February 15, 2012
Anti-SLAPP Statute Not Enforceable in Federal Court
Judge Richard J. Leon (D.D.C.) issued reasons today for his earlier ruling rejecting bloggers Andrew Breitbart and Larry O'Connor's motion to dismiss Shirley Sherrod's defamation action against them. Breitbart and O'Connor moved to dismiss under D.C.'s Anti-SLAPP statute, a law that allows defedants to file a special motion to dismiss if they can show that the claim at issue arises from an act in furtherance of the right to free speech related to an issue of public concern. Judge Leon wrote that because the Act is purely procedural, the Erie doctrine bars its application in federal court.
The case arises out of Breitbart's posting of an edited and misleading video of a speech Sherrod made when she was Georgia State Director for Rural Development for the USDA. Sherrod sued for defamation, false light, and IIED; Breitbart and O'Connor moved to dismiss under the Anti-SLAPP Act.
Section 3 of the D.C. Anti-SLAPP Act says,
(a) A party 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 within 45 days after service of the claim.
(b) If a party filing a special motion to dismiss under this section 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, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
Judge Leon wrote that Breitbart and O'Connor filed their motion to dismiss before the Act was effective, that the Act is procedural (not substantive) and is therefore barred in federal court by Erie v. Tomkins, and that the defendants filed after the 45-day deadline in subsection (a). Judge Leon's earlier ruling means that the case can move forward; his reasons filed today only explain that ruling.
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