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D.C. high court allows immediate appeal of denial of anti-SLAPP motion

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  1. Libel and Privacy
The District of Columbia's high court ruled Thursday that denials of anti-SLAPP motions to quash are immediately appealable, reversing a…

The District of Columbia's high court ruled Thursday that denials of anti-SLAPP motions to quash are immediately appealable, reversing a lower court order that would have forced Wikipedia to disclose data revealing the identity of an anonymous poster to the company’s site.

The case started after Susan L. Burke, a prominent human-rights attorney, filed a lawsuit claiming several anonymous defendants conspired to defame her by making changes to a Wikipedia page devoted to her legal work. Burke requested Wikipedia’s user data in an attempt to uncover the posters’ true identities.

During her legal career, Burke has represented defendants in several high-profile cases – including a group of Iraqis who brought a civil lawsuit against the private military contracting company formerly known as Blackwater (now named Academi) after Blackwater employees shot Iraqi civilians in Baghdad in 2007. Burke asserts that the changes made to her Wikipedia page – which seemed to confuse her with prosecutors in a criminal case against Blackwater for the same shooting incident – were part of a Blackwater scheme designed to reduce her professional standing.

One of the pseudonymous posters, who operated under the alias “Zujua,” invoked D.C.’s newly enacted anti-SLAPP law in an attempt to quash the subpoena seeking his or her identity.

Anti-SLAPP laws are laws designed to permit the early dismissal of lawsuits over public controversies. In addition to containing a provision that enables defendants to dismiss meritless lawsuits, D.C.’s anti-SLAPP law contains a provision that enables a “person whose personal identifying information is sought” to protect his or her identity by moving to quash the subpoena.

The lower court declined to grant Zujua’s motion to quash the subpoena. The court found that the two requirements for granting such a motion were absent. Under the D.C. anti-SLAPP law, a motion to quash can only be granted if the person seeking to have the subpoena quashed can show he or she is engaged in a discussion of an “issue of public interest,” and if the court finds that the person requesting the subpoena is unlikely to succeed on the merits of his or her claim.

The D.C. Court of Appeals reversed the lower court’s denial. First, in a procedural decision, the court ruled that motions to quash subpoenas under the D.C. anti-SLAPP statute can be immediately appealed to higher courts. This is so even if the lower court has not issued a final ruling in a case. To decide otherwise, the court said, would substantially chill the “exercise of the statutorily protected right to anonymous speech” by revealing the anonymous poster’s identity.

Evaluating the merits of Zujua’s motion to quash, the court found Zujua’s Wikipedia posts addressed an issue of public interest because Burke, the subject of the posts, is a limited-purpose public figure. Although the court was careful not to deem all lawyers who represent clients as public figures, it found that “Burke went above and beyond simple legal representation in court pleadings and appearances.” The court specifically noted that Burke put out press releases and gave interviews regarding her representation of the Iraqis suing Blackwater.

The court also found that Burke would be unlikely to succeed on the merits of her defamation claim against Zujua. The court explained that, as a public figure, Burke would need to show Zujua made the updates to the Wikipedia page with “actual malice.” In other words, Burke would need to show Zujua published the allegedly defamatory Wikipedia posts knowing they were false or with reckless disregard for the truth, a standard the court said she would be unlikely to meet.

“Zujua’s edits do not suggest knowledge of falsity or reckless disregard for whether or not the statement was false," the court held. "If anything, the edits [on the Wikipedia page] seem to suggest confusion or honest mistake on Zujua’s part.”

Attorney Christopher J. Hajec, who represented Zujua in the suit, said the “decision strengthens the anti-SLAPP act by making these motions to quash immediately appealable.” He added: “It will be much harder now for public figures or others to bring in terrorem defamation suits [i.e., ones meant to threaten or intimidate] against anonymous speakers. That’s good for free discussion on the Internet.”

The Supreme Court has long protected anonymous speech under the First Amendment. In McIntyre v. Ohio, 514 U.S. 334 (1995), the Court described anonymous speech as “an honorable tradition of advocacy and of dissent.” It added, “Anonymity is a shield from the tyranny of the majority.”

The Reporters Committee for Freedom of the Press filed an amicus brief in support of Zujua, which was joined by several other media organizations.