DC Court of Appeals Holds that Denial of Motion to Quash Under DC Anti-SLAPP Statute Is Immediately Appealable

by LeClairRyan

Yesterday, in its first decision interpreting the DC Anti-SLAPP statute, the DC Court of Appeals (DC’s highest court) held that:

-      the denial of a special motion to quash under the statute is immediately appealable under the collateral order doctrine; and

-      a party making a motion under the DC anti-SLAPP statute does not need to disprove, in the first instance, that it was not commercially motivated.

(For background on the Burke v. Doe case, see here).

On the first issue, the Court held that immediate appellate review from the denial of a special motion to quash was necessary to protect established rights:

[t]he exercise of the statutorily protected right to anonymous speech would be substantially chilled if the denial of a special motion to quash were not immediately appealable. . . .   Deferring review of the denial of a special motion to quash would result in the irreversible loss of anonymity that the Anti-SLAPP Act specifically seeks to protect.  As a result, those who would speak out anonymously might choose not to speak at all.  This is precisely the sort of injury to an important public interest that this court has acknowledged the collateral order doctrine is meant to protect.

The Court took pains to emphasize, however, that it was not ruling on whether a more typical anti-SLAPP motion (to dismiss a libel action) is immediately appealable:

[w]e do not address the related but separate question of whether an order denying a special motion to dismiss under the Anti-SLAPP Act is immediately appealable. . . .  We see no reason to address the appealability of the special motion to dismiss in this case.

But, in holding that the denial of a special motion to quash under the DC Anti-SLAPP statute is immediately appealable, the Court cited two decisions which it acknowledged “apply the collateral order doctrine to special motions to dismiss.”  It held that these decisions were relevant, however, because the anti-SLAPP statutes there were similar to the DC anti-SLAPP statute.  Presumably this analysis will carry over to the special motion to dismiss context.

On the second issue, the Court rejected the trial court’s conclusion that the movant needed to disprove that his speech was commercially motivated:

[i]t appears to have been the trial court’s understanding that in order to establish “an act in furtherance of the right of advocacy on issues of public interest,” the anonymous speaker must also disprove commercial motivation, even where such motivation is not apparent from the content of the speech.  This apparent presumption of commercial interest has no foundation in the statute which merely states what an issue of public interest is and is not.  Moreover, such a presumption is inappropriate in the context of a prima facie showing, for which we have held the burden of proof is “not onerous.” . . .  [I]it would turn the statute on its head if a party seeking a special motion to quash had to reveal his professional affiliation or other identifying information to disprove a disqualifying commercial motivation not apparent from his speech alone.

On the merits, the Court found that the special motion to quash should have been granted because: (a) Ms. Burke was a limited public purpose figure; (b) she had not shown that the allegedly defamatory statement was published with actual malice.  The case was accordingly remanded to the trial court with instructions to enter an order granting the special motion to dismiss, and to allow the movant to renew his claim for attorneys’ fees.

Takeaway: the headline here is the Court’s conclusion that the denial of a special motion to quash is immediately appealable.  While the Court was careful to not extend its ruling to the denial of a special motion to dismiss, parties who are currently appealing from the denial of special motions to dismiss have to be buoyed by the decision.

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