The District wants to use a new city law intended to prevent powerful interests from intimidating citizen activists to end a defamation lawsuit filed against Chief Financial Officer Natwar M. Gandhi.
City lawyers told a D.C. Superior Court judge on Monday they intended to file an “anti-SLAPP” motion to dismiss the case filed by Eric W. Payne, Gandhi’s former contracting director. Payne says Gandhi defamed him in comments made in a private e-mail and to The Washington Post responding to a separate lawsuit Payne filed in federal court claiming wrongful termination.
A SLAPP is a “strategic lawsuit against public participation,” defined by the D.C. Council in 2010 as “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.”
These suits, the council found, can be “a means to muzzle speech or efforts to petition the government on issues of public interest” and “are often without merit, but achieve their filer’s intention of punishing or preventing opposing points of view.”
Gandhi, in the Post interview, said Payne had been fired because he was a “very poor manager” who was “nasty to people” and “rude to outsiders” — not, as Payne alleged, in connection with his actions on the controversial lottery contract.
The law review article that first defined SLAPPs said by definition they are “filed against non-governmental individuals and/or groups,” but there is nothing in the District anti-SLAPP law making that distinction. Any claim rooted in a public statement made about “an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding” is subject to an anti-SLAPP dismissal.
While the anti-SLAPP motion is under consideration, Payne cannot proceed with discovery in his case. If the motion is granted, Payne could be on the hook for the District’s legal costs.
Payne’s lawyer, Donald Temple, said the motion represents a “painful exaggeration of the law” and an “intransigent attempt to just hurt Payne rather than to resolve the case.” Ted Gest, a spokesman for the Office of the Attorney General, declined to comment; lawyers have told Judge Laura A. Cordero they plan to file the motion by Nov. 7.
The city’s anti-SLAPP law, passed in 2010, has resulted in one successful dismissal, of a libel claim filed by a D.C. firefighter against WTTG-TV, which had aired a report about his high overtime earnings.
Motions have also been filed in several federal cases, where thus far District Court judges have held the city law does not apply to the federal courts. Two cases — one filed by the 3M Corp. against lawyer/lobbyist Lanny Davis et al., the other by Washington Redskins owner Daniel M. Snyder against Washington City Paper — were settled before the anti-SLAPP claims were resolved.
Other cases involving anti-SLAPP motions continue to be litigated, including one brought by former Agriculture Department official Shirley Sherrod against late conservative provocateur Andrew Breitbart. A federal appeals court will decide if the anti-SLAPP law can apply in that case. Yet another case involving an anti-SLAPP motion, filed by a Christian rock artist against MSNBC and its host Rachel Maddow, is ongoing; a Superior Court judge granted the motion earlier this year, but the plaintiff has attempted to move the case to federal court, where it would not apply.
Update, 5:55 p.m.: Forgot one suit: WorldNetDaily founder Joseph Farah sued Esquire magazine over a blog post satirizing Farah’s “birther” stance. A U.S. District Court judge dismissed the case pursuant to an anti-SLAPP motion; Farah is appealing.