D.C. Court of Appeals Permits Early Anti-SLAPP Appeals for Anonymous Speakers

by Holland & Knight LLP


  • In a victory for anonymous speech, journalists and free speech advocates, the D.C. Court of Appeals, in John Doe No. 1 v. Burke (No. 13-CV-83), issued its first decision under the D.C. Anti-SLAPP statute.
  • This ruling provides added protection for anonymous speakers faced with the chilling impact of defamation claims.

In a victory for anonymous speech, journalists and free speech advocates, the D.C. Court of Appeals, in John Doe No. 1 v. Burke (No. 13-CV-83), issued its first decision under the D.C. Anti-SLAPP statute.

John Doe No. 1 v. Burke involved anonymous statements added to a Wikipedia entry concerning a D.C. human rights attorney. Specifically, the plaintiff, Susan Burke, had alleged that anonymous posters were participating in a scheme to discredit her that was organized by the private security services firm formerly known as Blackwater. She filed suit against several anonymous defendants in D.C. Superior Court alleging defamation and other claims. Because Ms. Burke did not know the real names of the Wikipedia users, she issued a subpoena to obtain Wikipedia's user data so that she could obtain the anonymous posters' identifying information.

One of the anonymous posters moved to quash the subpoena under the relatively new D.C. Anti-SLAPP statute's "special motion to quash" provision. A "special motion to quash" is a procedure that allows a person whose personal identifying information is sought to safeguard his or her identity.

The trial judge denied this motion, holding that the poster was not entitled to the protection of the Anti-SLAPP statute because he had not established that:

  • Ms. Burke was a public figure.
  • The speech was not commercially motivated.
  • He was speaking about "an issue of public interest" within the meaning of the statute.

The trial judge also ruled that even if the speech was about an issue of public interest, the anonymous defendant was not entitled to quash the subpoena because Ms. Burke had demonstrated a likelihood of success on the merits of her defamation claim.

In the first appellate test of the 2010 statute, the D.C. Court of Appeals held that a decision denying a special motion to quash is immediately appealable. Focusing on the legislative history of the Anti-SLAPP statute and the D.C. Council's decision to offer protections for anonymous speech, the D.C. Court of Appeals said:

The 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 the 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 that the collateral order doctrine is meant to protect.

Addressing the merits, the Court reversed the decision of the Superior Court. Specifically, the D.C. Court of Appeals said that:

  • Ms. Burke was a limited purpose public figure, stemming from her role in litigation concerning a public international event. "Ms. Burke went above and beyond simple legal representation in court pleadings and appearances. She sought substantial publicity for this case by putting out press releases and giving interviews."
  • The Superior Court erred in requiring the defendant to disprove commercial motivation. "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.'"
  • Because Ms. Burke was a limited purpose public figure, she was required to show by clear and convincing evidence that the defendant's defamatory statement was published with actual malice. Because she had not done so, Ms. Burke was unlikely to succeed on the merits of her defamation claim.
  • The Court of Appeals also questioned whether the statements themselves were even defamatory, but, because the defendant did not raise the issue, the Court did not reach the issue.

This ruling provides added protection for anonymous speakers faced with the chilling impact of defamation claims.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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