The National Law Journal
September 9, 2013
By Zoe Tillman
Appeals court will examine the anonymous speech part of a new D.C. law.
In the latest case to test the limits of a District of Columbia law that shields protected speech from litigation, an anonymous Wikipedia editor is fighting an attempt to unmask his identity.
Washington lawyer Susan Burke, who recently left her solo practice to join Katz, Marshall & Banks, sued anonymous editors she believed posted defamatory information about her on Wikipedia. After one of the editors unsuccessfully challenged Burke’s subpoena to reveal his identity, he appealed.
This month, the District of Columbia Court of Appeals will hear arguments about whether the editor can appeal at all. Courts tend to reject appeals while cases are pending, but the editor, identified in court papers as Zujua, argues the city’s law barring strategic lawsuits against public participation, or SLAPPs, permits it. Burke has countered that the law says nothing about interlocutory appeals and that the appeals court can’t create a new right.
The law, which went into effect in March 2011, was designed to give defendants who believe they are being sued over protected speech an early route to dismissal. It also allowed anonymous speakers to challenge requests for identifying information.
D.C. courts have grappled with the law before, chiefly over its application in federal court. Lawyers following public-speech issues believe Burke’s case is the first involving the anonymous-speech section.
ATTORNEY IN BLACKWATER SUIT
Burke was hired in 2009 by the families of victims of shootings in Iraq to sue private security contractor Blackwater Inc., now known as Academi LLC. The cases settled in 2010. Around the same time, the U.S. Department of Justice was prosecuting Blackwater security guards for the killing of Iraqi civilians. In late 2009, a federal district judge dismissed the government’s case, finding that prosecutors improperly used statements made by the defendants. The criminal case was later reinstated.
In 2012, according to Burke’s complaint, the Wikipedia editor Zujua edited Burke’s page, adding a section incorrectly tying the ruling dismissing the government’s case to Burke’s civil lawsuit. Burke removed the section. Several months later, a Wikipedia editor known as CapBasics359 removed Burke’s edits and repeatedly republished the inaccurate information over Burke’s objections, Burke alleged.
“The frustration of dealing with Wikipedia led her to file the suit, mostly in an effort to find out who was doing it,” said Burke’s lawyer, William O’Neil of The O’Neil Group in Washington. In filings, Burke said she suspected Blackwater was involved since the company had threatened her in the past. She referred questions to O’Neil.
After filing her lawsuit in September 2012, Burke subpoenaed Wikipedia for information on Zujua and CapBasics359. (CapBasics359 did not fight the subpoena. Burke’s lawyers have learned that CapBasics359 logged in at a Starbucks in California. The editor’s identity, however, remains unknown.)
Christopher Hajec of The Center for Individual Rights said Zujua’s edits were protected speech about a public issue involving a public figure — in this case, Burke, given her involvement in high-profile litigation. “We view this as having the effect of chilling the free speech rights of other Wikipedia editors who will hesitate to edit on matters of public concern for fear of being sued if they make a mistake,” he said.
District of Columbia Superior Court Judge Maurice Ross sided with Burke in January. Ross found that Zujua failed to prove the Wikipedia edits involved constituted protected speech, since Burke wasn’t a public figure. Moreover, the judge said, Zujua hadn’t shown his statements weren’t commercially motivated — another factor under the anti-SLAPP law — and that Burke had proved she was likely to succeed. Zujua appealed.
Burke argued Ross’ order wasn’t appealable because it wasn’t a final order resolving the case. Early drafts of the anti-SLAPP law allowed interlocutory appeals, but the D.C. Council took the section out for fear of violating the Home Rule Act, which limits the council’s ability to legislate changes to the court’s jurisdiction. Zujua argued the legislative history showed the council supported immediate appeals and that waiting until the end of the case to appeal would cause “irreparable” harm to his right to anonymous speech.
The interlocutory appeal issue came up earlier this year before the U.S. Court of Appeals for the D.C. Circuit in another defamation case, but the court decided that case on other grounds. In December, a three-judge panel of the D.C. Circuit dismissed an appeal similar to Zujua’s, finding in a two-sentence order that the court couldn’t hear an appeal of an order denying a motion to dismiss under the anti-SLAPP law. Unpublished orders generally are not binding precedent. The appeals court is expected to focus on the appeal issue during arguments on September 19. “What we want to do is strengthen” the anti-SLAPP law, Hajec said. “We want to establish that hasty denials of these motions are appealable.”
The American Civil Liberties Union of the Nation’s Capital filed a brief supporting Zujua. “[I]mmediate appeal of the denial of a SLAPP motion to dismiss is essential to full protection against SLAPP suits,” legal director Arthur Spitzer said in an e-mail. “[I]t’s clear from the legislative history of the D.C. law that the Council wanted to authorize immediate appeals.”
O’Neil insisted the court should follow the letter of the law. “Since the D.C. Council specifically took that out, the court shouldn’t be reading into it,” he said. Zujua and Hajec “already got what the anti-SLAPP law was designed to give them: a hearing before a judge to see if the elements of the anti-SLAPP statute were implicated.”
This article originally appeared in the print edition under the headline “Lawyer Wants Identity of Wikipedia Editor Revealed.”
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