In September, the District of Columbia Court of Appeals, D.C.’s highest court, issued a decision with troubling implications for the free press in the nation’s capital.
The case — Banks v. Hoffman — came about in the wake of an independent report commissioned by the American Psychological Association, which found that APA leadership colluded with the U.S. Department of Defense in the wake of 9/11 to facilitate the use of what the Bush administration called “enhanced” interrogation techniques. Three retired military psychologists referenced in the report sued the APA, Sidley Austin (the law firm that wrote the independent report), and David Hoffman (a partner at Sidley and the lead author of the report).
In response to the suit, the defendants in the case moved to dismiss under the D.C. Anti-SLAPP Act. The trial court granted that motion, but the D.C. Court of Appeals reversed. The Reporters Committee — joined by 24 media organizations — filed a friend-of-the-court brief last week urging all nine judges on the court to take up the case and reconsider.
First, a quick primer on anti-SLAPP: Thirty-three states and D.C. have some form of anti-SLAPP law, 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. D.C.’s anti-SLAPP law is particularly strong. It allows defendants that win an anti-SLAPP motion to recover attorney’s fees and costs and requires that the discovery process be put on pause while a court considers the anti-SLAPP motion.
But the D.C. Court of Appeals decision in Banks invalidated that discovery-stay provision. According to the ruling, that particular provision violated D.C.’s Home Rule Act, a local law requiring D.C. courts to abide by the Federal Rules of Civil Procedure, the rules that govern proceedings in federal courts.
As we explained in our friend-of-the-court brief, this “erroneous application of the Home Rule Act to the D.C. Anti-SLAPP Act is enormously consequential.” Without an automatic stay, the entire purpose of the law — to get rid of frivolous lawsuits intended to chill speech and drain the pockets of innocent defendants — is undermined. Defendants will be forced to endure the burdens and expense of discovery, including turning over documents, sitting for depositions, and enduring lots of meetings with lawyers (which, even we recognize, can be annoying).
And the panel decision did not stop there. It also invalidated the trial court’s ruling that the three retired military psychologists were public officials. (As we talked about in this explainer, public official plaintiffs are required to meet a higher bar to prove they were defamed.) Specifically, the appeals court told the trial court to reconsider the public official question based on whether the plaintiffs had some kind of special access to the media, which runs counter to U.S. Supreme Court precedent instructing lower courts making public official determinations about government employees to focus on their responsibility or authority, not their access to the media.
Finally, the panel decision asked the trial court to open up discovery on the issue of whether an email hyperlink was a republication for purposes of defamation law. As the Reporters Committee has written before, this is particularly concerning for news organizations who often use hyperlinks to refer back to past articles or provide readers with context.
All in all, this opinion gutted vital protections against meritless and abusive lawsuits. We hope that the rest of the court of appeals sees the problems we do and decides to reconsider. As always, we’ll keep you posted.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.