D.C. Circuit Court of Appeals Slaps Down Anti-Slapp Statute

For the first time since Anti-SLAPP Statutes have been enacted, a U.S. Court of Appeals has ruled that one did not apply in federal court to a defamation defendant's efforts to obtain a pre-answer dismissal of a complaint and the recovery of its attorney's fees.  In Abbas v. Foreign Policy Magazine, a case where we represented the plaintiff, Yasser Abbas, the United States Court of Appeals for the District of Colombia Circuit held that the D.C. Anti-SLAPP Statute's special motion to dismiss procedure did not apply in federal court.  The term SLAPP is an acronym for Strategic Lawsuits Against Public Participation.  The question posed to the court was whether the D.C. Statute was in conflict with Federal Rules 12 and 56.  The court stated that the D.C. statute "establishes the circumstances under which a court must dismiss a plaintiff's claim before trial--namely, when the court concludes that the plaintiff does not have a likelihood of success on the merits."  Federal Rules of Civil Procedure 12 and 56, however, "answer the same question" and they do so differently since they do not require a plaintiff to show a likelihood of success on the merits before any discovery.   Relying on Justice Scalia's plurality opinion in a case called Shady Grove, the D.C. Circuit Court held that Rules 12 and 56 (rather than the D.C. Anti-SLAPP Statute) govern in diversity cases in federal court unless Rules 12 and 56 violate the Rules Enabling Act.  

The Rules Enabling Act empowers the Supreme Court to "prescribe general rules of practice and procedure and rules of evidence" for cases in the federal courts.  A Rule violates the Rules Enabling Act if it abridges, enlarges, or modifies any substantive right.  Any rule that" really regulates procedure" is valid under the Rules Enabling Act.  Since Rules 12 and 56 are quintessentially procedural rules, the Court had little trouble concluding that they passed muster under the Rules Enabling Act.  Because the court did not allow recovery under the Anti-SLAPP Statute, the Court also held that the defendants were not entitled to recover the very substantial attorneys fees they sought under the Statute.

Unfortunately, the D.C. Circuit affirmed the dismissal of the complaint under Rule 12 (b)(6) on the ground that the questions posed by the article concerning whether Mr. Abbas and his brother were "growing rich off their father's system" and whether they "have enriched themselves at the expense of regular Palestinians and U.S. taxpayers" were not defamatory because they were not factual representations.  While recognizing, as Mr. Abbas argued, that "a question's wording or tone or context sometimes may be read as implying the writer's answer to the question," the Court stated that to make out a defamation-by-implication claim even with affirmative statements, D.C. law requires an "especially rigorous showing."  To date, no D.C. case has allowed a defamation-by-implication claim based on mere questions.  To so hold, the Court indicated it would be necessary to devise a good  and predictable way to divide the questions that are routinely posed in America's robust public forums from the kinds of questions that would be actionable as defamation by implication under Mr. Abbas's theory based on the wording, tone or context of a publication.  In this connection, Mr. Abbas argued that the fact that the article could reasonably be read to imply the defamation alleged by Mr. Abbas was best shown by the fact that the comments following the on-line article, when responding to the article, overwhelmingly understood the article to, not just imply, but to be actually making the claims the author was alleging via his questions. Mr. Abbas has not yet decided whether he will appeal further. This case is a landmark decision and the firm thanks our entire team of Lou Adolfsen, Dwight Stephens, Rania Shoukier, and Mike Panayotou.