The defendants in the Sherrod v. Breitbart case have filed their opening brief in the DC Circuit. 

As you may recall, Judge Leon’s Statement of Reasons, explaining why he denied the anti-SLAPP motion in his minute Order, stated that it was denied because: (a) the lawsuit was filed six weeks before the statute became effective and there was no indication that it was intended to apply retroactively; (b) the statute is inapplicable in federal court, which is required to apply federal procedural law under Erie; and (c) the motion was not timely made.

Almost ½ of the appellate brief is spent detailing the charged environment in which the video was published and Breitbart’s comments were made, explaining that they were made while the Tea Party and the NAACP were involved in a heated battle over whether there were racists in the other.  Against this backdrop, and when placed in this context, the brief argues, Breitbart’s comments about Sherrod, was non-actionable, protected opinion. 

The remainder of the brief is devoted to the procedural hurdles that I have discussed at length before (here, here, here, and here).  First, on whether the anti-SLAPP statute applies in federal court (aka “the Erie issue”), the brief asserts that “[t]he three appellate courts that have decided the issue to date – the First, Fifth and Ninth Circuits – have all concluded that anti-SLAPP statutes are generally applicable in federal courts under Erie R.R. v. Tompkins, 304 U.S. 64 (1938).” 

Explaining that, in Shady Grove Orthopedics Assocs. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010), Justice Stevens supplied the critical fifth vote for the majority’s 5-4 opinion, and wrote that the court must first determine “whether the scope of the federal rule is sufficiently broad to control the issue, thereby leaving no room for the operation of seemingly conflicting state law,” the Breitbart brief argues that the DC anti-SLAPP statute does not conflict with the Federal Rules of Civil Procedure, and thus applies in federal court. 

The brief noted that Judge Wilkins’ ruling in 3M v. Boulter reached a different conclusion, but argues that it “fails to cite any precedent where the Supreme Court, this Court, or any other court expressly stated that Rules 12 and 56 exclusively control any pretrial adjudication.”  (emphasis in original).

The brief also responds to the conclusion in the Statement of Reasons that the anti-SLAPP motion was not timely made and does not apply retroactively.  On the timeliness of its motion, while the suit was filed on February 11, 2011; the statute requires an anti-SLAPP motion to be filed within 45 days of service; and Breitbart’s motion was not filed until April 18, 2011; Breitbart’s brief explains that his deadline for filing a response to the Complaint was extended by the Court, and thus timely made. 

While the Statement of Reasons stated that the suit was filed before the statute went into effect, and there was no indication that it applied retroactively, Breitbart’s brief argues that the suit was filed after the legislation was passed by the DC Council and signed by the mayor, and that other courts have concluded that anti-SLAPP motions apply to pending cases.  It argues that the legislative history of the DC Anti-SLAPP statute confirms that the statute was intended to apply to pending cases.

The brief argues that, even if the statute did not apply to pending cases, it applies “retroactively” if it is purely procedural.  Breitbart argues that the DC anti-SLAPP statute is exactly that:

There is no change in the legal or substantive consequences for any conduct alleged in the complaint that occurred prior to the Act’s enactment.  The elements of libel remain the same today as they were before the Act was passed.  If the Blog Post was actionable when Sherrod filed her suit, it would remain actionable – notwithstanding the later enactment of the Act.  Accordingly, even if the District Court was correct that a retroactivity analysis was required, it should have found that the statute must be retroactively applied because it did not change the substantive law of libel.

Finally, the brief argues that the appellate court has jurisdiction under the collateral order doctrine.  It states that the “Ninth, Fifth and First Circuit Courts of Appeal have ruled that appellate jurisdiction exists under the collateral order doctrine for appeals of orders pursuant to state anti-SLAPP laws,” and argues that the DC Circuit should follow these decisions.  Noting that immediate appeal of decisions involving double jeopardy, qualified immunity, sovereign immunity, the Speech & Debate clause, and presidential immunity, the brief argues that the interest at issue here – “protecting the First Amendment rights of speakers on matters of public concern and preventing the ‘chilling effect’ this case would have on the ‘exercise of constitutionally protected rights’ is no less important than the other enumerated interests found worthy of protection in this area.”