Conservative blogger Andrew Breitbart wants the U.S. Court of Appeals for the District of Columbia Circuit to weigh in for the first time on whether Washington's new anti-SLAPP law can be applied in federal court, and also whether a District Court judge erred in denying Breitbart's motions to dismiss a libel lawsuit against him.
Former U.S. Department of Agriculture official Shirley Sherrod is suing Breitbart in U.S. District Court for the District of Columbia, claiming she was forced out of her job after Breitbart posted a clip of a speech that appeared to show her saying she discriminated against white farmers.
Sherrod accused Breitbart, Breitbart’s co-worker Larry O’Connor, and an as-yet-unidentified third defendant of making false claims of racism based on a clip that was “deceptively edited” and taken out of context. The defendants filed two motions to dismiss, one of which was under Washington’s new law barring strategic lawsuits against public participation, better known as SLAPPs.
U.S. District Judge Richard Leon denied the motions on July 28. He did not issue a written opinion.
On Friday evening, Breitbart and O’Connor filed a request (PDF) asking Leon to certify an interlocutory appeal to the D.C. Circuit.
Breitbart and O’Connor are arguing that the appeal “raises significant, important issues of first impression,” including whether the city’s law barring SLAPPs can be applied in federal court and whether the law can be applied to cases that were filed before it went into effect.
Washington’s anti-SLAPP law went into effect March 31, offering an early remedy in the form of a special motion to dismiss that stays discovery pending resolution for defendants who believe they’re being sued over protected speech.
Breitbart and O’Connor have claimed that in posting the clip and accompanying texts, they were engaging in protected speech under the First Amendment. In their appeal, the two are also seeking a review of the underlying merits of their motions to dismiss.
Breitbart and O’Connor are being represented by attorneys from Katten Muchin Rosenman and Baker & Hostetler. Sherrod is being represented by attorneys Kirkland & Ellis. Counsel on both sides could not immediately be reached for comment this morning.