Attorneys for former U.S. Department of Agriculture official Shirley Sherrod are challenging the use of Washington's new anti-SLAPP law (strategic lawsuit against public participation) in federal court.
In briefs filed last night in Sherrod's defamation suit against conservative blogger Andrew Breitbart, Sherrod is arguing that Breitbart should be barred from bringing a motion to dismiss under the law because, among other reasons, the local statute is procedural and conflicts with federal rules.
The dispute is the first known test of the new statute since it went into effect March 31. The law – one of more than two dozen already passed in other states – offers an early remedy, in the form of a special motion to dismiss that stays discovery pending resolution, for defendants who believe they are being sued over protected speech.
Sherrod is suing Breitbart and two other defendants over the release of a video clip and other text posted on Breitbart’s Web site claiming the video offered proof that Sherrod, who is black, discriminated against white farmers. Sherrod, in her complaint (PDF), has argued that Breitbart made defamatory accusations of racism based on a “deceptively edited” clip.
Breitbart and co-defendant Larry O’Connor, who works with Breitbart, are moving for dismissal (PDF) under the city’s anti-SLAPP law, claiming Sherrod’s suit is a pretext for “a direct assault on the Constitutionally guaranteed rights of free speech.”
But in her opposition brief (PDF), Sherrod says the statute is off-limits in federal court. Arguing that a SLAPP motion is a procedural, and not substantive, remedy, she writes that “the statute shifts and reallocates the burden on the plaintiff in a way entirely at odds with Federal Rule of Civil Procedure.”
Sherrod cited decisions in Georgia, Massachusetts and California where judges have declined to allow anti-SLAPP laws to apply in federal court.
She is also claiming Breitbart is time-barred from bringing the motion – the statute gives defendants 45 days after a complaint is filed to do so – and, alternatively, that the law cannot be retroactively applied to a case that began before the statute went into effect.
Breitbart and O'Connor have also moved for dismissal or a transfer of venue under federal rules.
Sherrod’s attorney, Thomas Clare of Washington’s Kirkland & Ellis, did not immediately return a request for comment Friday morning. Eric Kuwana of Washington’s Katten Muchin Rosenman, part of the team of Katten attorneys representing Breitbart, and Bruce Sanford of Washington’s Baker & Hostetler, who is representing O’Connor, also could not immediately be reached for comment.