Dear Chairman Mendelson,
Bill 24-0493, the “Anti-SLAPP Amendment Act of 2021,” was introduced in October 2021 and has never been the subject of a public hearing or roundtable.1 Nevertheless, it has been folded into the unrelated Bill 24-0076, the “Corrections Oversight Improvement Omnibus Amendment Act of 2022,” which is scheduled for first reading next week.
We oppose this bill. As we explain below, we think it is an outrageous attempt to shield potential government misconduct from the legal rules that apply to everyone else.
The Anti-SLAPP Act was passed to deter the filing of abusive lawsuits targeting speech on issues of public interest, and to minimize the harm such lawsuits cause when filed. It advances those goals in two ways: first, it establishes a mechanism whereby such lawsuits can be quickly dismissed; second, it makes the defendant whole by requiring the plaintiff who filed the abusive lawsuit to pay the legal fees incurred in getting the case dismissed.
The proposed amendment would provide that the Anti-SLAPP Act “shall not apply to . . . any claim brought by the District government, including District public charter schools.” (Committee Print, lines 132-33.)
If the District government does not file abusive lawsuits targeting speech on matters of public concern, then it has nothing to fear from the Anti-SLAPP Act. If lawsuits filed by the District are not SLAPPs, then they will not be dismissed and the District will not be required to pay anyone’s legal fees. And the District government is in a far better position than almost any other litigant to avoid filing abusive lawsuits. OAG has the ability to conduct the kind of pre- litigation investigation that others can only dream about—it can even issue pre-litigation investigatory subopoenas. Unlike some plaintiffs, it is well aware of the Anti-SLAPP Act and can bear the Act in mind when considering litigation. Prospective lawsuits are reviewed by multiple layers of experienced supervisors, which is rarely the case in private litigation.
Thus, if a District agency does file an abusive lawsuit, it is unlikely to be innocent or accidental. For example, it is not impossible to imagine that the D.C. Housing Authority might sue a group of tenant activists who are creating bad publicity for the agency. That is exactly the kind of lawsuit the SLAPP Act is intended to address. The proposed amendment specifically protects public charter schools, but it is easy to imagine a charter school board suing a parent or a group of parents who publicly criticize the actions of the board. In such a situation, there is no good reason why the charter school board shouldn’t be treated the same as any other entity or person that files a similar lawsuit.
The Committee Report quotes OAG’s argument in support of the amendment: “This change is especially urgent because local enforcement actions have been obstructed by invocation of anti-SLAPP statutes. What’s more, large oil companies have used anti-SLAPP laws to stop state enforcement cases across the counter [sic; should be “across the country”], and OAG’s pending suit is vulnerable to this sort of attack without amendments to clarify the law’s reach.” (Committee report at 15 n.80.)
OAG’s argument does not withstand analysis. By law, a special motion to dismiss a lawsuit under the Anti-SLAPP Act must be filed within 45 days (D.C. Code § 16-5502(a)) and the court must expedite its consideration (D.C. Code § 16-5502(d)). Such motions are typically filed together with ordinary motions to dismiss under Rule 12, and while any motion to dismiss typically postpones discovery, neither an ordinary motion to dismiss nor an Anti-SLAPP motion prevents urgent matters, such as a motion for a preliminary injunction, from moving forward. If a lawsuit does not involve a motion for a preliminary injunction or other emergency relief, then dealing with an Anti-SLAPP motion is just an ordinary—and brief—part of the usual litigation process, and creates no additional delay. The only real effect of the proposed amendment would be to let District agencies off the hook when they engage in misconduct. That is not a goal the Council should support.
The Committee Report on Bill 24-0076 states that allowing Anti-SLAPP motions to be filed against the District government “was not the Council’s intent in passing the Anti-SLAPP law” (p. 17), but that statement has no basis in fact. It was certainly not the Council’s intent to exempt the District government from the Anti-SLAPP law. Rather, the law was written to apply to all lawsuits that fit the Act’s criteria; that was the Council’s intent. The proposed amendment thus does not “clarify” the Anti-SLAPP Act; it limits it in a significant way. The amendment should not be adopted without an opportunity for full public input.
We therefore urge the Council to excise the text of Bill 24-0493 (which is now section 5 of Bill 24-0076) from the omnibus bill. If there is further interest in the proposal, it can be re-introduced in the next Council Period and scheduled for a public hearing where its merits and demerits can be explored.
