September 7, 2011

AFTER WASHINGTON Redskins owner Daniel Snyder sued the Washington City Paper for defamation this year, the paper asked a D.C. Superior Court judge to throw out the lawsuit under a new law meant to protect gadflies, critics and the media from “Strategic Lawsuits Against Public Participation” (SLAPP). These types of lawsuits are often filed by wealthy individuals intent on punishing critics by forcing them to engage in often protracted and costly litigation. (Disclosure: The Washington Post Co. supported the District’s anti-SLAPP measure. Post sportswriter Dan Steinberg has been subpoenaed by Mr. Snyder in this lawsuit; that subpoena is on hold until the judge rules on the anti-SLAPP provision.)

To cut down on the potential expenses faced by defamation defendants, the anti-SLAPP law allows a judge to put the expensive and invasive discovery process on hold and to decide at the earliest stages whether to allow the suit to proceed. To move forward, a plaintiff must show that he is likely to prevail on the merits. The judge may allow limited or targeted discovery if it is deemed necessary to evaluate the plaintiff’s case.

Mr. Snyder’s lawyers are challenging the constitutionality of the anti-SLAPP law as a violation of the District’s Home Rule Act. Only the courts — not the D.C. Council — may change the rules that govern legal proceedings, the lawyers assert in an argument that echoes concerns raised by then-D.C. Attorney General Peter J. Nickles when the anti-SLAPP legislation was introduced. It is a credible argument but not a winning one in our estimation.

The Home Rule Act restricts the ability of the council to alter the organization or jurisdiction of the D.C. Superior Court and the D.C. Court of Appeals. In response to Mr. Nickles’s concerns, the council eliminated a provision that had been cited by the appeals court as running afoul of the Home Rule Act. The final version of the anti-SLAPP law neither tinkers with the court’s jurisdiction nor changes its structure. The D.C. Court of Appeals has recognized on several occasions the D.C. Council’s authority to enact laws that will have an impact on the way the courts operate. In the case of the anti-SLAPP law, the council created new and needed protections for those hit with vengeful and frivolous defamation suits.