D.C. Circuit Wants Answers From Trial Judge On Denial Of Anti-SLAPP Motion

In July, U.S. District Judge Richard Leon issued a series of two-sentence orders denying blogger Andrew Breitbart's motions to dismiss a defamation lawsuit against him in Washington federal court. The U.S. Court of Appeals for the D.C. Circuit, which is considering Breitbart's appeal of those orders, wants more.

In an order (PDF) issued yesterday afternoon, the three-judge appellate panel put the case on hold and asked Leon to provide a "statement of reasons" explaining his ruling.

Former U.S. Department of Agriculture official Shirley Sherrod sued Breitbart last March in U.S. District Court for the District of Columbia, claiming she was unfairly forced out of her job after Breitbart posted a clip of a speech that seemed to show Sherrod, who is black, admitting to discriminating against white farmers.

In the complaint (PDF), Sherrod accused Breitbart, Breitbart’s colleague Larry O’Connor and an anonymous third defendant of defamation for making false claims of racism based on what Sherrod argued was a “deceptively edited” clip. The defendants filed two motions to dismiss, one under the District’s law barring strategic lawsuits against public participation, known as SLAPPs.

Leon's denial of the anti-SLAPP motion is the focus of Breitbart’s appeal, although he and O’Connor are also seeking review of the denial of their general motion to dismiss.

The city’s anti-SLAPP law, which went into effect March 31, offers an early remedy for defendants who believe they’re being sued over protected speech. Breitbart and O’Connor have argued that in posting the clip and accompanying text, they were engaging in protected speech.

Leon’s brief order stands in contrast to a recent decision from U.S. District Judge Robert Wilkins, who, in a 55-page opinion (PDF), denied a motion to dismiss under the anti-SLAPP law in a separate defamation case. In that Feb. 2 ruling, Wilkins found that the law conflicts with Federal Rules of Civil Procedure on several fronts, including that it places a higher burden on plaintiffs to avoid dismissal and strips the court of discretion to decide whether to dismiss with or without prejudice (the anti-SLAPP law requires dismissal with prejudice).

In Sherrod’s opposition to the anti-SLAPP motion, she similarly argued that the law was at odds with the Federal Rules of Civil Procedure. Since filing the notice of appeal, though, Breitbart and O’Connor have notified the court of decisions in the District of Columbia Superior Court and other federal courts granting motions to dismiss under anti-SLAPP laws.

Sherrod’s attorney, Thomas Clare of Washington’s Kirkland & Ellis, could not immediately be reached for comment. A lead counsel for Breitbart, Eric Kuwana of Washington’s Katten Muchin Rosenman also could not be reached this morning. An attorney for O’Connor, Bruce Brown of Baker & Hostetler, declined to comment.

D.C. Circuit Judges Judith Rogers, Merrick Garland and Janice Rogers Brown are hearing the case.

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