In late March, David Pitts filed suit against two local television stations (Channels 4 and 7), their parent companies, and Patch Media, which runs hyperlocal websites. According to the Superior Court Complaint, Pitts was sentenced in March 2015 for burglary and identity theft. He alleges that, on or about March 20, 2015, “Defendants” reported that he had been sentenced to “two years in jail for setting fires, or arson,” citing to a Channel 4 article.

Pitts alleges that he was never charged with, or admitted to, arson. He alleges that he learned about the allegedly false and defamatory statements when he was released from jail in July 2015. He alleges that, despite a takedown request from his attorneys in November 2015, the webpages remain publicly available. Pitts alleges that the statements give rise to claims for defamation, false light/invasion of privacy and intentional infliction of emotional distress.

The defendants have now filed separate anti-SLAPP motions (broadcast defendants’ anti-SLAPP motion here; Patch anti-SLAPP motion here). Both motions argue that Pitts’ complaint is subject to the DC anti-SLAPP statute because it arises from an act in furtherance of the right of advocacy on issues of public interest. The motions first argue that their communications to the public were about a crime, which easily qualifies as an issue of public interest. They also argue that the communications were about a pending criminal proceeding, which also qualifies as an act in furtherance of the right of advocacy on issues of public interest. These arguments are strong and should shift the burden to Pitts to show that he is likely to prevail on the merits. Both motions argue he cannot do so.

The broadcast defendants’ anti-SLAPP motion admits that they published articles on March 20, 2015, reporting on Pitts’ sentencing, but argues that those articles cannot be reasonably interpreted as reporting that Pitts was sentenced for arson or that he intended to harm life or property, as he alleges in his Complaint.

The broadcast defendants next argue that, while their March 20 reports did include that Pitts admitted to setting fires, and that he was sentenced to prison for that conduct, those statements were substantially true. They attach a “proffer of facts,” which Pitts signed and acknowledged was “true and correct,” and which includes the following statements:

  • on September 4, 2014, at approximately 12:50am, “the defendant set a chair and bottles on fire near the parking attendant booth of the parking garage at Foxhall Square.”
  • “The Defendant then walked to part of the complex near the Starbucks and lit some newspapers on fire on the ground.”
  • “This fire self-extinguished, and the defendant returned and lit the newspapers on fire again.”
  • “Then, at approximately 1:00am, the defendant walked to a wooded area near the adjacent Embassy Park complex, and set a small fire in a wooded area. This fire grew, and had to be extinguished by the D.C. Fire Department.”

The broadcast defendants also cite to the sentencing hearing transcript, where the government argued that it was seeking a one-year prison sentence, in part, because of the fires, and the trial judge stated that she considered the fire-setting in determining Pitts’ sentence. These facts, the broadcast defendants argue, show that their reports were substantially true. Finally, the broadcast defendants argue, their reports were fair and accurate reports of court proceedings, and are thus protected by the common-law fair report privilege. For all these reasons, the broadcast defendants argue that the defamation and intertwined related torts fail as a matter of law.

The broadcast defendants note that Pitts’ complaint references a Channel 4 article. They argue that this article was published in January 2015, so that any claims based upon it are barred by the District’s one-year statute of limitations for defamation actions. This is the one argument by the broadcast defendants that gave me some pause. Under D.C. Code § 12-302(a)(3), “when a person entitled to maintain an action is, at the time the right of action accrues . . . imprisoned . . . he or his proper representative may bring action within the time limited after the disability is removed.”

Thus, in Von Kahl v. Bureau of Nat. Affairs, Inc., a DC federal court rejected the defendant’s argument that a libel claim was time barred, explaining that “the limitations period is tolled since plaintiff has been continuously incarcerated since the claims arose.” In Brown v. Jonz, DC’s highest court held that “[a]lthough ‘imprisoned’ under D.C. Code § 12-302(a)(3) is not defined in the statute, the plain and ordinary meaning of this term is broad enough to encompass pretrial detention and other forms of confinement.” Here, to the extent Pitts was incarcerated at the time of the January 2015 article, he might be able to argue that the limitations period was tolled until his release in July 2015, making his March 2016 suit timely.

The remaining defendant, Patch Media, filed its own anti-SLAPP motion. In it, Patch explains that it did not publish any articles in March 2015, and only published two articles in September 2014, which were substantially true because they fairly and accurately relied upon the arrest report:

Patch accurately reported Plaintiff’s arrest following a burglary and a series of fires that Plaintiff admitted setting. Patch never made any of the false allegations that Plaintiff complains of, including never using the word “arson” or claiming that Plaintiff was sentenced to two years in jail. . . . [G]iven Plaintiff’s unavoidable inability to avoid this privilege, it is impossible for Plaintiff’s claims to succeed on their merits.

Patch argues that Pitts’ allegation that “Defendants” published a defamatory article, while citing only to one article by another defendant, is insufficient to plead a plausible cause of action against Patch. Finally, argues, Patch, DC’s one-year defamation statute of limitations has long since run on Patch’s September 2014 articles, so that any claim by Pitts that is based on those two articles is time barred, and this statute of limitations applies to the related torts that arise out of the allegedly defamatory publication (i.e., the claims for false light/invasion of privacy and intentional infliction of emotional distress).

My two cents: The March 20 articles appear to be fair and accurate reports of the sentencing hearing and any errors appear minor, so that they would not have changed the impression in the mind of a reasonable reader. Any claim based on the September 2014 Patch articles or the January 2015 Channel 4 article appears to be time-barred, unless Pitts was incarcerated during this entire time, in which case he might be able to argue that the statute was tolled. Even if the statute was tolled, the September 2014 Patch articles appear to fairly and accurately reflect the arrest report.

Pitts’ best chance of survival is to show that the January 2015 Channel 4 article is not time barred (because of his incarceration) and that it falsely reported that he “pleaded guilty this week to setting several small fires,” when, in fact, he pleaded guilty to burglary and identity theft. It will then be up to the court to decide if there is a material difference between reporting that Pitts “pleaded guilty to setting several small fires” or reporting that he pleaded guilty to burglary and identity theft and admitted to setting several small fires.

Update: A joint stipulation of dismissal with prejudice has now been filed with the Court, ending the case.