The DC anti-SLAPP statute has been invoked in a Superior Court lawsuit in which plaintiffs arguing that students need to be free from disruptions in the school environment are facing off against anti-abortion protestors.

According to a complaint filed by the Two Rivers Charter School, anti-abortion protestors have been vocally protesting the construction of a Planned Parenthood facility that is adjacent to its elementary school building and across the street from its middle school building. Two Rivers alleges that the protestors have yelled anti-abortion statements at students and parents and that one protestor repeatedly approached students and parents and attempted to hand them brochures. It alleges that the defendants’ conduct constitutes an intentional infliction of emotional distress, a private nuisance and is part of a conspiracy, and seeks an order requiring the protestors “to be moved a reasonable and safe distance from the location of Two Rivers’ buildings.”

Several of the defendants have filed anti-SLAPP motions. Their briefs (here, here, here and here), generally argue that the lawsuit arises from an oral statement made “in a place open to the public or a public forum in connection with an issue of public interest,” and thus falls within the scope of the DC anti-SLAPP statute. The motions argue that Two Rivers cannot show a likelihood of success on the merits because the defendants’ conduct is similar to that upheld by the Supreme Court in Snyder v. Phelps.

There, the Court held that protestors could not be held liable for intentional infliction of emotional distress because the First Amendment protected their speech (protests at the funerals of US military members) that was made on a public sidewalk, about an issue of public concern. Here, the defendants argue, their speech is “plainly protected under the First Amendment. It addressed a matter of public import, and it was expressed publicly on the public ways.” The defendants also argue that District courts have previously rejected attempts to stop similar protests. Finally, they argue, Two Rivers lacks standing to assert claims on behalf of its students and their parents.

Two Rivers’ opposition brief first argues that its complaint is not a SLAPP because it “does not involve one side of a public debate conjuring up a lawsuit solely to silence or intimidate their opposition.” Rather, Two Rivers explains, it “takes neither side in the larger cultural debate that is the focus of Defendants’ efforts,” and is seeking only a safe environment for its students: “Plaintiffs object only to Defendants’ methods of expressing their views, and would have the same opposition irrespective of the message carried by a group of strangers to the school who interfere with the operation of the school and its students and pose a safety risk.”

The defendants’ reply briefs take exception to the argument that the complaint somehow falls outside the statute’s protection, with Cirignano arguing that “no provision of the act exempts otherwise covered claims based on the viewpoint or motives of the claimant,” and Nicdao arguing that “[t]he motives and ideology of the plaintiffs are irrelevant.” Indeed, the DC Court of Appeals held, just last month in Burke II, that

“nowhere does the Act refer to or define a ‘classic’ SLAPP suit as distinct from one against which the defendant may invoke the statute’s protections after a threshold prima facie showing. . . . The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs. . .”.

This statement would appear to support the defendants’ arguments that Two Rivers’ motivations are not relevant to determining whether the statute applies to the case.

Turning to the merits, Two Rivers argues that two of the anti-SLAPP motions were filed too late. Although the DC anti-SLAPP statute provides 45 days for the filing of an anti-SLAPP motion, Two Rivers notes that one motion (Cirignano) was made on the 46th day and another (Weiler) was filed on the 47th day after service of the complaint.

In Newmyer v. Huntington, the Superior Court suggested that it might be willing to overlook an untimely-filed anti-SLAPP motion: “if the Court viewed Dr. Huntington’s counter-suit as a purely strategic effort to silence Mr. Newmyer, or to punish him for exercising his right to bring his lawsuit, the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five framework.” Because the Newmyer court rejected the anti-SLAPP motion on other grounds, however, it did not reach this issue. (The DC Court of Appeals later stated that the Newmyer anti-SLAPP motion was properly denied because, among other reasons, it was filed too late). On the other hand, in Sherrod v. Breitbart, the DC Circuit held that an anti-SLAPP motion filed beyond 45 days was untimely because the deadline was “statutory” and could not be extended by parties or the court.

Cirignano’s reply brief argues, however, that, because the 45th day fell on a Sunday, he timely filed his anti-SLAPP brief the next business day, as allowed by the DC Superior Court Rules. This question, of whether the time for filing an anti-SLAPP motion extends to the next business day when the 45th day falls on a weekend or holiday, has not been decided under the DC anti-SLAPP statute. (Weiler asserts that he was not served on December 19, as Two Rivers maintains, but was rather served on December 22, making his motion timely. Again, it will be interesting to see how the Superior Court resolves this factual dispute).

Two Rivers’ opposition brief also appears to argue that protests here are materially different from the protests in Snyder, and thus do not arise from “an act in furtherance of the right of advocacy on issues of public interest”: “Defendants primarily targeted the students and the school, rather than addressing a broader audience about society’s ills, as in Snyder. Defendants’ speech should not be given the protection of the Anti-SLAPP Act for being a matter of public interest.” This argument is weak as it seems, at least to me, that the protests here fall within the scope of the statute. Indeed, each of the defendants attack this suggestion in their reply brief.

The remainder of the Two Rivers’ brief argues that, even if the defendants have satisfied their burden of showing that the suit arises from “an act in furtherance of the right of advocacy on issues of public interest,” the claim is likely to succeed on the merits. Two Rivers also asks the Court to schedule an evidentiary hearing, and allow Two Rivers to serve targeted discovery on the defendants.

This last point is interesting. Although the DC anti-SLAPP statute stays discovery until resolution of an anti-SLAPP motion, “[w]hen it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted.”

In opposing an anti-SLAPP motion filed against it, 3M argued that it should be allowed to serve discovery. I do not believe that court (which denied the anti-SLAPP motion on the basis that the DC statute was inapplicable in a federal court diversity case) allowed targeted discovery. Similarly, in opposing an anti-SLAPP filed against him, Joseph Farah, in passing, mentioned that targeted discovery would allow him to defeat the motion; the federal court there instead stayed all discovery and ultimately granted the anti-SLAPP motion.

On the local level, Michael Mann’s opposition to the anti-SLAPP motions filed against him argued that, if his evidence was somehow insufficient to overcome the anti-SLAPP motions, the Superior Court should allow targeted discovery. The Superior Court denied the anti-SLAPP motions, mooting the request.

Here, Two Rivers has identified the categories of discovery it believes are necessary to show a likelihood of success on the merits. In response, Cirignano argues that Two Rivers’ request “comprises thirteen broad categories of information which are indistinguishable from full merits discovery” and that Two Rivers has not shown how “the requested discovery is ‘likely’ to enable” Two Rivers to defeat the anti-SLAPP motions. Nicdao echoes these arguments and notes that the anti-SLAPP statute was enacted to prevent broad discovery, which is what Two Rivers is seeking, according to Nicdao.