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Tah v. Global Witness Publishing

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  1. Libel and Privacy

Amicus brief filed by the Reporters Committee for Freedom of the Press and 26 media organizations

Court: U.S. Court of Appeals for the District of Columbia Circuit

Date Filed: March 18, 2020

Background: In 2018, Global Witness, a nonprofit watchdog dedicated to exposing corruption, published a report that described bonuses given to certain Liberian officials after they negotiated a deal with ExxonMobil Corporation for rights to oil fields off the Liberian coast. The report called for the Liberian government to investigate both the overall deal and the bonuses.

Two former Liberian officials implicated in the report filed a defamation suit against Global Witness in federal court in D.C. The court dismissed the case but denied Global Witness’s special motion to dismiss under the D.C. Anti-SLAPP Act, which allows courts to quickly dismiss frivolous lawsuits against free speech and award attorneys’ fees to the targets of such suits.

In Abbas v. Foreign Policy Group, the D.C. Circuit held that the D.C. Anti-SLAPP Act cannot apply in federal court because, as the D.C. Circuit interpreted the Anti-SLAPP Act, it conflicts with Federal Rule 12, governing motions to dismiss, and Rule 56, governing motions for summary judgment. But then in Competitive Enterprise Institute v. Mann, the D.C. Court of Appeals, which is the highest authority on the meaning of D.C. law, interpreted the Anti-SLAPP Act to hold that it uses the same substantive standard as Rule 56. The district court in this case held that despite the Mann decision, the Anti-SLAPP Act’s protections were still not available in federal court.

The Liberian officials appealed the dismissal of their case, and Global Witness cross-appealed the denial of the special motion to dismiss under the D.C. Anti-SLAPP Act. Both parties have filed briefs in the U.S. Court of Appeals for the D.C. Circuit.

Our Position: The appeals court should hold that the D.C. Anti-SLAPP Act applies in federal court.

  • The use of anti-SLAPP laws in federal court protects the exercise of First Amendment rights, including by members of the press. The D.C. Council’s intention when it passed the Act was to provide protection against frivolous lawsuits, and the news media require such protections to continue reporting on important matters of public concern without fear of retaliation.
  • The Act is substantive and does not conflict with the federal rules.

Quote: “Anti-SLAPP laws provide essential, substantive protections to speakers, including the news media. Plaintiffs should not be able to skirt these laws simply by filing suit in federal court. SLAPPs pose a serious threat to the exercise of First Amendment rights, and anti-SLAPP laws must apply in federal court if they are to be an effective defense.”

Related: Reporters Committee attorneys have filed many friend-of-the-court briefs in cases about whether anti-SLAPP acts apply in federal court, including in Tobinick v. Novella, Steinmetz v. Coyle, and Parekh v. CBS.

Most recently, attorneys for the Reporters Committee filed a brief in La Liberte v. Reid, a case involving MSNBC host Joy Reid. After a federal district court dismissed a defamation claim against the journalist and awarded her attorneys’ fees, the plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, arguing, among other things, that the motion-to-strike and fee-shifting provisions in California’s anti-SLAPP law do not apply in federal court. In their brief, Reporters Committee attorneys argued that Reid is entitled to recover attorneys’ fees under the California anti-SLAPP statute because the fee-shifting provision of the law applies in federal court.