Free Speech Protections Bolstered in District of Columbia

In a significant victory for CIR client “Zujua” — an anonymous Wikepedia editor who was sued for defamation for making edits to a Wikipedia entry — the Court of Appeals for the District of Columbia reversed trial judge Maurice Ross’s earlier ruling denying Zujua attorney’s fees.

Judge Ross had ruled that the D.C. anti-SLAPP statute only allows an award of attorney’s fees for what Ross termed “classic” SLAPP lawsuits, which he characterized as suits designed to stifle free speech by filing a frivolous claim.  In his view, the suit against Zujua did not stifle his speech and was not frivolous (even though the Court of Appeals had earlier determined that it had no realistic chance of success).  Among Ross’s rationales struck down by the Court of Appeals was the fact that Zujua was represented by the Center for Individual Rights, a public interest law firm that Ross contended is unmotivated by fees.

The Court of Appeals ruled that an anonymous defendant who successfully challenges a subpoena under the District’s anti-SLAPP statute is presumptively entitled to attorney’s fees never mind whether the subpoena meets Ross’s definition of a “classic” SLAPP suit or whether the defendant is represented by public interest counsel.  It is enough that the defendant show that his speech fits within the category of speech covered by the SLAPP statute, i.e., that it is in furtherance of the right of advocacy on an issue of public interest.

Zujua’s victory before the Court of Appeals ensures that defendants who engage in public advocacy can seek quick dismissal of expensive lawsuits that have no realistic chance of success without incurring ruinous legal fees.  Had the Court ruled the other way, participants in public debate would have been under pressure to settle potentially ruinous defamation suits regardless of their merit solely because they could not afford to avail themselves of the protection offered by the SLAPP statute (or could not find a public interest firm to represent them pro bono).

Zujua was supported by an amicus briefs from the ACLU, which argued that the presumptive award of attorneys’ fees to the prevailing party is “essential to achieving the objectives of the anti-SLAPP statute.”  The Court of Appeals decision is the second precedent-setting victory CIR has achieved under D.C.’s anti-SLAPP statute.  Zujua’s case now returns to Judge Ross to decide the reasonableness of Zujua’s fee petition, including the additional fees attributable to this most recent trip to the Court of Appeals.


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IR is representing an anonymous Wikipedia editor in a precedent-seeting case designed to establish the free speech right of anonymous internet authors to remain anonymous. At issue is whether and on what terms the courts will enforce the District of Columbia Anti-SLAPP statute, which is designed to protect individuals from lawsuits intended to chill or silence speech by allowing the case against them to be dismissed at an early stage if the speech concerns a matter of public concern and if the complaining party cannot establish a likelihood of success on the merits.

CIR’s client, who goes by the screen name “Zujua,” was sued for defamation by Susan Burke, a human-rights attorney who has garnered considerable public attention as a result of several lawsuits against the U.S. military and military contractors such as Blackwater USA, Inc.

Zujua edited a portion of Burke’s Wikipedia page concerning her lawsuit against Blackwater over the shooting deaths of Iraqi civilians.  In editing this portion of her page, Zujua mistakenly linked her civil case against Blackwater with a federal criminal case against Blackwater employees over the same events.  The latter case had been dismissed because of prosecutorial misconduct.  The error was corrected a month later.

Still, Burke launched a defamation suit against Zujua, an action CIR characterizes as a SLAPP suit (a Strategic Lawsuit Against Public Participation) that is calculated to make others hesitate to criticize Susan Burke.  Pursuant to the District of Columbia SLAPP statute, a person sued as a result of participating in public discussion can move to dismiss the case early-on unless the plaintiff can show a likelihood of succeeding on the merits.

In the trial court we moved to quash subpoenas Burke had issued to Wikipedia to learn Zujua’s identity on the grounds that because Susan Burke is a public figure, she must show that Zujua made his confused edit with the knowledge that it was false in order to prevail in her defamation suit.  The trial court erroneously denied the motion and CIR appealed.

Burke countered that Zujua has no right of immediate appeal and that, as a result, he must disclose his identity, defend himself in the suit, and then, on appeal, raise the question of whether the trial court improperly denied him the protection of the SLAPP statute.  CIR argued that the SLAPP statute would offer little protection to an individual such as Zujua unless the law provided an immediate right of appeal on the question whether his speech was protected by the SLAPP statute.

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Author Mark Steyn

While Zujua’s case was pending on appeal, a similar issue arose in another high-profile case involving the DC anti-SLAPP statute.  Well-known climate scientist Michael Mann is suing the National Review, the Competitive Enterprise Institute, and columnist Mark Steyn for calling Mann’s scientific claims about global warming “fraudulent.”  Like Zujua, the National Review, CEI, and Steyn claim their speech is protected under the SLAPP statute because Mann is unlikely to succeed in proving defamation.  As with Zujua, the DC trial court denied their SLAPP motion.

CIR’s defense of Zujua resulted in a precedent that strengthens the anti-SLAPP statute in the District of Columbia — one of the most important free-speech jurisdictions in the country.

Case Status: Victory


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