A Strategic Lawsuit Against Public Participation (“SLAPP”) is a term for a legal action that is of little merit but is filed anyway for the purpose of stopping someone from engaging in (usually constitutionally protected) speech by burdening them with a costs of a lawsuit. In December of 2010, the D.C. Council passed, with strong ACLU support, an Anti-SLAPP Act that provides a special procedure for people engaged in advocacy on public interest issues to have a court dismiss SLAPP suits quickly.
This D.C. Circuit appeal presented two important questions about the new D.C. Anti-SLAPP Act: does it apply in federal court, and can denials of “special motions to dismiss” filed under the Act be immediately appealed? In September 2012, we filed an amicus brief, together with Public Citizen Litigation Group, showing why both answers should be “yes.”
First, we argued that the denial of a special motion to dismiss should be immediately appealable under the “collateral order rule.” Immediate appeals feature prominently in anti-SLAPP laws around the country; the D.C. statute lacks such a provision only because a then-recent D.C. Court of Appeals decision indicated that such a provision would be beyond the Council’s power (that decision was later vacated, leaving the law uncertain).
Second, we addressed the standard created by the D.C. Anti-SLAPP statute that a case should be dismissed if the defendant is being sued for advocacy on issues of public interest, and if the plaintiff can’t show that their claim is likely to succeed on the merits. Our brief argued that this standard is a matter of substantive law rather than procedure, and should therefore be applied in both federal and D.C. courts. Otherwise, people filing SLAPP suits will simply file them in federal court whenever possible and thereby avoid application of the law.
We argued the appeal in March 2013. But three months later, the court of appeals ruled that the original motion to dismiss had not been timely filed in the district court, and had therefore properly been denied on that ground. The court therefore did not address the legal questions that we had briefed.