| Subgrades | |
| Covered Speech: | A- |
| Anti-SLAPP Procedures: | C- |
| Subscores | |
| Covered Speech: | 90 out of 100 points |
| Anti-SLAPP Procedures: | 57 out of 100 points |
| Detailed Scoring on Anti-SLAPP Procedures | |
| Suspension of Court Proceedings Upon an Anti-SLAPP Motion: | 0 of 20 points |
| Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: | 12 of 12 points |
| Right to an Immediate Appeal: | 20 of 25 points |
| Award of Costs and Attorney Fees: | 25 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 0 of 3 points |
State Anti-SLAPP Statute
The District of Columbia’s anti-SLAPP statute[1] protects (1) statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (2) statements made in a place open to the public or in a public forum in connection with an issue of public interest, and (3) expressions and expressive conduct that involves petitioning the government or communicating with the public in connection with an “issue of public interest.” (The statute expressly distinguishes between issues of public interest and issues of private or commercial interest; the statute protects speech about goods, products, or services in the marketplace, but not statements that are directed primarily towards protecting the speaker’s commercial interests.) Although the statute provides that discovery is stayed once an anti-SLAPP motion is filed, the District of Columbia Court of Appeals (the highest appellate court in the jurisdiction) has ruled that this provision is invalid because it “violates the [federal] Home Rule Act.”[2] The statute says that in order to prevail against an anti-SLAPP motion, the respondent must establish that the claim is “likely to succeed on the merits” at trial. However, the District of Columbia Court of Appeals has held that this “high of a bar” raises “serious constitutional concerns,” and has thus interpreted the language as meaning a plaintiff only needs to “present an evidentiary basis that would permit a reasonable, properly instructed jury to find in the plaintiff’s favor.”[3] The Court of Appeals has held that there is a right to interlocutory appeal of an order denying an anti-SLAPP motion even though that right is not stated in the statute’s text.[4] The court may award costs and attorney fees to the prevailing movant on an anti-SLAPP motion; conversely, if the court finds the motion to be frivolous or solely intended to cause unnecessary delay, then it may award costs and attorney fees to the prevailing respondent.[5]
How to Improve the District of Columbia’s Score
The District’s law gives the court the option, not the requirement, of awarding reasonable attorney fees and court costs to prevailing defendants. Fortunately, the city’s highest court has ruled that a successful SLAPP movant is entitled to “a presumptive award of reasonable attorney’s fees,” unless special circumstances would make that award unjust.
A mandatory fee-shifting provision would remove the risk that an award might not be granted and make it more likely that a defendant with limited financial resources who faces a SLAPP will be represented by an attorney. The prospect of fee-shifting encourages attorneys to provide such defendants with representation – especially when defendants face weak or frivolous claims.
The best anti-SLAPP laws enable defendants to recoup the money they spent on legal costs. Requiring payment of reasonable attorney fees and court costs to prevailing speakers would provide deterrent effects against strategic lawsuits of dubious merit.
Under the Home Rule Act, the city council is powerless to fix the invalidated provision staying discovery once an anti-SLAPP motion is filed. But the city’s court system has the power to adopt a rule to implement an automatic stay of discovery after an anti-SLAPP motion is filed. Such a rule would need to be adopted by the Superior Court, the trial court in the District, and “shall not take effect until approved by” the Court of Appeals.
[1] D.C. Code § 16-5501 through § 16-5505.
[2] Morgan Banks v. Hoffman, No. 20-CV-0318 (D.C. Sep. 7, 2023).
[3] Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1235, 1262 (D.C. 2016).
[5] In Doe v. Burke, 133 A.3d 569, 578 (D.C. 2016), the court held that a successful SLAPP movant is entitled to “a presumptive award of reasonable attorney’s fees,” unless special circumstances would make that award unjust.
