A federal appellate court today gave the green light to a defamation lawsuit filed against the late conservative blogger Andrew Breitbart by former U.S. Department of Agriculture official Shirley Sherrod. A three-judge panel affirmed a court order denying Breitbart’s motion to dismiss the case under the District of Columbia’s law barring strategic lawsuits against public participation, or SLAPPs.
Local lawyers hoping for a conclusive ruling on whether the anti-SLAPP law applies in federal court will have to keep waiting. In the ruling this morning, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit decided the case on procedural grounds.
The anti-SLAPP law, passed by the D.C. Council in March 2011, offered defendants an early route to dismissal if they believed they were sued over protected speech. The D.C. Circuit affirmed the denial of Breitbart's anti-SLAPP motion, finding the defendants missed the deadline to file.
The ruling didn’t resolve whether the law could apply in federal court, a question that has divided judges on the Washington federal bench. Another challenge to the law’s applicability in federal court is pending before the D.C. Circuit and a D.C. federal judge issued an opinion this morning in yet another case finding the anti-SLAPP law did apply.
Today’s opinion was a win for Sherrod. In her complaint, she accused Breitbart, his colleague Larry O’Connor and an as-yet-unnamed third defendant of posting deceptively edited content online that made it seem as if Sherrod, who is black, made statements admitting she discriminated against white farmers.
O’Connor and Breitbart, who died in March 2012, moved to dismiss Sherrod’s lawsuit under the anti-SLAPP law, arguing the content they posted online was protected under the First Amendment. In July 2011, U.S. District Judge Richard Leon denied the motion on three primary grounds: the defendants missed the deadline to file; the anti-SLAPP law couldn’t apply retroactively to lawsuits filed before it went into effect; and the law didn’t apply in federal court.
“We’re gratified with the court’s decision and are pleased it comes fairly soon after oral arguments,” said Sherrod’s attorney, Thomas Yannucci, a partner at Kirkland & Ellis. “We look forward to moving this case along, which we believe has been delayed unnecessarily to this point.”
O’Connor’s lawyers, Bruce Brown and Mark Bailen of Baker & Hostetler, could not immediately be reached for comment. Brown argued for the defendants. Breitbart’s attorney, Eric Kuwana of Katten Muchin Rosenman, entered an appearance in the appeal but did not argue. (Brown, who is also executive director of the Reporters Committee for Freedom of the Press, was a reporter for Legal Times, now merged with The National Law Journal. He represented the NLJ in a prior restraint action brought by beverage manufacturer POM Wonderful.)
The D.C. Office of the Attorney General also participated in the case. Ariel Levinson-Waldman, senior counsel to the attorney general, handled oral arguments before the D.C. Circuit on why the law should apply in federal court. In a statement today, an office spokesman, Ted Gest, said: "We appreciate the Court’s careful opinion and are pleased that it did not take issue with the applicability in federal court of the District’s Anti-SLAPP Act."
Senior Judge A. Raymond Randolph, writing for the appeals court, found Breitbart and O’Connor failed to file their motion within the 45-day window required by the anti-SLAPP law. The clock started running when Sherrod filed her complaint on February 12, 2011, the judge wrote, and the defendants filed their motion on April 18, 2011. O’Connor’s lawyers argued the trial judge granted an extension, but Randolph wrote the extension couldn’t apply to deadlines set out in federal or state law, as opposed to time limits set by the court or rules of procedure.
The court didn’t answer another big question raised on appeal, which was whether defendants could immediately appeal the denial of an anti-SLAPP motion. Appeals courts usually avoid hearing appeals before a case is closed, but a number of courts have allowed them in SLAPP cases. The D.C. Circuit found it didn’t need to address the “difficult” question of jurisdiction because the merits-that the defendants’ motion should be denied because they missed the filing deadline-were “a foregone conclusion.”
This morning, U.S. District Judge Reggie Walton released an opinion finding the anti-SLAPP law did apply in federal court. In the underlying case, the plaintiff, a former public official in the Republic of Liberia, sued the Atlantic Monthly Group Inc., over articles describing Boley as a “warlord.” Walton granted the Atlantic’s anti-SLAPP motion, citing rulings from the First, Ninth and Fifth Circuit courts that federal courts could enforce state anti-SLAPP laws in certain types of cases.
Walton said a previous opinion by his colleague U.S. District Judge Robert Wilkins finding the law didn’t apply in federal court, although “thoroughly reasoned…conflicts with the weight of authority.”
The D.C. Circuit will have another opportunity to weigh in on the use of anti-SLAPP motions in federal court in a defamation lawsuit against Esquire Magazine. In that case, online publisher Joseph Farah sued over a blog post about his challenge to President Barack Obama’s eligibility to serve as president. U.S. District Judge Rosemary Collyer, finding the article was satire, granted Esquire’s motion to dismiss under the anti-SLAPP law, and Farah appealed. Arguments have not been scheduled.