Brief of Amicus Curiae Supporting Appellees/Cross-Appellants and Seeking Reversal in Part
Wielded against citizens and organizations—including public-interest advocacy organizations—strategic lawsuits against public participation (SLAPPs) “masquerade as ordinary lawsuits.” Hilton v. Hallmark Cards, 599 F.3d 894, 902 (9th Cir. 2009). But unlike plaintiffs in ordinary cases, plaintiffs who bring SLAPP suits have little chance of winning in court. Their goal is not to win. Instead, plaintiffs bring these cases to “silence, harass[,] and obstruct political opponents” by wasting their time and depleting their often-limited funds—and thus to chill their protected speech. Dwight H. Merriam & Jeffrey A. Benson, Identifying and Beating a Strategic Lawsuit Against Public Participation, 3 Duke Envtl. L. & Pol’y F. 17, 17 (1993).
Because SLAPP suits weaponize the legal system to chill free speech on issues of public concern, a majority of states have passed laws to deter these lawsuits. In 2010, the District of Columbia joined them, by enacting Anti-SLAPP Act of 2010, D.C. Code § 16-5501, et seq. The D.C. Council passed the Act after finding that SLAPP suits “are often without merit, but achieve their filer’s intention of punishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected rights.” Council of the District of Columbia, Committee on Public Safety and the Judiciary, Report on Bill 18-893, at 4 (Nov. 18, 2010) (“Council Report”). In light of these risks, the Act aims to ensure that “District residents are not intimidated or prevented, because of abusive lawsuits, from engaging in political or public policy debates.” Id.
Several provisions protect speakers and advocates from censorious lawsuits.
First, a defendant “may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16- 5502(a). The court will grant that motion if (1) the defendant makes “a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” and (2) the plaintiff fails to show the “claim is likely to succeed on the merits.” Id. § 16-5502(b). If that motion is granted, moreover, the defendant may recover the legal fees spent defending against the frivolous SLAPP suit. Id. § 16-5504(a).
The District’s law protects victims of SLAPP suits brought in local D.C. courts. But in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015), this Court held that the Act does not apply to diversity suits brought in federal court, based on the Court’s belief that the Act’s “likelihood of success” is “different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56.” Id. at 1335. This belief, however, turned out to be wrong: A year later, the D.C. Court of Appeals held that the Act’s threshold requirement—that the suspected SLAPP suit be “likely to succeed on the merits”—“mirror[s] the standards imposed by Federal Rule 56.” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1238 n.32 (D.C. 2016) (citations omitted).
Despite this ruling, the district court concluded that a conflict persists—and Abbas continues to control—because the Act allows defendants to file a special dismissal motion before discovery has concluded, forcing the plaintiffs to “show their hands” with specific evidence. But that, too, does not prevent applying the Act here. For one, this lawsuit was dismissed on the pleadings, under Rule 12(b)(6), such that no amount of discovery could have salvaged plaintiffs’ claims; hypothetical conflicts in other cases are no reason to decline a conflict-free application in this case. Even in other cases, in which the pleadings state a claim as a matter of law, no unavoidable conflict is presented by a pre-discovery motion; Federal Rule of Civil Procedure 56 itself allows for summary-judgment motions before the end of—or even the start of—discovery, and thus put plaintiffs in the same position as does the Act.