January 29, 2014
Judges in the District of Columbia Court of Appeals grappled today with the question of when a lawyer involved in high-profile litigation crosses the line to becoming a “public figure” herself.
Washington lawyer Susan Burke of Katz, Marshall & Banks sued anonymous Wikipedia editors she believed were responsible for posting defamatory information about her online. One of the editors appealed after unsuccessfully fighting Burke’s motion to unmask his identity.
One point of contention during arguments today before a three-judge panel was whether Burke should be considered a “public figure.” The D.C. law barring strategic lawsuits against public participation, or SLAPPs, offers anonymous speakers early protection against unmasking if the speech involved “issues of public interest.” The trial judge, in denying the Wikipedia editor’s effort to quash Burke’s subpoena, found Burke was not a public figure.
Public figures face a higher burden of proof in defamation cases. A public figure plaintiff has to prove a defendant acted with malice, while a private individual only has to show the defendant acted negligently.
Christopher Hajec of The Center for Individual Rights, a lawyer for the anonymous editor, said during arguments today that Burke was a public figure, pointing to high-profile lawsuits she filed in the past involving military issues and the public attention she sought concerning those cases, including publishing news releases, holding press conferences and making public appearances.
Burke represented the families of victims of shootings in Iraq who sued 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 guards for the killing of Iraqi civilians. In late 2009, a federal district judge dismissed the government’s case, finding prosecutors improperly used statements made by the defendants. The criminal case was later reinstated.
In 2012, according to Burke’s complaint, a Wikipedia editor known as 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.
Zujua is fighting Burke’s subpoena. CapBasics359 has not participated in the case. Burke’s lawyers said they haven’t been able to find a way to identify or serve CapBasics359 with the complaint.
Senior Judge Michael Farrell drew a line between a litigator such as Burke and politicians or other lawyers traditionally considered public figures, citing lawyer and former presidential candidate Ralph Nader as an example. Farrell asked Hajec if Burke would still be a public figure if she sought media attention solely to benefit her client’s interests. Hajec said it would be up to a jury to decide if that was relevant information, but added Burke hadn’t made that argument or entered any evidence on the record.
Burke’s lawyer, William O’Neil of The O’Neil Group in Washington, said the court should only look at whether Burke was a public figure with respect to the Blackwater issue. Her work fighting sexual assault in the military, for instance, shouldn’t be part of the equation, he said. In the Blackwater case, O’Neil said Burke did not become a public figure by responding to media inquiries.
Judge Catharine Easterly said it seemed Burke went beyond just answering questions from reporters about the lawsuit, noting she put out a statement saying the lawsuit would show Blackwater’s interests were contrary to the interests of the United States and Iraq. O’Neil said those were elements of the lawsuit.
Easterly said Burke had the option of not responding to reporters, a point O’Neil conceded. Farrell then jumped in to say that press coverage could benefit Burke’s client, and O’Neil agreed.
Before reaching the substance of Burke’s case, the appeals court will have to decide whether it can hear the appeal at all. O’Neil said the anti-SLAPP law didn’t include language allowing intermediate appeals and urged the court to find it did not have jurisdiction at this stage of the litigation. Easterly said the court wasn’t bound by the council’s decision not to include that language in the law.
The Washington Post and other news outlets and press freedom advocates intervened in the case to argue in favor of allowing intermediate appeals in cases such as Burke’s, pointing to decisions from federal appeals courts in states that adopted anti-SLAPP laws.
James McLaughlin, a counsel for The Washington Post, told the court today that intermediate appeals were necessary because unmasking an anonymous speaker was an “irreparable” order.
Senior Judge Frank Schwelb also heard the case.
More about this case: