By Laura R. Handman, Constance M. Pendleton, and Micah J. Ratner
Judge Reggie B. Walton of the United States District Court for the District of Columbia recently applied the District of Columbia Anti-SLAPP Act, D.C. Code § 16-5501 et seq., in federal court and granted Atlantic Monthly Group, Inc. and its award-winning national correspondent Jeffrey Goldberg’s special motion to dismiss a libel complaint brought by pro se plaintiff George Boley. Boley v. Atlantic Monthly Group,—F. Supp. 2d—, 2013 WL 3185154 (D.D.C. June 25, 2013). Boley is a former Liberian public official and leader of a faction during the Liberian civil war in the mid-1990s who was later deported from the United States for alleged war crimes. This is the first time a federal court in the District of Columbia has dismissed a libel suit based solely on the D.C. Anti-SLAPP Act. The decision also addresses novel fair report privilege, opinion, and actual malice issues under D.C. law in ways that are favorable to media defendants.
The lawsuit arose from two articles written by Goldberg and published on The Atlantic’s website in 2010. The articles report on U.S. immigration charges against Boley for extrajudicial killings committed during the Liberian civil war, the investigation, and his arrest and detention by immigration officials, and refer to Boley as an “evil” “warlord” who “belongs in the Hague.” Boley, 2013 WL 3185154, at *1-2. Citing an affidavit Goldberg submitted in one of Boley’s prior unsuccessful libel suits, one article described how Boley’s organization “recruited and armed child soldiers; fed them drugs; and ordered them to rape and kill.” Id. at *1-2, *7-8. Boley filed suit for defamation in January 2013 alleging that calling him an “evil” “warlord” who committed acts that would constitute war crimes tarnished his reputation. In response, The Atlantic and Goldberg filed a motion to dismiss for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) and a special motion to dismiss under the D.C. Anti-SLAPP Act, D.C. Code § 16-5502(a).
Applicability of Anti-SLAPP Statutes in Federal Court
Judge Walton decided only the anti-SLAPP motion. As a threshold matter, the court held that the D.C. Anti-SLAPP Act applies in federal diversity actions under the Erie doctrine, following the persuasive holdings of the First, Fifth, and Ninth Circuits and Judge Rosemary Collyer’s decision in Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 & n.10 (D.D.C. 2012) that applied the D.C. Anti-SLAPP Act. Id. at *2. Judge Walton expressly disagreed with the decision in 3M Co. v. Boulter, 842 F. Supp. 2d 85, 102 (D.D.C. 2012) authored by Judge Robert Wilkins that refused to apply the Act. Id. The United States Court of Appeals for the District of Columbia Circuit has an opportunity to put this split in authority to rest in Farah v. Esquire Magazine, Inc., in which oral argument has been scheduled for October 3, 2013.
Prima Facie Showing of Protected Activity
Judge Walton had no difficulty finding The Atlantic and Goldberg’s statements satisfied the first step of the anti-SLAPP analysis to make “‘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.’” Id. at *4 (quoting § 16-5502(b)). The blog posts were “‘written . . . statement[s] made’” on Atlantic’s website, a “‘place open to the public,’” on “‘issue of public interest’” about, not only a public figure, but matters involving alleged war crimes by a foreign official and deportation proceedings that “are quintessentially matters of public rather than private interest.” Id. at *4 (quoting § 16-5501(1)(A)(ii)). The reporting also qualified as “other expression . . . communicating views to . . . the public in connection with an issue of public interest” (id., quoting § 16-5501(1)(B)) and as written statements made “[i]n connection with an issue under consideration or review” by an executive body. Id. at *5 (quoting § 16-5501(1)(A)(i)).
Likelihood of Success on the Merits
Applying the anti-SLAPP burden-shifting provisions under the second prong, Judge Walton held that Boley had failed to show “likelihood of success” because the statements were either privileged as a fair report of official proceedings, opinion or fair comment, and Boley had failed to show falsity or actual malice as to the statement that Boley was a “warlord.” Judge Wilkins equated California’s “probability of prevailing” standard with the District’s “likelihood of success” standard—the first time a D.C. federal court had done so—but the opinion did not foreclose future courts from finding the D.C. Anti-SLAPP Act imposes a higher threshold. Id. at *5.
Specifically, the Court held, on a novel issue in the District, that Goldberg’s summary of his own affidavit filed in one of Boley’s prior civil lawsuits was protected by the fair report privilege as a fair and accurate account attributed to statements made in a judicial proceeding. Id. at *7. Reporting on the arrest, investigation, and charges was also privileged. Id. at *6. And to the extent Goldberg opined that the potential charge for war crimes was a “good thing because he belongs in the Hague,” those statements were protected by the fair comment privilege. Id. at *7.
Further, the Court followed the Ninth Circuit and found that referring to a plaintiff as “evil” is non-actionable “imaginative expression” and “rhetorical hyperbole” that is incapable of verification as fact. Id. at *8. Finally, Judge Walton held that Boley was not likely to succeed on the claim arising from characterizing Boley as a “warlord,” “because there is no indication that the statement was false or made with actual malice.” Id. at *8. After finding that Boley was a limited-purpose public figure, Judge Walton held Boley was not likely to succeed on falsity or fault by merely resting on general denials without offering evidence in opposition to the anti-SLAPP motion. Id. at *8-12. This was particularly true because Atlantic and Boley pointed to evidence of the lack of actual malice, including that Goldberg conducted an investigation in which he personally observed Boley commanding child soldiers during the civil war and corroborated that Boley was a warlord citing State Department reports and U.S. immigration authorities. Id. at *11-12.
After granting The Atlantic and Goldberg’s motion, Judge Walton authorized them to seek attorneys’ fees against Boley under the D.C. Anti-SLAPP Act.
Originally published in the August 2013 issue of the MLRC MediaLawLetter
Laura R. Handman, Constance M. Pendleton, and Micah J. Ratner of Davis Wright Tremaine LLP, and in-house counsel Bruce L. Gottlieb and Aretae Wyler, represented Defendants Atlantic Monthly Group, Inc. and Jeffrey Goldberg. Plaintiff George S. Boley, Sr. represented himself pro se.