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Defamation Case Heard En Banc In D.C.

By Michael Frisch

The District of Columbia Court of Appeals is hearing oral argument en banc today of a decision that reversed the trial court’s dismissal of a defamation action brought against Sidley & Austin and others

This matter is an appeal from the Superior Court’s dismissal of a defamation action pursuant to the special-motion-to-dismiss provisions of the District of Columbia Anti-SLAPP Act.  In challenging the dismissal, plaintiffs/appellants argue inter alia that the D.C. Anti-SLAPP Act is invalid because its enactment violated the District of Columbia Home Rule Act (the “Home Rule Act”).  For the reasons set out below, we agree that the Home Rule Act, and in particular its preservation of Title 11 of the D.C. Code, precluded the Superior Court from giving effect to the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss provisions. Accordingly, we reverse the judgment of dismissal and remand for further proceedings consistent with this opinion. In light of the discovery limitations the Superior Court implemented, we also vacate the court’s rulings on the “public official” and “republication” issues discussed below and remand as to those issues as well.

Plaintiffs/appellants are Col. (Ret.) L. Morgan Banks, III, Col. (Ret.) Debra L. Dunivin, and Col. (Ret.) Larry C. James. All three are retired military psychologists who were mentioned prominently in a report (“the Report”), published in 2015 on the American Psychological Association (“APA”) website, concluding that certain APA officials colluded with the U.S. Department of Defense (“DoD”) “to support the implementation by DoD of the interrogation techniques [directed at persons detained following the events of September 11, 2001] that DoD wanted to implement without substantial constraints from APA” ethical guidelines. The Report identifies each of the appellants by name as a key participant in the alleged collusion. Appellants filed the underlying action for defamation per se , defamation by implication, and false light invasion of privacy in 2017, naming as defendants the APA, which authorized and financed the Report; David H. Hoffman, the lead of a team of lawyers who conducted the underlying investigation and prepared the Report; and the law firm in which Hoffman is a partner, Sidley Austin LLP, and its affiliated entity Sidley Austin (DC) LLP (together, “Sidley”)

The APA, Hoffman, and Sidley filed special motions to dismiss the lawsuit pursuant to the D.C. Anti-SLAPP Act. SeeD.C. Code § 16-5502(a). In response, appellants moved to declare the Anti-SLAPP Act void as in contravention of the Home Rule Act, and as unconstitutional under the First Amendment right to petition for redress of grievances. The District of Columbia intervened to defend the Anti-SLAPP Act legislation. In two separate orders, the Superior Court first denied appellants’ motion to declare the Anti-SLAPP Act violative of the Home Rule Act and unconstitutional, and then granted appellees’ special motions to dismiss, finding that appellants had failed to show that they were likely to succeed on the merits of their defamation and related claims. Appellants now seek reversal of the Superior Court’s orders on five grounds: (1) enactment of the D.C. Anti-SLAPP Act violated the Home Rule Act because it is a legislative enactment with respect to Title 11 of the D.C. Code, which is beyond the authority the Home Rule Act conferred on the Council of the District of Columbia (the “Council”), and because the Act’s special-motion-to-dismiss procedure squarely conflicts with the mandate Congress set out in section 946 of Title 11 ( D.C. Code § 11-946 ); (2) the D.C. Anti-SLAPP Act is unconstitutional because it impairs exercise of the First Amendment right to petition for redress of grievances; (3) the Superior Court reached its determination that appellants were not likely to succeed on the merits of their claims by erroneously treating appellants as “public officials,” who can prevail on a claim of defamation only by showing that the defendants acted with actual malice; (4) even if the actual-malice standard applies, appellants came forward with evidence sufficient to permit a reasonable jury to find, by clear and convincing evidence, that appellees acted with actual malice in publishing the statements in issue; and (5) the Superior Court erred in ruling that the APA did not “republish” the Report in August 2018.

Holding under review

We conclude that we should remand the issue of appellants’ public-official status for the Superior Court to make the determination in the first instance, based on applying all of the relevant considerations and on a more fully developed record. Appellants emphasized at oral argument that some facts bearing on their status as public officials vel non is not in the record. They also suggest that the truth or falsity of some of the Report’s content (such as insinuations that appellants’ “private deliberations about APA policies … had [an] effect on governmental policies”) is relevant to resolution of the public-official issue.

Further, the present record affords us no insight into matters such as whether appellants’ policy-drafting efforts were types of tasks inherent in their roles as military officers, or whether they were assigned or undertook their efforts, alleged in the complaint or discussed in the Report, based on their “particular proclivities.” Mandel , 456 F.3d at 205-06 (explaining how “the factual record, at the summary judgment stage, was too uncertain to warrant a legal conclusion either way” about the public-official status of the plaintiff assistant state’s attorney). No discovery was conducted to assist in resolution of whether any or all of the appellants had “substantial responsibility for or control over the conduct of governmental affairs” by virtue of their positions (or whether, as they assert, they merely “executed the policy decisions of their superiors”); or whether appellants had access to the media to defend their reputations. We have not overlooked that appellants’ request for discovery does not appear to have been directed at obtaining information relevant to the public-official issue, but we are also mindful that appellants were describing the targeted discovery they wanted the court to permit, and they understandably focused on materials they thought would enable them to prove actual malice.

Briefs

(Mike Frisch)

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