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Banks v. Hoffman

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  1. Libel and Privacy

Court: District of Columbia Court of Appeals

Date Filed: Oct. 26, 2023

Background: In 2015, the American Psychological Association published an independent report, which it had commissioned, that concluded APA leadership had colluded with the U.S. Department of Defense in the aftermath of the 9/11 attacks to facilitate use of what the Bush Administration had termed “‘enhanced’ interrogation techniques.” As the APA report explained, such techniques were “ways of attempting to break the will of uncooperative detainees” so they would provide information to intelligence officials. Three retired military psychologists referenced in the report sued for defamation, alleging that the report falsely accused them of promoting torture.

The defendants moved to dismiss the lawsuit under the D.C. Anti-SLAPP Act, which allows for the quick dismissal of meritless lawsuits intended to chill speech about matters of public interest, also known as strategic lawsuits against public participation, or SLAPPs. The trial court dismissed the complaint, but a panel of the D.C. Court of Appeals reversed on appeal.

In its decision, the appeals court panel invalidated a provision of the D.C. Anti-SLAPP Act that automatically pauses discovery once a special motion to dismiss a SLAPP is filed. The panel held that the discovery-stay provision violates D.C.’s Home Rule Act. The appeals court panel also reversed the trial court’s finding that the plaintiffs were public officials for purposes of defamation law (and therefore required to meet a higher standard to prove they were defamed) and its holding that a hyperlink in an email, without more, was not a republication.

The court remanded for discovery and directed the trial court to consider the plaintiffs’ access to the media in its public official analysis. The defendants are seeking rehearing by the entire appeals court bench on these three holdings. The D.C. attorney general is requesting rehearing on the panel’s application of D.C.’s Home Rule Act to invalidate the anti-SLAPP Act’s stay provision.

Our Position: The appeals court should grant the petition for rehearing by the full court and reverse the panel decision.

  • The panel erred in invalidating the discovery-stay provision of the Act.
  • The panel erred by holding that a defendant must show a public official plaintiff had special access to the media.
  • Hyperlinking is not a republication as a matter of law.

Quote: “The panel’s erroneous application of the Home Rule Act to the D.C. Anti-SLAPP Act is enormously consequential. The Act is meant to allow for early dismissal of meritless lawsuits intended to drain the pockets of defendants. Without an automatic stay, defendants would face expensive and burdensome discovery while awaiting disposition of their anti-SLAPP motions.  Even if the motion is ultimately successful, and the SLAPP dismissed, there is no turning back the clock: the defendant sued for exercising First Amendment rights will have poured resources into defending the case.”

Update: On Jan. 23, 2024, the District of Columbia Court of Appeals issued an order vacating the panel decision and scheduling the case for review by the full court. On April 17, 2024, the Reporters Committee, joined by 32 media organizations, filed a second friend-of-the-court brief urging the Court of Appeals to affirm the trial court’s order dismissing the defamation lawsuit. 

April 17, 2024, brief:

Oct. 26, 2023, brief:

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