by Paul Alan Levy
The DC Court of Appeals has reversed the denial of a special motion to quash a subpoena seeking to identify the anonymous defendant in a defamation action. The suit, Burke v. Doe, was brought by lawyer Susan Burke, who complained that her Wikipedia entry had been modified to include false statements relating to a prominent civil action that she had brought seeking damages from Blackwater for actions arising from its federal contracts in Iraq. Although the panel was at pains to say that it was not addressing the appealability of special motions to dismiss under the statute, much of its reasoning would apply equally to appeals from those motions.
The appealability issue arises because DC’s anti-SLAPP law, unlike many similar laws in other states, does not have a provision providing for immediate appeals from denials of anti-SLAPP motions. At the time the law was adopted, a DC Court of Appeals ruling had recently held that legislation purporting to regulate the appellate jurisdiction of the Court of Appeals was a violation of the Home Rule Charter. The legislative history reflects that the Council would have preferred to enact interlocutory jurisdiction, but dropped that provision from the anti-SLAPP bill in deference to the Court of Appeals ruling.
The Court of Appeals also ruled that the special motion to quash was improperly denied. It decided that Burke was a public figure by virtue of her role as counsel in high profile litigation who had deliberately sought public attention for the suit, thus, the Court said, inviting criticism and running the risk that some of the criticism might be ill-informed. The Court of Appeals specifically found fault with the trial judge’s determination that an anonymous defendant has to bear the burden of showing that he or she lacked commercial motivation for the criticisms at issue in the litigation, at least in the absence of any indication that the speech was commercial. The court also decided that Burke had not shown any likelihood of success on the merits, largely because Burke had offered no reason to believe that the criticisms were posted with actual malice. In this regard, the court acknowledged that it can be difficult for a plaintiff to mount a showing of actual malice without knowing the identity of the speaker: “It is not impossible, however, and the circumstances of the alleged defamation may well demonstrate malice.”