Argued
November 25, 2014
Amended December 13, 2018 [*]
Appeals from the Superior Court of the District of Columbia
(CAB-8263-12) (Hon. Natalia M. Combs Greene, Trial Judge)
(Hon. Frederick H. Weisberg, Trial Judge)
Andrew
M. Grossman, with whom David B. Rivkin, Jr., and Mark I.
Bailen were on the brief, for appellants Competitive
Enterprise Institute and Rand Simberg.
Michael A. Carvin, with whom David M. Morrell and Anthony J.
Dick were on the brief, for appellant National Review, Inc.
John
B. Williams, with whom Peter J. Fontaine and Catherine Rosato
Reilly were on the brief, for appellee Michael E. Mann.
Ariel
B. Levinson-Waldman, Senior Counsel to the Attorney General,
with whom Irvin B. Nathan, Attorney General for the District
of Columbia at the time the brief was filed, and Todd S. Kim,
Solicitor General, were on the brief, for amicus curiae the
District of Columbia, in support of the court's appellate
jurisdiction to review interlocutory order.
Michael J. Songer and Daniel J. Kornstein were on the brief
for amicus curiae Mark Steyn, in support of the court's
appellate jurisdiction to review interlocutory order.
Ilya
Shapiro, Nicholas C. Dranias, Bradley A. Benbrook, and
Stephen M. Duvernay were on the briefs, in support of
appellants, for amici curiae The Cato Institute, Reason
Foundation, Individual Rights Foundation, and Goldwater
Institute.
Gregg
P. Leslie, Cynthia A. Gierhart, Seth D. Berlin, Shaina Jones
Ward, and Mara J. Gassmann were on the brief, in support of
appellants, for amici curiae The Reporters Committee for
Freedom of the Press; The American Civil Liberties Union of
the Nation's Capital; American Society of News Editors;
Association of Alternative Newsmedia; The Association of
American Publishers, Inc.; Bloomberg L.P.; The Center for
Investigative Reporting; First Amendment Coalition; First
Look Media, Inc.; Fox News Network, LLC; Gannett Co., Inc.;
The Investigative Reporting Workshop; The National Press
Club; National Press Photographers Association; NBCUniversal
Media, LLC; Newspaper Association of America; North Jersey
Media Group, Inc.; Online News Association; Radio Television
Digital News Association; The Seattle Times Company; Society
of Professional Journalists; Stephens Media LLC; Time Inc.;
Tribune Publishing; The Tully Center for Free Speech; D.C.
Communications, Inc., d/b/a Washington City Paper; and WP
Company LLC d/b/a The Washington Post.
David
A. Cortman, Kevin H. Theriot, Christopher Byrnes, and Kurt
Van Sciver were on the brief, in support of appellants, for
amicus curiae Alliance Defending Freedom.
Phillip C. Chang, Jonathan E. Buchan, E. Duncan Getchell, and
Amy Miller were on the brief, in support of appellants, for
amici curiae Newsmax Media, Inc.; Free Beacon, LLC; The
Foundation for Cultural Review; The Daily Caller, LLC; PJ
Media, LLC; and The Electronic Frontier Foundation.
Before
Beckwith and Easterly, Associate Judges, and Ruiz, Senior
Judge.
Ruiz,
Senior Judge
These
appeals present us with legal issues of first impression
concerning the special motion to dismiss created by the
District of Columbia's Anti-Strategic Lawsuits Against
Public Participation (Anti-SLAPP) Act, D.C. Code §§
16-5501 to -5505 (2012 Repl.): whether denial of a special
motion to dismiss is immediately appealable and the standard
applicable in considering the merits of an Anti-SLAPP special
motion to dismiss.
Appellee
Michael E. Mann is a well-known climate scientist whose
research in studying the "paleoclimate," or ancient
climate, has featured prominently in the politically charged
debate about climate change. Dr. Mann filed an action for
defamation and intentional infliction of emotional distress
against Competitive Enterprise Institute (CEI), Rand Simberg,
National Review, Inc. (National Review), and Mark Steyn based
on articles written by Mr. Simberg, Mr. Steyn, and National
Review's editor Rich Lowry that appeared on the websites
of CEI and National Review. Dr. Mann's complaint claimed
that the articles which criticized Dr. Mann's conclusions
about global warming and accused him of deception and
academic and scientific misconduct contained false statements
that injured his reputation and standing in the scientific
and academic communities of which he is a part.
Defendants
argued that Dr. Mann's lawsuit infringes on their First
Amendment right of free speech and moved for dismissal under
the Anti-SLAPP Act and, alternatively, under Superior Court
Rule 12 (b)(6). The trial court ruled that Dr. Mann's
claims were "likely to succeed on the merits" - the
standard established in the Anti-SLAPP Act to defeat a motion
to dismiss - and denied appellants' motions to dismiss
and their subsequent motions to reconsider. Appellants - CEI,
National Review and Mr. Simberg - sought interlocutory review
in this court of the trial court's denial of their
motions to dismiss.[1]
As a
preliminary matter, we hold that we have jurisdiction under
the collateral order doctrine to hear appellants'
interlocutory appeals of the trial court's denial of
their special motions to dismiss filed under the Anti-SLAPP
Act. We further hold that the Anti-SLAPP Act's
"likely to succeed" standard for overcoming a
properly filed special motion to dismiss requires that the
plaintiff present evidence - not simply allegations - and
that the evidence must be legally sufficient to permit a jury
properly instructed on the applicable constitutional
standards to reasonably find in the plaintiff's favor.
Having conducted an independent review of the evidence to
ensure that it surmounts the constitutionally required
threshold, we conclude that Dr. Mann has presented evidence
sufficient to defeat the special motions to dismiss as to
some of his claims.[2] Accordingly, we affirm in part, reverse in
part, and remand the case to the trial court for further
proceedings.
I.
Statement of the Case
A.
Factual Background
The
facts presented in the complaint and subsequent pleadings
filed with the court are as follows. Dr. Mann is a graduate
of the University of California at Berkeley (B.S. Physics and
Applied Math) and Yale University (M.S. Physics; Ph.D.
Geology and Geophysics), and has held faculty positions at
the University of Massachusetts's Department of
Geosciences and the University of Virginia's Department
of Environmental Sciences. He is a Distinguished Professor of
Meteorology and the Director of the Earth System Science
Center at Pennsylvania State University (Penn
State).[3] Dr. Mann is considered an authority on
climate change science, and has been recognized with honors
and awards for his work identifying global warming and its
cause.
In 1998
and 1999, Dr. Mann and two colleagues[4] co-authored two scientific
papers, the first of which was published in the international
scientific journal Nature and the second of which
was published in Geophysical Research Letters, that
reported the results from a statistical study of the
Earth's temperatures over several centuries. Their 1998
study used a technique to reconstruct temperatures from time
periods before the widespread use of thermometers in the
1960s by using "proxy indicators" (described by Dr.
Mann as "growth rings of ancient trees and corals,
sediment cores from ocean and lake bottoms, ice cores from
glaciers, and cave sediment cores"). The data showed
that global mean annual temperatures have been rising since
the early twentieth century, with a marked increase in the
last fifty years. The papers concluded that this rise in
temperature was "likely unprecedented in at least the
past millennium" and correlated with higher
concentrations of carbon dioxide in the atmosphere emitted by
the combustion of fossil fuels.
The
1999 paper included a graph depicting global temperatures in
the Northern Hemisphere for a millennium, from approximately
1050 through 2000. The graphical pattern is roughly
horizontal for 90% of the temperature axis - reflecting a
slight, long-term cooling period between 1050 and 1900 -
followed by a sharp increase in temperature in the twentieth
century. Because of its shape resembling the long shaft and
shorter diagonal blade of a hockey stick, this graph became
known as the "hockey stick."[5] The hockey stick
graph became the foundation for the conclusion that the sharp
increase in temperature starting in the twentieth century was
anthropogenic, or caused by concentrations of CO2 in the
atmosphere generated by human activity initiated by the
industrial age. The hockey stick graph also became a rallying
point, and a target, in the subsequent debate over the
existence and cause of global warming and what, if anything,
should be done about it.
In
2001, the Intergovernmental Panel on Climate Change (IPCC),
[6] in
its Third Assessment Report, summarized the study and data
that led to the hockey stick graph and featured several of
the studies that replicated its data. In 2003 and 2005,
mining consultant Stephen McIntyre and Professor Ross
McKitrick[7]published articles claiming to demonstrate
that the hockey stick graph was the result of bad data and
flawed statistical analysis. That same year, in a study
commissioned by two U.S. Congressmen, Professor Edward
Wegman[8] concluded that Dr. Mann's statistical
methodology was flawed. That same year, the National Research
Council of the National Academies of Science, in a study
commissioned by the U.S. House of Representatives, raised
questions about the reliability of temperature
reconstructions prior to 1600, but agreed substantively with
the conclusions represented by the hockey stick graph.
Follow-up, peer-reviewed studies published in the literature
have independently validated conclusions illustrated by the
hockey stick graph.
In
November 2009, thousands of emails from the Climate Research
Unit (CRU) of the University of East Anglia in the United
Kingdom - some between Dr. Mann and CRU climate scientists -
were somehow obtained and anonymously published on the
Internet, shortly before the U.N. Global Climate Change
Conference was to begin in Copenhagen in December 2009. In a
controversy dubbed "Climategate," some of these
emails were cited as proof that climate scientists, including
Dr. Mann, falsified or manipulated their data, in collusion
with government officials, to produce the hockey stick
result. The emails led to public questioning of the validity
of the research leading to the hockey stick graph and to
calls for evaluation of the soundness of its statistical
analysis and the conduct of the scientists involved in the
research, including, specifically, Dr. Mann.
Following
disclosure of the emails and the questions raised, Penn
State, the University of East Anglia, and five governmental
agencies - the U.K. House of Commons Science and Technology
Committee, the U.K. Secretary of State for Energy and Climate
Change, the Inspector General of the U.S. Department of
Commerce, the U.S. Environmental Protection Agency, and the
U.S. National Science Foundation - issued reports after
conducting inquiries into the validity of the methodology and
research underlying the hockey stick graph and investigating
the allegations impugning the integrity of Dr. Mann's and
other climate scientists' conduct. The inquiries that
considered the science largely validated the methodology
underlying the hockey stick graph. None of the investigations
found any evidence of fraud, falsification, manipulation, or
misconduct on the part of Dr. Mann.[9] These reports were published
in 2010 and 2011.
On July
13, 2012, Mr. Simberg authored an article entitled "The
Other Scandal in Unhappy Valley," which was published on
OpenMarket.org, an online blog of CEI. Comparing
"Climategate" with the then-front-page news of the
Penn State sexual abuse scandal involving Jerry Sandusky that
had been revealed in the Freeh Report, [10] Mr. Simberg
wrote:
So it turns out that Penn State has covered up wrongdoing by
one of its employees to avoid bad publicity.
But I'm not talking about the appalling behavior
uncovered this week by the Freeh report. No, I'm
referring to another cover up and whitewash that occurred
there two years ago, before we learned how rotten and corrupt
the culture at the university was. But now that we know how
bad it was, perhaps it's time that we revisit the Michael
Mann affair, particularly given how much we've also
learned about his and others' hockey-stick deceptions
since. Mann could be said to be the Jerry Sandusky of climate
science, except for instead of molesting children, he has
molested and tortured data in service of politicized science
that could have dire consequences for the nation and planet.
. . .[11]
[M]any . . . luminaries of the "climate science"
community were shown to have been behaving in a most
unscientific manner. Among them were Michael Mann, Professor
of Meteorology at Penn State, whom the emails revealed had
been engaging in data manipulation to keep the blade on his
famous hockey-stick graph, which had become an icon for those
determined to reduce human carbon emissions by any means
necessary. . . .
Mann has become the posterboy of the corrupt and disgraced
climate science echo chamber. No university whitewash
investigation will change that simple reality. . . .
Michael Mann, like Joe Paterno, was a rock star in the
context of Penn State University, bringing in millions in
research funding. The same university president who resigned
in the wake of the Sandusky scandal was also the president
when Mann was being whitewashed
investigated. We saw what the university administration was
willing to do to cover up heinous crimes, and even let them
continue, rather than expose them. Should we suppose, in
light of what we now know, they would do any less to hide
academic and scientific misconduct, with so much at stake?
It's time for a fresh, truly independent investigation.
(strike-through in original).
On July
15, 2012, Mr. Steyn authored an article titled "Football
and Hockey," which appeared on National
Review's online blog "The Corner." In his
article, Mr. Steyn quoted from Mr. Simberg's July 13
article:
I'm referring to another cover up and whitewash that
occurred [at Penn State] two years ago, before we learned how
rotten and corrupt the culture at the university was. But now
that we know how bad it was, perhaps it's time that we
revisit the Michael Mann affair, particularly given how much
we've also learned about his and others' hockey-stick
deceptions since. Mann could be said to be the Jerry Sandusky
of climate science, except that instead of molesting
children, he has molested and tortured data in service of
politicized science that could have dire consequences for the
nation and planet.
Mr. Steyn then added:
Not sure I'd have extended that metaphor all the way into
the locker-room showers with quite the zeal Mr. Simberg does,
but he has a point. Michael Mann was the man behind the
fraudulent climate-change "hockey-stick" graph, the
very ringmaster of the tree-ring circus. And, when the East
Anglia emails came out, Penn State felt obliged to
"investigate" Professor Mann. Graham Spanier, the
Penn State president forced to resign over Sandusky, was the
same [one] who investigated Mann. And, as with Sandusky and
Paterno, the college declined to find one of its star names
guilty of any wrongdoing.
If an institution is prepared to cover up systematic
statutory rape of minors, what won't it cover up? Whether
or not he's "the Jerry Sandusky of climate
change", [sic] he remains the Michael Mann of climate
change, in part because his "investigation" by a
deeply corrupt administration was a joke.
Dr.
Mann's counsel wrote to appellants requesting an apology
and retraction of the statements, and threatening litigation
if the articles were not removed from their respective
websites. The letter stated that the allegations of data
manipulation and misconduct were false, and pointed to the
investigations that had concluded Dr. Mann had not engaged in
wrongdoing or manipulated data in a deceptive manner. No
apology was forthcoming, nor were the posted statements
withdrawn. Instead, on August 22, 2012, Mr. Lowry wrote an
editorial on National Review's website titled
"Get Lost" that referred to "Michael Mann of
Climategate infamy," characterized his threatened
litigation as "a nuisance lawsuit," and included a
link to National Review's lawyer's response rejecting
Dr. Mann's counsel's request for a retraction. Mr.
Lowry explained that "[i]n common polemical usage,
'fraudulent' doesn't mean honest-to-goodness
criminal fraud. It means intellectually bogus and
wrong." The editorial concluded: "[Dr. Mann is]
going to go to great trouble and expense to embark on a
losing cause that will expose more of his methods and
maneuverings to the world. In short, he risks making an ass
of himself. But that hasn't stopped him before." The
underlying lawsuit followed.
B.
Trial Court Proceedings
Dr.
Mann filed his initial complaint on October 22, 2012,
alleging libel and intentional infliction of emotional
distress based on appellants' statements accusing him of
improperly manipulating data to reach a preordained
conclusion, deception, fraud, and misconduct. Appellants
filed special motions to dismiss the complaint pursuant to
the D.C. Anti-SLAPP Act and motions to dismiss for failure to
state a claim under Superior Court Rule 12 (b)(6). Dr. Mann
opposed the motions. On July 19, 2013, Judge Natalia Combs
Greene denied the motions. She determined that the subject of
appellants' challenged statements brought them within the
ambit of the Anti-SLAPP Act, but that Dr. Mann had made the
required showing under the Act to defeat the special motions
to dismiss. First, the trial court interpreted the
"likely to succeed" standard in the Act as
substantively similar to the standard for prevailing on a
motion for summary judgment or motion for judgment as a
matter of law. Second, the trial court concluded that Dr.
Mann met this burden by making a prima facie showing that
appellants' statements were defamatory and not sheltered
by the fair comment privilege, and by providing sufficient
evidence for the court to find that "discovery may
uncover" that appellants acted with actual malice.
Third, the trial court determined that Dr. Mann also made the
requisite showing of malicious and outrageous conduct to
support his claim of intentional infliction of emotional
distress. Finally, the trial court determined that the
complaint stated a claim, and thus survived a Rule 12 (b) (6)
evaluation.
Appellants
asked the trial court to vacate the denials of their motions
to dismiss and, after the trial court denied this request,
appellants moved for certification of the trial court's
orders for interlocutory appeal. The trial court denied the
motions for certification. Appellants then appealed to this
court, which issued an order to show cause as to why the
appeals should not be dismissed for lack of jurisdiction as
having been taken from non-appealable orders. On December 19,
2013, these appeals were dismissed as moot because Dr. Mann
filed an amended complaint on June 28, 2013.
The
amended complaint is substantially the same as the original
complaint, with the addition of one count of libel based on
the comment comparing Dr. Mann to Jerry Sandusky, which, in
the original complaint, supported only the intentional
infliction of emotional distress claim. Appellants renewed
their motions to dismiss, and Dr. Mann opposed them. On
January 22, 2014, Judge Frederick Weisberg denied the
motions, reasoning that Judge Combs Greene's order
denying the original motions to dismiss was the law of the
case, and adding an analysis of the new defamation count.
Appellants again filed motions seeking vacatur of the denial
of their motions to dismiss and certification for
interlocutory appeal, which were, again, denied by the trial
court.
Appellants
filed notices of appeal to this court, and Dr. Mann moved to
dismiss the appeals on the ground that they seek review of
non-final orders that are not immediately appealable, or, in
the alternative, to expedite the appeal. The court ordered
appellants to show cause as to why the court has jurisdiction
to hear these interlocutory appeals. Appellants filed a
response, as did Dr. Mann. The court ultimately reserved the
jurisdiction question, expedited the appeal, and ordered the
parties to file briefs addressing the court's
jurisdiction as well as the merits. The District of Columbia
and non-appealing defendant Mr. Steyn filed a brief as amicus
curiae in favor of the court's jurisdiction to hear the
interlocutory order on appeal.[12] Several organizations filed
briefs as amici curiae in support of appellants. We now
address all issues.
II.
SLAPP Actions and the D.C. Anti-SLAPP Act
A
"SLAPP" (strategic lawsuit against public
participation) is an action "filed by one side of a
political or public policy debate aimed to punish or prevent
the expression of opposing points of view." Council of
the District of Columbia, Report of Committee on Public
Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010)
(hereinafter Report on Bill 18-893). Thus, the goal of a
SLAPP "is not to win the lawsuit but to punish the
opponent and intimidate them into silence." Id.
at 4 (citing George W. Pring, SLAPPs: Strategic Lawsuits
Against Public Participation, 7 Pace Envtl. L. Rev. 3,
3, 9-11 (1989)). Enacted in 2012, the D.C. Anti-SLAPP Act was
designed to protect targets of such meritless lawsuits by
creating "substantive rights with regard to a
defendant's ability to fend off" a SLAPP. Report on
Bill 18-893, at 1. The rights created by the Act comprise a
special motion to dismiss a complaint, D.C. Code §
16-5502, and a special motion to quash discovery orders,
requests for information, or subpoenas for personal
identifying information in suspected SLAPPs, D.C. Code §
16-5503. This court has interpreted and applied the
Anti-SLAPP Act with respect to the provisions concerning the
special motion to quash a subpoena, see Doe v. Burke
(Burke I), 91 A.3d 1031 (D.C. 2014), and the award
of attorney's fees in connection with such a motion,
see Doe v. Burke (Burke II), 133 A.3d 569
(D.C. 2016). This is the first case presented on appeal that
raises the proper interpretation and application of the
Act's special motion to dismiss.
Under
the District's Anti-SLAPP Act, the party filing a special
motion to dismiss must first show entitlement to the
protections of the Act by "mak[ing] a prima facie
showing that the claim at issue arises from an act in
furtherance of the right of advocacy on issues of public
interest." D.C. Code § 16-5502 (b). Once that prima
facie showing is made, the burden shifts to the nonmoving
party, usually the plaintiff, [13] who must "demonstrate[]
that the claim is likely to succeed on the merits."
Id. If the plaintiff cannot meet that burden, the
motion to dismiss must be granted, and the litigation is
brought to a speedy end. Id. In this case, the
parties agree that appellants made the requisite prima facie
showing that the Act applies because the lawsuit is based on
articles that appeared on CEI's and National Review's
websites that concern the debate over the existence and
causes of global warming. See D.C. Code §
16-5501 (1) (defining "[a]ct in furtherance of the right
of advocacy on issues of public interest" to include
"[a]ny written or oral statement made . . . [i]n a place
open to the public or a public forum in connection with an
issue of public interest . . . ."); D.C. Code §
16-5501 (3) ("'Issue of public interest' means
an issue related to health or safety; environmental,
economic, or community well-being; the District government; a
public figure; or a good, product, or service in the market
place."). What is contested in this appeal is whether
Dr. Mann met his burden of demonstrating that he is
"likely to succeed on the merits" of his claims for
defamation and intentional infliction of emotional distress.
If he has, appellants' special motions to dismiss were
properly denied, and the litigation continues. If he has not,
the motions should have been granted, and the litigation
would be terminated. But we must decide first whether this
court has jurisdiction to decide that question at this stage
of the litigation.
III.
Jurisdiction
Denial
of a special motion to dismiss filed under the Anti-SLAPP Act
does not end the litigation and is not a final order. To the
contrary, it signals that the litigation will
continue.[14] Nor is it one of the types of
interlocutory orders specified by statute over which this
court has jurisdiction. See D.C. Code § 11-721
(a)(2)-(3) (2012 Repl.). The denial of a motion to dismiss
filed under Rule 12 (b)(6) is not usually immediately
appealable. See McNair Builders, Inc. v. Taylor, 3
A.3d 1132, 1135 (D.C. 2010). Thus, we must decide, in the
first instance, whether the denial of a special motion to
dismiss filed pursuant to D.C. Code § 16-5502 belongs to
that "small class" of non-final orders that may be
appealed under the collateral order doctrine established by
the Supreme Court in Cohen v. Beneficial Industrial Loan
Corp., because it is "too important to be denied
review and too independent of the cause itself to require
that appellate consideration be deferred until the whole case
is adjudicated." 337 U.S. 541, 546 (1949).
The
test for application of the collateral order doctrine is
"stringent." McNair Builders, 3 A.3d at
1136 (quoting Will v. Hallock, 546 U.S. 345, 349-50
(2006)). For an order to qualify for interlocutory review
under the doctrine, "(1) it must conclusively determine
a disputed question of law, (2) it must resolve an important
issue that is separate from the merits of the case, and (3)
it must be effectively unreviewable on appeal from a final
judgment." Id. at 1135-36 (quoting, and
overruling on other grounds, Finkelstein,
Thompson & Loughran v. Hemispherx Biopharma,
Inc., 774 A.2d 332, 339-40 (D.C. 2001)).
"Effective" unreviewability encompasses the notion
that the matter at stake concerns an issue of
"substantial public interest." Id. at
1137. We conclude that these criteria are met where a special
motion to dismiss filed under the Anti-SLAPP Act is denied as
they are in the case of denial of a special motion to quash
filed under the Act. See Burke I, 91 A.3d at 1038
("[The] determination that an order is appealable under
[these criteria] is 'not directed at the individual case,
but to the entire category to which a claim
belongs.'") (quoting McNair Builders, 3
A.3d at 1140 n.9)).[15]
A.
Conclusivity
First,
a trial court's order denying a special motion to dismiss
under the Anti-SLAPP Act "conclusively determine[s] a
disputed question of law," McNair Builders, 3
A.3d at 1135: whether the movant is entitled to dismissal
under the Act. In analyzing whether the denial of a special
motion to quash under the Act is immediately appealable, the
Burke I court concluded that the "conclusivity
element" of the collateral order doctrine is
"satisfied when a trial court has determined the movant
is ineligible for protection under the [Anti-SLAPP]
statute." 91 A.3d at 1038 (quoting Godin v.
Schencks, 629 F.3d 79, 84 (1st Cir.
2010)).[16] Here, appellants have received some
measure of protection under the Act by having their motions
to dismiss evaluated under the special provisions of the Act
created to deter SLAPPs. The application of the Act does not
mean, however, that there is no "disputed question of
law" for purposes of the collateral order doctrine.
There remains the specific disputed legal question of whether
the movant is entitled to the Act's ultimate protection:
mandatory dismissal of the lawsuit at an early point in the
litigation. That is an issue a trial court conclusively
determines when it rules on a special motion to dismiss.
Therefore, denial of a special motion to dismiss satisfies
the "conclusivity element" of the collateral order
doctrine.
B.
Separability
Second,
a trial court's order denying a special motion to dismiss
"resolve[s] an important issue that is separate from the
merits of the case." McNair Builders, 3 A.3d at
1135. The issue in the case of a special motion to dismiss,
once the threshold prima facie case has been met by the
movant, is whether the movant has a statutory right to be
free of the burdens of defending the litigation. Resolution
of both issues - whether the claim arises from acts protected
by the Act and whether the movant is entitled to dismissal -
will involve some of the same facts relevant to the merits of
the claim. That commonality, however, does not necessarily
preclude interlocutory review of the denial of an Anti-SLAPP
special motion to dismiss.
An
analogy to qualified immunity is apt. "[I]t follows from
the recognition that qualified immunity is in part an
entitlement not to be forced to litigate the consequences of
official conduct that a claim of immunity is conceptually
distinct from the merits of the plaintiff's claim that
his rights have been violated." Mitchell v.
Forsyth, 472 U.S. 511, 527-28 (1985). The special motion
to dismiss created by the Anti-SLAPP Act "explicitly
protects the right not to stand trial" in a SLAPP, which
is intended as a "weapon to chill or silence
speech." Burke I, 91 A.3d at 1033, 1039;
see Report on Bill 18-893, at 4 (referring to
"other jurisdictions, which have similarly extended
absolute or qualified immunity for individuals engaging in
protected actions"). This statutory right is analogous
to qualified immunity for official conduct in that its
application depends on the court's resolution of whether
the acts complained of entitle the defendant not to stand
trial "under certain circumstances."
Mitchell, 472 U.S. at 525. In this case we interpret
the statutory standard ("likely to succeed on the
merits") for determining special motions under the Act
and, as discussed infra, conclude that the court
must decide, as a matter of law, whether the plaintiff has
produced (usually without the benefit of discovery)
sufficient evidence to prevail on the claim. In other words,
the circumstance under which the Anti-SLAPP Act creates
immunity from trial is a meritless SLAPP. As we stated in
Burke I, this "resolves a question separate
from the merits in that it merely finds that such merits may
exist, without evaluating whether the plaintiff's claim
will succeed." 91 A.3d at 1039 (quoting Batzel v.
Smith, 333 F.3d 1018, 1025 (9th Cir.
2003)).[17]
We
readily acknowledge that this inquiry is not completely
separable from the merits, but it need not be where it serves
a different purpose. See Henry v. Lake Charles Am.
Press, 566 F.3d 164, 175 (5th Cir. 2009) (noting that
purpose of Anti-SLAPP special motions is "distinct from
[the purpose] of the underlying suit"). As the Supreme
Court has recognized, "although sometimes practically
intertwined with the merits, a claim of immunity nonetheless
raises a question that is significantly different from the
questions underlying plaintiff's claim on the merits
(i.e., in the absence of qualified
immunity)." Johnson v. United States, 515 U.S.
304, 314 (1995). As is the case with qualified immunity, the
issue that the court must resolve in deciding a special
motion to dismiss under the Anti-SLAPP Act is whether the
defendant is entitled to immunity from trial, a question of
law that involves the evaluation of the complained-of conduct
against established legal standards. Cf. Behrens
v. Pelletier, 516 U.S. 299, 313 (1996) (holding that
court's denial of qualified immunity separate and
immediately appealable because it "necessarily
determined that certain conduct attributed to [defendant]
(which was controverted) constituted a violation of clearly
established law").[18] Consequently, even though a
court's determination involves consideration of evidence
produced in support of the merits, in view of the purpose of
the D.C. Anti-SLAPP Act to provide immunity from suit, a
court's denial of a special motion to dismiss resolves an
issue of law at the threshold of litigation - whether the
defendant is entitled to immunity from trial - that is
sufficiently separate from the ultimate question on the
merits of the case decided at trial - whether the defendant
is liable. See Henry, 566 F.3d at 175 (noting that
Anti-SLAPP motion is "separate[] from the merits of the
claim itself" because its purpose is to determine
'"whether the defendant is being forced to defend a
meritless claim,' not to determine whether the defendant
actually committed the relevant tort" (quoting
Batzel, 333 F.3d at 1025)).[19]
C.
Unreviewability
Third,
a trial court's denial of a special motion to dismiss is
"effectively unreviewable on appeal from a final
judgment." McNair Builders, 3 A.3d at 1135
(quoting Finkelstein, Thompson &
Loughram, 774 A.2d at 339-40). Denial of immunity
from trial is the quintessential unreviewable order because
the core of immunity from suit "is its possessor's
entitlement not to have to answer for his conduct in a civil
damages action." Id. at 1137 (quoting
Mitchell, 472 U.S. at 525). The D.C. Anti-SLAPP Act
provides not only immunity from having to stand trial but
also protection from "expensive and time consuming
discovery that is often used in a SLAPP as a means to prevent
or punish" by "toll[ing] discovery while the
special motion to dismiss is pending." Report on Bill
18-893, at 4. Consequently, the denial of a special motion to
dismiss filed under the Act - a denial of the immunity from
suit and pretrial burdens afforded by the statute - is the
type of unreviewable order that falls squarely within the
collateral order doctrine. Accord Henry, 566 F.3d at
178 (holding that denial of Anti-SLAPP motion to dismiss
satisfies the third requirement of the collateral order
doctrine because its purpose is to "provide[] a right
not to stand trial"); see also Behrens, 516
U.S. at 308 (noting that the scope of protection afforded by
qualified immunity, which includes the right to not stand
trial and to avoid the burdens of pretrial matters, such as
discovery, made denial of immunity claim immediately
appealable).
D.
Substantial Public Interest
Finally,
and of particular importance in conducting a Cohen
analysis, we conclude that because the denial of a special
motion to dismiss implicates a "substantial public
interest," it would be effectively unreviewable on
appeal from a final judgment. McNair Builders, 3
A.3d at 1136. The purpose of the special motion to dismiss is
to protect a "particular value of a high order" -
the right to free speech guaranteed by the First Amendment -
by shielding defendants from meritless litigation that might
chill advocacy on issues of public interest. Will,
546 U.S. at 352 (citing cases involving separation of powers,
states' dignitary interests under the Eleventh Amendment,
and double jeopardy bar of the Fifth Amendment); cf.
McNair Builders, 3 A.3d at 1141 (holding that
contractor's asserted immunity under judicial proceedings
privilege did not implicate a substantial public interest
warranting interlocutory review). The legislative history of
the Anti-SLAPP Act confirms that the legislature thought the
denial of the Act's protection merited immediate
appellate review. The original Anti-SLAPP bill presented to
the Council of the District of Columbia included a provision
for the interlocutory appeal of the denial of a special
motion to dismiss or quash. This provision was excluded from
the final version of the bill following this court's
decision in Stuart v. Walker, 6 A.3d 1215 (D.C.
2010), vacated, 30 A.3d 783 (D.C. 2011) (Mem.).,
which held that a similar provision affecting the
jurisdiction of the court is beyond the scope of the
Council's authority. Report on Bill 18-893, at 7. The
Council's evident intent and preference to include an
interlocutory review provision - regardless of whether it had
the authority to do so - is a significant indicator of its
belief that "some particular value of a high
order," Will, 546 U.S. at 352, is at issue that
should be addressed by the court on appeal without waiting
for completion of the litigation. See Henry, 566
F.3d at 181 (concluding that where statute "embodies a
legislative determination that parties should be immune from
certain abusive tort claims that have the purpose or effect
of imperiling First Amendment rights, 'there is little
room for the judiciary to gainsay its
"importance"'" (quoting Digital Equip.
v. Desktop Direct, 511 U.S. 863, 879 (1994))); cf.
Englert v. MacDonnell, 551 F.3d 1099, 1105-06 (9th Cir.
2009) (holding that denial of special motion to strike under
Oregon's anti-SLAPP statute was not immediately
appealable where Oregon statute did not provide for immediate
appellate review of such order).
We
conclude that denial of Anti-SLAPP special motions to dismiss
meet the requirements of conclusivity, separability, and
effective unreviewability established in Cohen, as
further refined in Will, and is immediately
appealable to this court. We come to this conclusion in light
of the District of Columbia Anti-SLAPP Act's purpose to
create a substantive right not to stand trial and to avoid
the burdens and costs of pre-trial procedures, a right that
would be lost if a special motion to dismiss is denied and
the case proceeds to discovery and trial; our interpretation
of the Act as requiring a judicial determination applying
established principles of law in deciding a special motion to
dismiss; and, most especially, the public interest in
safeguarding important First Amendment rights in an
expeditious manner as shown by the Council's evident
desire to make denials of such motions, which must be filed
and decided in the early stage of litigation, immediately
appealable. See Henry, 566 F.3d at 176-78 (noting
that a ruling on a special motion to dismiss under the
Louisiana Anti-SLAPP statute meets every prong of the
collateral order doctrine because the statute provides a
right not to stand trial and bear the costs of defending a
meritless defamation claim that can chill important First
Amendment rights by gauging plaintiff's probability of
success); Batzel, 333 F.3d at 1025-26 (holding that
denial of special motion to dismiss under California
Anti-SLAPP Act met Cohen standards because it
created a substantive immunity from suit and provided for
immediate right of appeal).
As we
have determined that we have jurisdiction, we have two
further questions to address: (1) what is meant by the
Act's language requiring the plaintiff to
"demonstrate[] that the claim is likely to succeed on
the merits," and (2) whether Dr. Mann has met this
standard in the present case.
IV.
The Anti-SLAPP Act's "Likely to Succeed on the
Merits" Standard for Special Motions to Dismiss
The
Anti-SLAPP Act's special motion to dismiss creates a
burden-shifting procedure that is triggered by the party
seeking to invoke the special protections afforded by the
Act. See D.C. Code § 16-5502.[20] The moving
party (usually the defendant)[21] files a special motion to
dismiss within forty-five days after service of the
complaint. Id. § 16-5502 (a). Filing of the
motion stays discovery, unless the court grants a limited
exception for discovery targeted to defeating the motion.
Id. § 16-5502 (c). If the moving party makes a
"prima facie showing" that the claim "arises
from an act in furtherance of the right of advocacy on issues
of public interest," the burden shifts to the party
opposing the motion to "demonstrate[] that the claim is
likely to succeed on the merits." Id. §
16-5502 (b) & (d). The court is required to hold an
"expedited hearing" on the motion and to issue a
ruling "as soon as practicable after the hearing."
Id. § 16-5502 (d). If the plaintiff's
opposition fails to meet the statutory standard, the Act
requires the trial court to dismiss the complaint, with
prejudice. Id. § 16-5502 (b) & (d). If the
opposition is successful, the motion to dismiss is denied,
id., and the litigation proceeds in the normal
course.
For the
reasons that follow, we conclude that in considering a
special motion to dismiss, the court evaluates the likely
success of the claim by asking whether a jury properly
instructed on the applicable legal and constitutional
standards could reasonably find that the claim is supported
in light of the evidence that has been produced or proffered
in connection with the motion. This standard achieves the
Anti-SLAPP Act's goal of weeding out meritless litigation
by ensuring early judicial review of the legal sufficiency of
the evidence, consistent with First Amendment principles,
while preserving the claimant's constitutional right to a
jury trial.
We
review questions of statutory interpretation de novo.
Burke I, 91 A.3d at 1040.[22] Our analysis begins with
the language of the statute, see District of Columbia v.
Place, 892 A.2d 1108, 1111 (D.C. 2006), which requires
that to prevail in opposing a special motion to dismiss, the
opponent must "demonstrate[] that the claim is likely to
succeed on the merits." D.C. Code § 16-5502 (b). As
neither the phrase nor any of its components is defined in
the statute, we look to "the language of the statute by
itself to see if the language is plain and admits of no more
than one meaning." Rodriguez v. District of
Columbia, 124 A.3d 134, 146 (D.C. 2015) (quoting
Dobyns v. United States, 30 A.3d 155, 159 (D.C.
2011)). Although we can be confident that "on the
merits" refers to success on the substance of the claim,
[23]
the meaning of the requirement that the opponent
"demonstrate[] that the claim is likely to succeed"
is more elusive. Use of the word
"demonstrate"[24] indicates that once the burden has
shifted to the claimant, the statute requires more than mere
reliance on allegations in the complaint, and mandates the
production or proffer of evidence that supports the claim.
This interpretation is supported by another provision in the
Act, § 16-5502 (c), that stays discovery upon the filing
of a special motion to dismiss "until the motion has
been disposed of," unless it "appears likely that
targeted discovery will enable the plaintiff to defeat the
motion and that the discovery will not be unduly
burdensome." If evidence were not required to
successfully oppose a special motion to dismiss under §
16-5502 (b), there would be no need for a provision allowing
targeted discovery for that purpose.[25] Moreover, unless
something more than argument based on the allegations in the
complaint is required, the special motion to dismiss created
by the Act would be redundant in light of the general
availability, in all civil proceedings regardless of the
nature of the claim, of motions to dismiss under Rule 12
(b)(6).
But
what does it mean that the evidence must demonstrate that the
claim is "likely to succeed"? In common parlance,
the term "likely" connotes a predictive quality,
and its dictionary definition is
"probable."[26] The phrase conveys an assessment of
the claimant's chance of success, but does not inherently
provide the exact measure by which such an assessment is to
be made. It could be argued that "likely to
succeed" is different from and a lesser standard than
"more likely than not to succeed," the phrase
routinely used to mean a preponderance of the evidence, and
that if the legislature had in mind a preponderance of the
evidence standard, it would have used that well-known term of
art. See Haley v. United States, 799 A.2d 1201, 1209
n.6 (D.C. 2002) ("The preponderance of the evidence
standard requires proof that something more likely than not
exists or occurred."). On the other hand, it seems
counterintuitive to say that a claim is "likely to
succeed" if it has a less than 50% chance of prevailing.
In short, the statutory language's dictionary meaning,
even if good enough for common parlance, leaves us in doubt
as to its proper interpretation in the Anti-SLAPP Act.
Appellants
argue that we should look to a similar phrase, "a
likelihood of success on the merits," that is used to
evaluate requests for temporary stays and preliminary
injunctions. In that context, "a likelihood of
success" has been defined to mean a "substantial
likelihood" though not a "mathematical
probability," Ortberg v. Goldman Sachs Grp., 64
A.3d 158, 162 (D.C. 2013) (quoting In re Estate of
Reilly, 933 A.3d 830, 837 (D.C. 2007)), and does not
express a fixed measurement, [27] as it is part of a multi-factor test
where a stronger showing on some factors can compensate for a
weaker showing on others.[28] The phrase "a likelihood of
success" is similar (though not identical) on its face
to the phrase "likely to succeed," and in both the
preliminary injunction context and under the Anti-SLAPP Act,
the judicial role involves prediction of ultimate success on
the merits. The two terms should not automatically be
equated, however, because of the different purpose and impact
of the court's ruling in the two contexts. In granting a
request for preliminary injunction, the court grants
temporary relief to a movant who makes some showing of
likelihood of success that is weighed, along with other
factors such as irreparable harm, to preserve the status quo
pending the final outcome of litigation. See Nken,
556 U.S. at 434 (noting that preliminary injunctions and
stays similarly concern whether court order "may allow
or disallow anticipated action before the legality of that
action has been conclusively determined"). Under the
Anti-SLAPP Act, on the other hand, the result of the
court's ruling in favor of the moving party means
complete and final victory for that party by bringing the
litigation to an end, avoiding a resolution by trial. Because
it is a variable standard that is used for a different
purpose, "a likelihood of success," the term used
in deciding requests for preliminary injunctions and stays,
does not determine the proper interpretation of the
"likely to succeed" standard for deciding special
motions to dismiss under the Anti-SLAPP Act.
Lacking
a statutory definition, clear dictionary definition, or
application as a term of art that reasonably can be borrowed
from another legal context, the Anti-SLAPP Act's
"likely to succeed on the merits" leaves us with
"textual uncertainty." Cass v. District of
Columbia, 829 A.2d 480, 486 (D.C. 2003). Our task,
therefore, is to interpret the ambiguous term in a manner
"that makes sense of the statute as a whole" by
reference to legislative history and other aids to
construction, such as applicable canons of statutory
interpretation. District of Columbia v. Reid, 104
A.3d 859, 868 (D.C. 2014) (quoting Cass, 829 A.2d at
482).
We
begin with what the legislature said it was trying to
accomplish: to deter SLAPPs by "extend[ing] substantive
rights to defendants in a SLAPP, providing them with the
ability to file a special motion to dismiss that must be
heard expeditiously by the court." Report on Bill
18-893, at 4. The special motion to dismiss is a mechanism by
which a SLAPP defendant can "expeditiously and
economically dispense of litigation" to alleviate the
burdens and cost of defending against a suit that is filed,
not to succeed, but to "prevent or punish" the
defendant's speech or advocacy. Id. To this end,
a special motion to dismiss must be filed and decided in the
early stage of litigation. D.C. Code § 16-5502 (a). If
the trial court determines that the plaintiff has not met the
statutory burden, the special motion to dismiss must be
granted "with prejudice." Id. §
16-5502 (b) & (d). In short, the special motion to
dismiss provision authorizes final disposition of a claim in
a truncated proceeding, usually without the benefit of
discovery, id. § 16-5502 (c), to avoid the toll
that meritless litigation imposes on a defendant who has made
a prima facie showing that the claim arises from advocacy on
issues of public interest.
The
dispositive nature of a court's grant of a special motion
to dismiss after the claimant has been required to proffer
evidence, but without a full opportunity to engage in
discovery and before trial, is critical to our interpretation
of the "likely to succeed" standard. An
interpretation that puts the court in the position of making
credibility determinations and weighing the evidence to
determine whether a case should proceed to trial raises
serious constitutional concerns because it encroaches on the
role of the jury.[29] In view of
this concern, we apply the canon of constitutional avoidance,
"an interpretive tool, counseling that ambiguous
statutory language be construed to avoid serious
constitutional doubts." FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009). This canon
leads us to interpret the phrase "likely to succeed on
the merits," undefined in the D.C. Anti-SLAPP statute,
in a manner that does not supplant the role of the
fact-finder, lest the statute be rendered
unconstitutional.[30] We,
therefore, conclude that to remove doubt that the Anti-SLAPP
statute respects the right to a jury trial, the standard to
be employed by the court in evaluating whether a claim is
likely to succeed may result in dismissal only if the court
can conclude that the claimant could not prevail as a
matter of law, that is, after allowing for the weighing
of evidence and permissible inferences by the jury. Cf.
Mixon v. Wash. Metro. Area Transit Auth., 959 A.2d 55,
58 (D.C. 2008) (explaining that summary judgment does not
violate right to jury trial because it results in dismissal
only if no reasonable jury could find for the claimant based
on the undisputed facts).
The
standards against which the court must assess the legal
sufficiency of the evidence are the substantive evidentiary
standards that apply to the underlying claim and related
defenses and privileges. As we discuss in the next section,
in addition to the elements required to make out a claim for
defamation under the law of the District of Columbia, there
is a well-developed body of case law, originating with the
Supreme Court, that establishes different levels of fault and
proof that are designed to protect First Amendment rights.
One example is the requirement to prove actual malice by
clear and convincing evidence when the claimant is a public
official or, as in this case, a limited public figure with
respect to the issue that is the subject of speech claimed to
be defamatory. Cf. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 254-55 (1986) (holding that in
evaluating motion for summary judgment under Rule 56, as in
evaluating motion for directed verdict under Rule 50 (a), in
a case requiring proof of actual malice by clear and
convincing evidence, "the judge must view the evidence
presented through the prism of the substantive evidentiary
burden"). The precise question the court must ask,
therefore, is whether a jury properly instructed on the law,
including any applicable heightened fault and proof
requirements, could reasonably find for the claimant on the
evidence presented.[31]
We
acknowledge that our functional interpretation of the
statutory language is not evident from the face of the
statute alone. As we have explained, the interpretation we
adopt is made possible by the ambiguity of the statutory
language and rendered necessary to avoid doubt about the
constitutionality of § 16-5502 (b). This interpretation
comports with the legislative aim of building special
protections for a defendant who makes a prima facie case that
the claim arises from advocacy on issues of public interest.
A comparison of the procedures usually available in civil
litigation makes clear that the complement of provisions of
the Anti-SLAPP Act impose requirements and burdens on the
claimant that significantly advantage the defendant. As we
have noted, the filing of a special motion to dismiss stays
the claimant's right to seek discovery "until the
motion has been disposed of," with a limited exception
that favors the defendant. D.C. Code § 16-5502 (c). The
Act also places the initial burden on the claimant to present
legally sufficient evidence substantiating the merits without
placing a corresponding evidentiary demand on the defendant
who invokes the Act's protection. Id. §
16-5502 (b). This is a reversal of the allocation of burdens
for dismissal of a complaint under Superior Court Rule of
Civil Procedure 12 (b)(6), which requires the moving party to
show that the complaint's allegations, even if proven,
would not state a claim as a matter of law; and for summary
judgment under Superior Court Rule of Civil Procedure 56,
which requires the moving party to wait until discovery has
been completed and then shoulder the initial burden of
showing that there are no material facts genuinely in dispute
and that the movant is entitled to judgment as a matter of
law on the undisputed facts.
In
addition to these substantive burdens, there are financial
levies to deter a SLAPP plaintiff. The Act authorizes the
trial court to award costs and fees - including
attorney's fees - to a moving party who prevails "in
whole or in part" on a special motion to dismiss. D.C.
Code § 16-5504 (a). We have held that under the parallel
provision for special motions to quash under D.C. Code §
16-5503, the successful movant is presumptively entitled to
an award of fees unless special circumstances make a fee
award unjust. See Burke II, 133 A.3d at 571. The Act
is much less generous to a plaintiff who successfully defends
against a special motion to dismiss, allowing the award of
costs and fees "only if the court finds that [the]
motion . . . is frivolous or is solely intended to cause
unnecessary delay." D.C. Code § 16-5504 (b). In
sum, the special motion to dismiss not only provides
substantial advantages to the defendant over and above those
usually available in civil litigation, but also imposes
procedural and financial burdens on the plaintiff.
Our
interpretation of the requirements and standard applicable to
special motions to dismiss ensures that the Anti-SLAPP Act
provision is not redundant relative to the rules of civil
procedure. A defendant may still file a motion to dismiss a
complaint at the onset of litigation under Rule 12, based
solely on deficiencies in the pleadings. See Super.
Ct. Civ. R. 12 (a) (requiring that motion for failure to
state a claim must be filed within 20 days of service of
complaint). The Anti-SLAPP Act gives the defendant the option
to up the ante early in the litigation, by filing a special
motion to dismiss that will require the plaintiff to put his
evidentiary cards on the table and makes the plaintiff liable
for the defendant's costs and fees if the motion
succeeds. D.C. Code § 16-5502 (a) (requiring that
special motion to dismiss be filed within forty-five days of
service of the complaint); id. § 16-5504 (a)
(providing for costs and fees). Even if the Anti-SLAPP
special motion to dismiss is unsuccessful, the defendant
preserves the ability to move for summary judgment under Rule
56 later in the litigation, after discovery has been
completed, or for a directed verdict under Rule 50 after the
presentation of evidence at trial.[32]
Finally, our interpretation of the standard applicable to
special motions to dismiss as providing an early judicial
evaluation of the legal sufficiency of the plaintiff's
evidence strikes the right balance between the interests of
the parties. Consistent with the Anti-SLAPP Act's purpose
to deter meritless claims filed to harass the defendant for
exercising First Amendment rights, true SLAPPs can be
screened out quickly by requiring the plaintiff to present
her evidence for judicial evaluation of its legal sufficiency
early in the litigation. But by deferring to the jury's
reasonable decision-making, the constitutional right of a
plaintiff who has presented evidence that could persuade a
jury to find in her favor is respected. It bears remembering
that the fact that a defendant can make a threshold showing
that the claim arises from activities "in furtherance of
the right of advocacy on issues of public interest,"
D.C. Code § 16-5502 (a), does not mean that the
defendant is immunized from liability for common law claims.
See Duracraft Corp. v. Holmes Prods. Corp., 691
N.E.2d 935, 943 & n.19 (Mass. 1998) (construing
Anti-SLAPP statute to avoid unconstitutionality and noting
that "[b]y protecting one party's exercise of its
right of petition, unless it can be shown to be sham
petitioning, the statute impinges on the adverse party's
exercise of its right to petition, even when it is not
engaged in sham petitioning"). Rather, heightened legal
and proof requirements apply when First Amendment rights of
the defendant are implicated, but it is possible to meet
these requirements by strong evidence in support of the
claim. The immunity created by the Anti-SLAPP Act shields
only those defendants who face unsupported claims that do not
meet established legal standards. Thus, the special motion to
dismiss in the Anti-SLAPP Act must be interpreted as a tool
calibrated to take due account of the constitutional
interests of the defendant who can make a prima facie claim
to First Amendment protection and of the
constitutional interests of the plaintiff who proffers
sufficient evidence that the First Amendment protections can
be satisfied at trial; it is not a sledgehammer meant to get
rid of any claim against a defendant able to make a prima
facie case that the claim arises from activity covered by the
Act. See, e.g., Sandholm v. Kuecker, 962
N.E.2d 418, 429-30 (Ill. 2012) (noting that Illinois statute
is aimed solely at "meritless, retaliatory SLAPPs"
and "was not intended to protect those who commit
tortious acts and then seek refuge in the immunity conferred
by the statute").
To sum
up, it is not the court's role, at the preliminary stage
of ruling on a special motion to dismiss, to decide the
merits of the case but to test the legal sufficiency of the
evidence to support the claims. We now turn to a discussion
of the operative constitutional and legal substantive and
proof requirements that apply to the underlying claims and to
an analysis of the legal sufficiency of Dr. Mann's
proffered evidence applying those requirements.
V.
Judicial Review for Legal Sufficiency
A
court's review for legal sufficiency is a particularly
weighty endeavor when First Amendment rights are implicated.
The court must "examine for [itself] the statements in
issue and the circumstances under which they were made to see
. . . whether they are of a character which the principles of
the First Amendment . . . protect." N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 285 (1964) (quoting
Pennekamp v. Fla., 328 U.S. 331, 335 (1946)). The
court must consider whether a properly instructed jury could
find for the plaintiff "both to be sure that the speech
in question actually falls within the unprotected category
and to confine the perimeters of any unprotected category
within acceptably narrow limits in an effort to ensure that
protected expression will not be inhibited." Bose
Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 505 (1984). This is a question of law, measured
against constitutional standards, that does not involve the
court in making credibility determinations or weighing the
evidence. See Harte-Hanks Commc'ns, Inc. v.
Connaughton, 491 U.S. 657, 685, 690 (1989) (considering
findings of fact made by jury along with undisputed evidence
in concluding evidence was legally sufficient to prove actual
malice); see id. at 697-700 (Scalia, J., concurring)
(referring to appellate court's “independent
assessment of whether malice was clearly and convincingly
proved on the assumption that the jury made all the
supportive findings it reasonably could have made”).
With these principles in mind, we turn to a de novo review of
the record to determine whether the evidence produced by Dr.
Mann could support, with the clarity required by First
Amendment principles, a jury verdict in his favor.
A.
Defamation
To
succeed on a claim for defamation, a plaintiff must prove:
"(1) that the defendant made a false and defamatory
statement concerning the plaintiff; (2) that the defendant
published the statement without privilege to a third party;
(3) that the defendant's fault in publishing the
statement [met the requisite standard];[33] and (4) either that the statement was
actionable as a matter of law irrespective of special harm or
that its publication caused the plaintiff special harm."
Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)
(quoting Crowley v. N. Am. Telecomms. Ass'n, 691
A.2d 1169, 1173 n.2 (D.C. 1997)). Appellants contend that the
trial court erred in denying their special motions to dismiss
because Dr. Mann did not sufficiently substantiate his
defamation claim on the first three elements. As to Mr.
Lowry's editorial, we agree; but as to some of the other
statements on which Dr. Mann bases his complaint, we
disagree. We conclude that Dr. Mann hurdled the Anti-SLAPP
statute's threshold showing of likelihood of success on
the merits because the evidence he has presented is legally
sufficient to support findings by the fact-finder that
statements in Mr. Simberg's and Mr. Steyn's articles
were defamatory, were published by appellants to a third
party without privilege, and were made with actual malice.
1. False and ...