For the third time in the past five years, a court has applied the DC anti-SLAPP statute to dismiss a defamation suit brought by a foreign official.

First was the lawsuit filed by Yasser Abbas, the son of the Palestinian President, against Foreign Policy Group and one of its reporters, alleging that they defamed him by asking whether he was profiting from his father’s connections. After full briefing on the defendants’ anti-SLAPP special motion to dismiss, the DC federal district court held that the defendants satisfied their burden of showing that the suit arose from “an act in furtherance of the right of advocacy on issues of public interest” because: (1) Abbas was a limited purpose public figure; (2) the issue of US aid to the Palestinian Authority and attendant corruption was an issue of public interest; and (3) the challenged statements were made in a public forum (the internet).

The district court granted the defendants’ anti-SLAPP special motion to dismiss, holding that Abbas could not show that he was likely to prevail on the merits because the questions posed by the article were not statements of fact capable of supporting a claim for defamation. On appeal, the DC Circuit held that the DC anti-SLAPP statute could not be applied in a federal court diversity case. It held, however, that dismissal was appropriate under Rule 12(b)(6) because the two questions posed by the article “are not factual representations.”

Next was Boley v. Atlantic Monthly Group. There, a former Liberian public official sued a monthly magazine and one of its reporters, alleging that they defamed him in two separate articles by calling him a warlord and claiming that his organization recruited and armed child soldiers. After briefing on the defendants’ anti-SLAPP special motion to dismiss, the DC federal district court held that, because the challenged statements were made in a public forum (the internet), because Boley was a public figure, and because the subject of the articles (alleged commission of war crimes) was a matter of public interest, the defendants satisfied their burden of showing that the suit arose from “an act in furtherance of the right of advocacy on issues of public interest.” (The DC federal district court’s Boley decision came before the DC Circuit held that the DC anti-SLAPP statute was inapplicable in a federal court diversity case).

The district court held that Boley had no likelihood of success on the merits because the challenged statements were protected by the fair report and fair comment privileges, because the reporter’s characterization of Boley as “evil” was not a verifiable statement of fact, and because there was no evidence showing that the challenged statements were made with actual malice, as required to sustain a claim against a public figure. It granted the defendants’ anti-SLAPP special motion to dismiss. There was no appeal.

Now comes Gyude Moore, who alleges that he is the current Minister of Public Works in Liberia. This summer, he sued Henry Costa, a Delaware-based radio host, and alleged that Costa defamed him by: (a) asserting that Moore awarded contracts for personal gain; (b) describing him as “corrupt”; (c) stating that Moore received a kickback; and (d) stating that Moore received a car as a gift. Moore alleged that these statements were false, and that they injured his reputation.

If Costa had removed the case to federal court, he would have lost the ability to file an anti-SLAPP special motion to dismiss. So the case remained in Superior Court, and Costa responded with an anti-SLAPP special motion to dismiss. Costa argued that the suit arose from “an act in furtherance of the right of advocacy on issues of public interest” because the challenged statements concerned suspected corruption by Moore, because Moore was a public figure, and because the statements were made in a public forum (the internet and radio). Costa argued that Moore was not likely to succeed on the merits because he could not show that the challenged statements were made with actual malice, they were protected opinions, and they were rhetorical hyperbole.

Moore’s opposition argued that Costa had not established a prima facie case of showing that the suit arose from “advocacy on issues of public interest” because, even if he was a public figure, his conduct, without more, should not be construed to be about an issue of public interest. Moore further argued that, in any event, because he submitted an affidavit denying that he accepted any bribes or kickbacks, this satisfied his burden of showing a substantial likelihood of success on the merits.

With respect to actual malice, Moore argued that there was evidence suggesting that Costa had not conducted an adequate investigation before making the challenged statements, and noted that Costa continued his statements after receiving a cease-and-desist letter from Moore’s counsel. Moore conceded, however, that “[i]t is impossible for Plaintiff to prove conclusively, at this preliminary stage of proceedings, that Defendant acted with malice . . .”.

This concession was ultimately fatal to Moore’s complaint. First, the Superior Court easily concluded that Costa had established a prima facie case of showing that the suit arose from “an act in furtherance of the right of advocacy on issues of public interest” because the challenged statements were made on the radio/internet (a public forum), by a limited-purpose public figure. Having done so, the burden shifted to Moore to show that the claim was likely to succeed on the merits.

The Superior Court held that Moore could not show that the challenged statements were made with actual malice. It explained that “Plaintiff’s actions after receiving the cease-and-desist letter are not clear and convincing evidence of malice,” “Defendant’s failure to explain his sources does not constitute actual malice,” and Costa’s alleged failure to fully investigate or pursue certain leads or review certain documents “might be evidence of negligence,” but was insufficient to show actual malice. As a result, the Superior Court dismissed the suit with prejudice and indicated a willingness to award Costa his fees and costs.