Friday, September 8, 2023

Defamation In D.C.

One unfortunate consequence of blogging has been learning more about the law of defamation than I ever had cared to.

The District of Columbia Court of Appeals decided two interesting cases involving the local anti-SLAPP provisions yesterday.

One involved this suit

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”).

Remand ordered by the Court

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.

The other suit involved a book published about the so-called Deep State 

In 2019, appellant Salem Media Group, Inc., published a book titled Obstruction of Justice: How the Deep State Risked National Security to Protect the Democrats (hereinafter, Obstruction of Justice). The book details its author Luke Rosiak’s investigative journalism into the activities of  appellees Imran Awan, Abid Awan, Jamal Awan, Tina Alvi, and Rao Abbas. These five individuals, whom the parties have referred to collectively as “the Awans,” are former information technology support staff employed by the U.S. House of Representatives. As previously had been reported in the news media, the Awans were investigated for alleged violations of House policies and possible crimes relating to equipment procurement, IT security, and other job-related matters. The Awans sued Salem for defamation, intentional infliction of emotional distress (IIED), and unjust enrichment based on Rosiak’s statements in Obstruction of Justice regarding their alleged misconduct.

The court

First, Salem contends the court erred in failing to dismiss the Awans’ defamation claim for lack of sufficient proof of malice on Salem’s part. Recognizing that the goal of compensating persons who are harmed by the publication of libelous falsehoods may be in tension with the core First Amendment goal of protecting vigorous speech and debate about issues of public interest, the Supreme Court has held that certain plaintiffs asserting defamation claims directly implicating that constitutional concern must prove the defendants acted with a heightened degree of culpability in publishing the injurious lies. Specifically, plaintiffs who are considered to be “public figures” must prove the defendant defamed them with “actual malice,” a more demanding fault standard than the simple negligence standard that otherwise would apply to claims of defamation asserted by private figures. In the present case, Salem contends the Awans had to prove it published the libels in Obstruction of Justice with actual malice because each of them was a “limited-purpose public figure,” a term used to describe a person who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Alternatively, Salem argues that the Awans became “involuntary public figures,” a term reserved for persons who are so central and well known with respect to a particular public controversy that they become public figures even if they do not desire or seek the public’s attention.

The Awans were employed as IT support staff at the House of Representatives and had no involvement with the press prior to the government investigations. We conclude that the trial court properly found, on the evidence before it, that the Awans were not limited-purpose or involuntary public figures based either on their voluntary actions with respect to the public controversy surrounding them or their centrality and prominence with respect to that controversy. The trial court therefore did not err in rejecting Salem’s special motion to dismiss the defamation count of the Awans’ complaint for lack of proof of actual malice.

Second, Salem argues that the trial court erred in denying its special motion to dismiss the Awans’ IIED claim. Such a claim requires a plaintiff to prove that the defendant engaged in “extreme and outrageous conduct” that “intentionally or recklessly” caused the plaintiff to suffer “severe emotional distress.” We agree with Salem that, in accordance with the Anti-SLAPP Act, the court should have dismissed this claim for lack of sufficient evidence that Salem’s publication of Obstruction of Justice amounted to “extreme and outrageous” conduct.

Lastly, the Awans’ unjust enrichment claim seeks disgorgement of the profits Salem earned through its defamatory publication of Obstruction of Justice. We agree with Salem that this equitable remedy is not available for the defamation alleged in this case. We therefore reverse the denial of Salem’s special motion to dismiss the unjust enrichment count.

(Mike Frisch)

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