not subject to discovery before the motion is ruled on, although the court can declare exemptions and order “specified discovery” if it is believed to be “unduly burdensome” and would help the plaintiff defeat the motion.
• Attorney fees: The court may award the prevailing party with litigation costs.

The special motion to quash (DC Code § 16-5503) applies to a discovery order, request or subpoena that seeks to uncover identifying information in a claim “rising from an act in furtherance of the right of advocacy on issues of public interest.” Like the special motion to dismiss, the court may award the prevailing party with litigation costs.

Helpful cases

Since its implementation, District of Columbia courts have an extensive history with anti-SLAPP lawsuits. Although none of the cases below involve journalists, they concern defamation cases over published materials. Here are three cases that might be helpful to journalists:

John Doe No. 1 v. Susan L. Burke (2014)

Susan Burke sued an anonymous Wikipedia user, known as Zujua, for defamation regarding information they had added on her Wikipedia page. Burke removed “Zujua’s” contribution, and although other users restored some statements, “Zujua” did not contribute to the restoration of those statements. Zujua filed a special motion to quash under the District’s anti-SLAPP code. The Superior Court denied the request, but a motion to quash was granted on remand. (Note: Eight journalists’ organizations filed an amicus brief in support of Zujua). Zujua then sought to recover fees under the code but was denied. In 2016, Zujua won their appeal and were awarded over $400,000.

Jacobson v. Clack (2024)

Mark Jacobson sued Christopher Clack and the National Academy of Sciences over a journal article that criticized one of Jacobson’s research papers. Clack and the academy filed a motion under the District’s anti-SLAPP code, but two days before the trial court ruled on the case, Jacobson dropped his lawsuit. When Clack and the NAS sought to recover attorneys’ fees through the anti-SLAPP code, Jacobson claimed that since they had not prevailed, they were not entitled to fees. Despite Jacobson’s opposition, the trial court claimed Clack and the NAS had prevailed in the case and awarded the fees. The court of appeals affirmed the decision.

German Khan, Mikhail Fridman and Petr Aven v. Orbis Business Intelligence Limited and Christopher Steele (2023)

Orbis and Steele were sued for defamation in 2018 over a collection of “opposition research reports” relating to the 2016 presidential election that had alleged Khan, Fridman and Aven of connections to Russian president Vladimir Putin. Steele and Orbis filed a motion to dismiss under the District’s anti-SLAPP code. The motion prevailed, as the appellants hadn’t demonstrated that Orbis and Steele had acted with “actual malice.” Orbis and Steele moved to recover litigation costs under the anti-SLAPP law. The trial court ordered appellants to pay both the costs incurred in the original litigation, as well as those incurred by the dispute over fees. The court of appeals upheld the trial court’s decision.

Legislative activity

The Anti-SLAPP Emergency Amendment of 2021 exempted any claims brought by the District government from the code. Temporary amendments continued to uphold the exemption, before the language became a permanent addition to the law in 2023.

Another part of the law was amended in 2023 that added exemptions pertaining to claims against a person engaged in business.

Of note

The ACLU wrote to the D.C. Council in opposition to the Anti-SLAPP Emergency Amendment of 2021.

Also, an ongoing case, might influence interpretations of D.C.’s anti-SLAPP code. In Banks v. Hoffman (2023), a 2015 report published on the American Psychological Association (APA) website alleged collusion between APA officials and the Department of Defense to support the department’s interrogation techniques without ethical constraints from APA guidelines. Three retired military psychologists named in the report sued the APA. In response, the APA filed a motion under the District’s anti-SLAPP code. The motion was affirmed by the trial court but struck down on appeal after the appeals court found the discovery-stay provision of the District’s anti-SLAPP statute to be in violation of the District’s Home Rule Act. The Reporters Committee for Freedom of the Press wrote in opposition to the decision. In January 2024, the court agreed to rehear the case.