Yasser Abbas v. Foreign Policy Group, LLC , 783 F.3d 1328 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2014 Decided April 24, 2015
No. 13-7171
YASSER ABBAS,
APPELLANT
v.
FOREIGN POLICY GROUP, LLC AND JONATHAN SCHANZER,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01565)
Louis G. Adolfsen argued the cause for appellant. With
him on the briefs was S. Dwight Stephens.
Kevin T. Baine argued the cause for appellees. With him
on the brief were Adam R. Tarosky, James M. McDonald,
Nathan E. Siegel, Seth D. Berlin, and Shaina J. Ward.
Irvin B. Nathan, Attorney General, Office of the Attorney
General for the District of Columbia, Ariel B.
Levinson-Waldman, Senior Counsel to the Attorney General,
Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy
Solicitor General, and Rebecca P. Kohn, Assistant Attorney
General, were on the brief for the District of Columbia as
2
amicus curiae in support of the District of Columbia Anti-
SLAPP Act’s applicability in federal diversity cases.
Laura R. Handman, Alison Schary, Thomas R. Burke,
Richard A. Bernstein, Kevin M. Goldberg, Karen Kaiser,
Jonathan Bloom, Randy L. Shapiro, Jonathan D. Hart, Mark
H. Jackson, Jason P. Conti, Jacob P. Goldstein, Oscar Grut,
David Giles, Susan E. Seager, Barbara W. Wall, Jonathan
Donnellan, Kristina Findikyan, Karole Morgan-Prager, Juan
Cornejo, Sandra S. Baron, Kathleen A. Hirce, Charles D.
Tobin, Mickey H. Osterreicher, Greg Lewis, Denise Leary,
Ashley Messenger, Susan Weiner, David E. McCraw, Mark H.
Jackson, Kurt Wimmer, Richard J. Tofel, Bruce D. Brown,
Gregg P. Leslie, Gail Gove, Bruce W. Sanford, Laurie A.
Babinski, Karen H. Flax, Julie Xanders, Ed Lazarus, John B.
Kennedy, and James A. McLauglin were on the brief for amici
curiae Media Organizations in support of appellees.
Before: KAVANAUGH and SRINIVASAN, Circuit Judges,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Yasser Abbas is the son of
current Palestinian leader Mahmoud Abbas. In 2012, the
Foreign Policy Group published an article on its website
about Yasser Abbas and his brother Tarek. At the outset, the
article asked two questions: “Are the sons of the Palestinian
president growing rich off their father’s system?” and “Have
they enriched themselves at the expense of regular
Palestinians – and even U.S. taxpayers?”
In response to the questions posed in the article, Yasser
Abbas filed suit in the U.S. District Court for the District of
3
Columbia against the Foreign Policy Group and the article’s
author, Jonathan Schanzer. Abbas alleged defamation under
D.C. law. But the D.C. Anti-Strategic Lawsuits Against
Public Participation Act of 2010 (known as the Anti-SLAPP
Act) requires courts, upon motion by the defendant, to dismiss
defamation lawsuits that target political or public advocacy,
unless the plaintiff can show a likelihood of success on the
merits. Applying the D.C. Anti-SLAPP Act, the District
Court dismissed Abbas’s defamation complaint.
Abbas now appeals. He contends that a federal court
exercising diversity jurisdiction may not apply the D.C. Anti-
SLAPP Act’s special motion to dismiss provision. In Abbas’s
view, the D.C. provision makes it easier for defendants to
obtain dismissal of a case before trial than the more plaintiff-
friendly standards in Rules 12 and 56 of the Federal Rules of
Civil Procedure. Citing the Supreme Court’s decision in
Shady Grove Orthopedic Associates, P.A. v. Allstate
Insurance Co., 559 U.S. 393 (2010), Abbas says we must
follow the Federal Rules, not the D.C. Anti-SLAPP Act, in
this federal court proceeding. We agree with Abbas on that
point. But we affirm the District Court’s judgment on an
alternative ground: Under Federal Rule 12(b)(6), Abbas’s
allegations do not suffice to make out a defamation claim
under D.C. law.
I
A
Many States have enacted anti-SLAPP statutes to give
more breathing space for free speech about contentious public
issues. Those statutes “try to decrease the ‘chilling effect’ of
certain kinds of libel litigation and other speech-restrictive
litigation.” Eugene Volokh, The First Amendment and
Related Statutes 118 (5th ed. 2014). The statutes generally
4
accomplish that objective by making it easier to dismiss
defamation suits at an early stage of the litigation.
Like the various States’ anti-SLAPP laws, the D.C. Anti-
SLAPP Act makes it easier for defendants sued for
defamation and related torts to obtain quick dismissal of
harassing lawsuits. The D.C. Council passed the Act in 2010
in response to what the Council described as an upsurge in
“lawsuits filed by one side of a political or public policy
debate aimed to punish or prevent the expression of opposing
points of view.” Council of the District of Columbia,
Committee on Public Safety and the Judiciary, Report on Bill
18-893, at 1 (Nov. 18, 2010).
Under the Act as relevant here, a defendant may file a
special motion to dismiss “any claim arising from an act in
furtherance of the right of advocacy on issues of public
interest.” D.C. Code § 16-5502(a). To obtain dismissal, the
defendant first must make a “prima facie showing that the
claim at issue arises from an act in furtherance of the right of
advocacy on issues of public interest.” Id. § 16-5502(b). If
the defendant makes that prima facie showing, then the
plaintiff must demonstrate that “the claim is likely to succeed
on the merits.” Id. If the plaintiff makes that showing, the
defendant’s special motion to dismiss must be denied.
Otherwise, the special motion to dismiss must be granted. See
id. (As we will see, that likelihood of success requirement is
important to this case.) While a special motion to dismiss is
pending, discovery is stayed except for limited purposes. Id.
§ 16-5502(c). A defendant who prevails on a special motion
to dismiss may recover the costs of litigation, including
reasonable attorney’s fees. Id. § 16-5504(a).
5
B
Yasser Abbas is the son of Palestinian leader Mahmoud
Abbas and is a businessman with substantial commercial
interests in the Middle East. Yasser Abbas and his brother
Tarek were featured in “The Brothers Abbas,” an article by
Jonathan Schanzer published by Foreign Policy Group on its
website.
Schanzer’s article addresses the Abbas brothers’ wealth
and its possible sources. The article’s subtitle poses a
question: “Are the sons of the Palestinian president growing
rich off their father’s system?” The first paragraph asks a
similar question: “Have they enriched themselves at the
expense of regular Palestinians – and even U.S. taxpayers?”
The article recounts allegations of corruption that a
former economic advisor to Yasir Arafat made against
Mahmoud Abbas. It then describes the “conspicuous wealth”
of Yasser and Tarek Abbas. Noting that the brothers’ success
“has become a source of quiet controversy in Palestinian
society,” the article describes their credentials and business
ventures in some detail. In discussing Yasser Abbas, the
article acknowledges that the “president’s son is certainly
entitled to do business in the Palestinian territories. But the
question is whether his lineage is his most important
credential – a concern bolstered by the fact that he has
occasionally served in an official capacity for the Palestinian
Authority.” Finally, the article notes that “the Abbas brothers
have largely dropped out of sight,” but that Palestinians
continue to whisper about the source of the brothers’ success.
In response to the article, Yasser Abbas filed a D.C.-law
defamation suit in the U.S. District Court for the District of
Columbia against the Foreign Policy Group and Schanzer.
6
Abbas’s defamation claims rest on the two questions posed at
the outset of the article. See Compl. ¶¶ 46-94.
The Foreign Policy Group and Schanzer moved to
dismiss the complaint under the special motion to dismiss
provision of the D.C. Anti-SLAPP Act. They also moved to
dismiss under Federal Rule of Civil Procedure 12(b)(6). The
District Court granted the defendants’ special motion to
dismiss under the D.C. Anti-SLAPP Act, dismissed Abbas’s
complaint with prejudice, and denied the defendants’ Rule
12(b)(6) motion as moot. Abbas v. Foreign Policy Group,
LLC, 975 F. Supp. 2d 1, 20 (D.D.C. 2013). Abbas promptly
appealed.
II
The first issue before the Court is whether a federal court
exercising diversity jurisdiction may apply the D.C. Anti-
SLAPP Act’s special motion to dismiss provision. The
answer is no. Federal Rules of Civil Procedure 12 and 56
establish the standards for granting pre-trial judgment to
defendants in cases in federal court. A federal court must
apply those Federal Rules instead of the D.C. Anti-SLAPP
Act’s special motion to dismiss provision.
A
A federal court exercising diversity jurisdiction should
not apply a state law or rule if (1) a Federal Rule of Civil
Procedure “answer[s] the same question” as the state law or
rule and (2) the Federal Rule does not violate the Rules
Enabling Act. Shady Grove Orthopedic Associates, P.A. v.
Allstate Insurance Co., 559 U.S. 393, 398-99 (2010) (majority
7
opinion) (citing Hanna v. Plumer, 380 U.S. 460, 463-64
(1965)). 1
For the category of cases that it covers, the D.C. Anti-
SLAPP Act establishes the circumstances under which a court
must dismiss a plaintiff’s claim before trial – namely, when
the court concludes that the plaintiff does not have a
likelihood of success on the merits. But Federal Rules of
Civil Procedure 12 and 56 “answer the same question” about
the circumstances under which a court must dismiss a case
before trial. And those Federal Rules answer that question
differently: They do not require a plaintiff to show a
likelihood of success on the merits. 2
That difference matters. Under the Federal Rules, a
plaintiff is generally entitled to trial if he or she meets the
Rules 12 and 56 standards to overcome a motion to dismiss or
for summary judgment. But the D.C. Anti-SLAPP Act
nullifies that entitlement in certain cases. Under the D.C.
Anti-SLAPP Act, the plaintiff is not able to get to trial just by
meeting those Rules 12 and 56 standards. The D.C. Anti-
SLAPP Act, in other words, conflicts with the Federal Rules
by setting up an additional hurdle a plaintiff must jump over
to get to trial.
In particular, under Federal Rule 12(b)(6), a plaintiff can
overcome a motion to dismiss by simply alleging facts
1
In Shady Grove, Parts I and II-A of Justice Scalia’s opinion
commanded a majority of the Court. Those sections govern our
analysis of whether a federal rule answers the same question as a
state law.
2
Although D.C. is not a state, Shady Grove’s two-part
framework applies to federal court cases involving a local D.C. law.
See Burke v. Air Serv International, Inc., 685 F.3d 1102, 1107-08
(D.C. Cir. 2012).
8
sufficient to state a claim that is plausible on its face. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
well-pleaded complaint “may proceed even if it strikes a
savvy judge that actual proof of the facts alleged is
improbable.” Id. at 556. If the complaint survives a motion
to dismiss, a defendant may still move before trial for
summary judgment under Rule 56. But Rule 56 permits
summary judgment only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Rules 12 and 56 help form “an integrated program” for
determining whether to grant pre-trial judgment in cases in
federal court. Makaeff v. Trump University, LLC, 715 F.3d
254, 274 (9th Cir. 2013) (Kozinski, J., concurring); see also
Makaeff v. Trump University, LLC, 736 F.3d 1180, 1188 (9th
Cir. 2013) (Watford, J., dissenting from denial of rehearing en
banc) (Rules 12 and 56 “establish the exclusive criteria for
testing the legal and factual sufficiency of a claim in federal
court.”).
In short, unlike the D.C. Anti-SLAPP Act, the Federal
Rules do not require a plaintiff to show a likelihood of
success on the merits in order to avoid pre-trial dismissal.
Under Shady Grove, therefore, we may not apply the D.C.
Anti-SLAPP Act’s special motion to dismiss provision.
To avoid that conclusion, the defendants in this case
advance four basic arguments.
First, the defendants try to portray the D.C. Anti-SLAPP
Act’s special motion to dismiss provision as functionally
identical to Federal Rule 56’s summary judgment test. They
creatively argue that the D.C. Anti-SLAPP Act’s likelihood of
success standard is just another way of describing the federal
test for summary judgment. As they see it, the D.C. Anti-
9
SLAPP Act therefore does not conflict with the Federal
Rules’ comprehensive scheme for testing the sufficiency of a
complaint. And they further say that state rules that answer
the same question in the same way as the Federal Rules are
not preempted under Shady Grove. Therefore, in their view,
the D.C. Anti-SLAPP Act, taken as a whole, does not alter the
standard for pre-trial dismissal or summary judgment, but
simply layers a right to attorney’s fees in this category of
cases on top of the existing federal procedural scheme. See
D.C. Code § 16-5504 (D.C. Anti-SLAPP Act attorney’s fees
provision).
The main problem with the defendants’ theory is that it
requires the Court to re-write the special motion to dismiss
provision. Had the D.C. Council simply wanted to permit
courts to award attorney’s fees to prevailing defendants in
these kinds of defamation cases, it easily could have done so.
But the D.C. Council instead enacted a new provision that
answers the same question about the circumstances under
which a court must grant pre-trial judgment to defendants.
Moreover, the D.C. Court of Appeals has never interpreted
the D.C. Anti-SLAPP Act’s likelihood of success standard to
simply mirror the standards imposed by Federal Rules 12 and
56. Put simply, the D.C. Anti-SLAPP Act’s likelihood of
success standard is different from and more difficult for
plaintiffs to meet than the standards imposed by Federal Rules
12 and 56. 3
3
An interesting issue could arise if a State anti-SLAPP act did
in fact exactly mirror Federal Rules 12 and 56. Would it still be
preempted under Shady Grove? As defendants’ argument suggests,
the answer to that question could matter for attorney’s fees and the
like. But we need not address that hypothetical here because, as we
have explained, the D.C Anti-SLAPP Act’s dismissal standard does
not exactly mirror Federal Rules 12 and 56.
10
Second, the defendants suggest that the special motion to
dismiss provision embodies a substantive D.C. right not found
in the Federal Rules – a form of qualified immunity shielding
participants in public debate from tort liability.
Qualified immunity heightens the substantive showing a
plaintiff must make in order to hold a defendant liable. To
over-simplify for present purposes, qualified immunity allows
defendants to avoid liability even when they may have
violated the law so long as they acted reasonably. Qualified
immunity (on its own) does not tell a court what showing is
necessary at the motion to dismiss or summary judgment
stages in order to dismiss a case before trial. Rather, Federal
Rules 12 and 56 do that. The D.C. Anti-SLAPP Act, to use
the words of the D.C. Court of Appeals, establishes a new
“procedural mechanism” for dismissing certain cases before
trial. Doe No. 1 v. Burke, 91 A.3d 1031, 1036 (D.C. 2014).
And it differs from those Federal Rules.
Third, the defendants briefly point to the Private
Securities Litigation Reform Act of 1995, which modified the
pleading standards applicable in certain categories of
securities cases. Pub. L. No. 104-67, 109 Stat. 737 (1995).
They cite that Act as evidence that Federal Rules 12 and 56
do not foreclose the application of other pleading standards.
But Congress, unlike the States or the District of Columbia,
“has ultimate authority over the Federal Rules of Civil
Procedure; it can create exceptions to an individual rule as it
sees fit – either by directly amending the rule or by enacting a
separate statute overriding it in certain instances.” Shady
Grove, 559 U.S. at 400 (majority opinion). Congress’s
decision to enact a heightened pleading standard for a small
subset of federal question cases does not change the fact that
Rules 12 and 56 otherwise “apply generally.” Id.11
Fourth, the defendants cite some other courts that have
applied State anti-SLAPP acts’ pretrial dismissal provisions
notwithstanding Federal Rules 12 and 56. See, e.g., Godin v.
Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); Henry v. Lake
Charles American Press, L.L.C., 566 F.3d 164, 168-69 (5th
Cir. 2009); United States ex rel. Newsham v. Lockheed
Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); see
generally Charles Alan Wright et al., 19 Federal Practice &
Procedure § 4509 (2d ed. 2014). That is true, but we agree
with Judge Kozinski and Judge Watford that those decisions
are ultimately not persuasive. See Makaeff, 736 F.3d at 1188
(Watford, J., dissenting from denial of rehearing en banc)
(“California’s anti-SLAPP statute impermissibly supplements
the Federal Rules’ criteria for pre-trial dismissal of an
action.”); Makaeff, 715 F.3d at 275 (Kozinski, J., concurring)
(“Federal courts have no business applying exotic state
procedural rules which, of necessity, disrupt the
comprehensive scheme embodied in the Federal Rules.”).
In short, Federal Rules 12 and 56 answer the same
question as the Anti-SLAPP Act’s special motion to dismiss
provision. Under Shady Grove, Rules 12 and 56 therefore
govern in diversity cases in federal court, unless Rules 12 and
56 violate the Rules Enabling Act. 4 We turn now to that
question.
B
The Rules Enabling Act empowers the Supreme Court to
“prescribe general rules of practice and procedure and rules of
evidence” for cases in the lower federal courts. 28 U.S.C.
§ 2072(a). A Federal Rule of Civil Procedure violates the
4
Of course, the Federal Rule of Civil Procedure in question
would not govern if the Rule was unconstitutional in some respect.
There is no suggestion of unconstitutionality in this case.
12
Rules Enabling Act if it abridges, enlarges, or modifies any
substantive right. See id. § 2072(b). So far, the Supreme
Court has rejected every challenge to the Federal Rules that it
has considered under the Rules Enabling Act. See Shady
Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.,
559 U.S. 393, 407 (2010) (plurality opinion of Scalia, J.). We
need not take a long time here to explain that Federal Rules
12 and 56 are valid under the Rules Enabling Act.
In Shady Grove, the Supreme Court considered whether
the Rule at issue there, Rule 23 of the Federal Rules of Civil
Procedure, violated the Rules Enabling Act. The Court issued
no majority opinion on the test used to analyze whether a
Rule violates the Rules Enabling Act. Justice Scalia wrote an
opinion for four Justices, and Justice Stevens wrote an
opinion for only himself. The other four Justices did not
directly address that issue.
Justice Scalia’s plurality opinion for four Justices strictly
followed a prior Supreme Court precedent, Sibbach v. Wilson
& Co., 312 U.S. 1 (1941). See Shady Grove, 559 U.S. at 407-
10 (plurality opinion). In Sibbach, the Supreme Court held
that the test for whether a Federal Rule violates the Rules
Enabling Act is whether that Rule “really regulates
procedure” – that is, really regulates “the judicial process for
enforcing rights and duties recognized by substantive law and
for justly administering remedy and redress for disregard or
infraction of them.” Sibbach, 312 U.S. at 14; see Hanna v.
Plumer, 380 U.S. 460, 464, 470-71 (1965) (applying Sibbach
test). By contrast to Justice Scalia’s plurality opinion for four
Justices, Justice Stevens’s opinion in Shady Grove would
have distinguished and limited Sibbach. See Shady Grove,
559 U.S. at 427-28 (Stevens, J., concurring in part and
concurring in the judgment); cf. id. at 412 (plurality opinion)
13
(“In reality, the concurrence seeks not to apply Sibbach, but to
overrule it (or, what is the same, to rewrite it).”).
So four Justices adopted one formulation. One Justice
adopted a different formulation. And four Justices did not
address the question. What should we do in the face of such
an unresolved 4-1 disagreement? Neither the 4-Justice view
nor the 1-Justice view on its own is binding in these unusual
circumstances. Moreover, neither opinion can be considered
the Marks middle ground or narrowest opinion, as the four
Justices in dissent simply did not address the issue. See
generally Marks v. United States, 430 U.S. 188 (1977); cf.
United States v. Duvall, 740 F.3d 604, 609-11 (D.C. Cir.
2013) (Kavanaugh, J., concurring). In addition, on the precise
question before us – whether the governing standard is still
the Sibbach standard of “really regulates procedure” or
instead something else – no common conclusion was
articulated by the 4-Justice opinion and the 1-Justice opinion.
Therefore, the answer for us, in these particular
circumstances, is to follow the Supreme Court’s pre-existing
precedent in Sibbach. Unless and until the Supreme Court
overrules or narrows its decision in Sibbach, that case remains
good law and is binding on lower courts.
The Sibbach test is very simple to apply here. Under
Sibbach, any federal rule that “really regulates procedure” is
valid under the Rules Enabling Act. Sibbach, 312 U.S. at 14;
see also Shady Grove, 559 U.S. at 410 (plurality opinion)
(quoting that statement from Sibbach); Hanna, 380 U.S. at
464 (same). As the Supreme Court indicated in Shady Grove
(in a portion of the opinion that spoke for a majority),
pleading standards and rules governing motions for summary
judgment are procedural. See Shady Grove, 559 U.S. at 404(majority opinion) (pleading standards and rules governing
summary judgment are rules “addressed to procedure”). It
14
follows that Rules 12 and 56 are valid under the Rules
Enabling Act.
In sum, Federal Rules 12 and 56 answer the same
question as the D.C. Anti-SLAPP Act, and those Federal
Rules are valid under the Rules Enabling Act. A federal court
exercising diversity jurisdiction therefore must apply Federal
Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s
special motion to dismiss provision. 5
III
That conclusion does not end this appeal. The Court may
affirm a district court judgment on “any ground the record
supports” and that the “opposing party had a fair opportunity
to address.” Jones v. Bernanke, 557 F.3d 670, 676 (D.C. Cir.
2009) (internal quotation marks omitted); see Washington-
Baltimore Newspaper Guild, Local 35 v. Washington Post,
959 F.2d 288, 292 n.3 (D.C. Cir. 1992).
During the District Court proceedings, in addition to their
motion to dismiss under the D.C. Anti-SLAPP Act, the
defendants also filed a motion to dismiss Abbas’s complaint
under Federal Rule 12(b)(6). In their Rule 12(b)(6) motion,
the defendants argued that the complaint failed to state a
claim under D.C. defamation law. The parties fully briefed
that motion, but the District Court denied it as moot after
5
After granting or denying a special motion to dismiss under
the Anti-SLAPP Act, a court may grant attorney’s fees and costs to
the prevailing party. See D.C. Code § 16-5504. The Act does not
purport to make attorney’s fees available to parties who obtain
dismissal by other means, such as under Federal Rule 12(b)(6).
Therefore, although we conclude that the case should be dismissed
under Rule 12(b)(6), attorney’s fees under the Anti-SLAPP Act are
not available to the defendants in this case.
15
granting the defendants’ Anti-SLAPP Act special motion to
dismiss. Abbas v. Foreign Policy Group, LLC, 975 F. Supp.
2d 1, 20 (D.D.C. 2013). As appellees in this court, the
defendants have renewed their Rule 12(b)(6) arguments, and
both parties have briefed the issue. We agree with the
defendants that Rule 12(b)(6) requires dismissal of Abbas’s
complaint.
Dismissal under Rule 12(b)(6) is proper when a plaintiff
has failed to plead “enough facts to state a claim to relief that
is plausible on its face” and to nudge his claims “across the
line from conceivable to plausible.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
To establish liability for defamation under D.C. law,
Abbas must show, among other things, that the defendants
made a false and defamatory statement about him. See Doe
No. 1 v. Burke, 91 A.3d 1031, 1044 (D.C. 2014). 6
In this case, however, Abbas’s defamation claim focuses
not on statements made in the article but rather on two
6
To determine which jurisdiction’s laws govern Abbas’s
defamation claim, we apply the choice-of-law rules of the
jurisdiction in which we sit. Wu v. Stomber, 750 F.3d 944, 949
(D.C. Cir. 2014). D.C.’s choice-of-law rules “require that we apply
the tort law of the jurisdiction that has the most significant
relationship to the dispute.” Id. (internal quotation marks omitted).
That inquiry “requires that we consider where the injury occurred,
where the conduct causing the injury occurred, the domicile,
residence, nationality, place of incorporation and place of business
of the parties, and the place where the relationship is centered.” Id.(internal quotation marks omitted). In his complaint, Abbas alleges
that the conduct that caused his injury took place in the District of
Columbia. The defendants agree that D.C. law should govern. The
parties relied on D.C. defamation law in briefing this appeal. We
conclude that D.C. defamation law governs this dispute.
16
questions posed in the article: “Are the sons of the
Palestinian president growing rich off their father’s system?”
and “Have they enriched themselves at the expense of regular
Palestinians – and even U.S. taxpayers?”
Those questions are not factual representations. The
article does not say, for example, that the “sons of the
Palestinian president are growing rich off their father’s
system” and “have enriched themselves at the expense of
regular Palestinians and U.S. taxpayers.”
Although the D.C. courts have not confronted the issue of
whether questions can be defamatory, it is generally settled as
a matter of defamation law in other jurisdictions that a
question, “however embarrassing or unpleasant to its subject,
is not accusation.” Chapin v. Knight-Ridder, Inc., 993 F.2d
1087, 1094 (4th Cir. 1993). Questions indicate a defendant’s
“lack of definitive knowledge about the issue.” Partington v.
Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995). 7
For that reason, posing questions has rarely given rise to
successful defamation claims in other jurisdictions. See, e.g.,
id.; Beverly Hills Foodland, Inc. v. United Food &
Commercial Workers Union, Local 655, 39 F.3d 191, 195-96
(8th Cir. 1994); Chapin, 993 F.2d at 1094; Phantom Touring,
Inc. v. Affiliated Publications, 953 F.2d 724, 729-31 (1st Cir.
1992); 1 Robert D. Sack, Sack on Defamation § 2:4.8 (4th ed.
7
To be sure, as Judge Sack notes and as case law bears out,
questions that contain embedded factual assertions may sometimes
form the basis for a successful defamation claim. See 1 Robert D.
Sack, Sack on Defamation § 2:4.8 (4th ed. 2010) (quoting Chapin,
993 F.2d at 1094). For example, a question such as “Given that
Jones repeatedly abused children, why is he still employed by the
school district?” contains a factual assertion that Jones abused
children. But that is not what we have here.
17
2010). As Judge Sack’s treatise cogently explains, albeit in a
slightly different context, whether a question can give rise to a
successful defamation claim “is significant. Reporters
routinely and necessarily ask questions in order to obtain
information, and the mere asking of a question may cast a
shadow on the reputation of a person about whom the
question is asked. But a genuine effort to obtain information
cannot be defamatory. A contrary rule would render
legitimate reporting impossible.” 1 Sack on Defamation
§ 2:4.8. Questions can be posed to explore, to inquire, to
prompt further inquiry, to frame discussion, to initiate
analysis, and the like. But questions are questions.
As a federal court exercising diversity jurisdiction and
applying the general tenets of D.C. defamation law, we here
follow the widely adopted defamation principle that questions
are questions. After all, just imagine the severe infringement
on free speech that would ensue in the alternative universe
envisioned by Abbas. Is the Mayor a thief? Is the
quarterback a cheater? Did the Governor accept bribes? Did
the CEO pay her taxes? Did the baseball star take steroids?
Questions like that appear all the time in news reports and on
blogs, in tweets and on cable shows. And all such questions
could be actionable under Abbas’s novel defamation theory.
But D.C. law has not previously extended defamation liability
to those kinds of questions.
Of course, some commentators and journalists use
questions – such as the classic “Is the President a crook?” – as
tools to raise doubts (sometimes unfairly) about a person’s
activities or character while simultaneously avoiding
defamation liability. After all, a question’s wording or tone or
context sometimes may be read as implying the writer’s
answer to that question. But to make out a defamation by
implication claim even in cases involving affirmative
18
statements, D.C. law requires an “especially rigorous
showing.” Guilford Transportation Industries, Inc. v. Wilner,
760 A.2d 580, 596 (D.C. 2000) (quoting Chapin, 993 F.2d at
1092-93). And Abbas has not cited any D.C. case allowing a
defamation by implication claim based on mere questions.
The reason for the absence of such D.C. case law seems
evident. There is no good or predictable way to neatly divide
(i) the questions that are routinely posed in America’s robust
public forums from (ii) the kinds of questions that would be
actionable as defamation by implication under Abbas’s
theory. Abbas’s theory would thus necessarily ensnare a
substantial amount of speech that is essential to the
marketplace of ideas and would dramatically chill the
freedom of speech in the District of Columbia. We will not
usher D.C. law down such a new and uncertain road.
In short, the questions posed in the article at issue in this
case do not suffice for Abbas to make out a defamation claim
under D.C. law. The defendants are therefore entitled to
dismissal of Abbas’s defamation claim under Rule 12(b)(6). 8
IV
Applying the Anti-SLAPP Act, the District Court
dismissed Abbas’s complaint with prejudice. Although we
have relied on alternative grounds to affirm the dismissal, we
likewise conclude that dismissal should be with prejudice.
Dismissal with prejudice is warranted when “the allegation of
8
The defendants offer other bases for dismissal under Rule
12(b)(6). They allege that Abbas is a public figure and that he
failed to demonstrate actual malice in his complaint. They also
claim that the District of Columbia’s fair comment privilege
protects the defendants from liability. Having already decided in
the defendants’ favor on other grounds, we need not reach those
alternative arguments.
19
other facts consistent with the challenged pleading could not
possibly cure the deficiency.” Belizan v. Hershon, 434 F.3d
579, 583 (D.C. Cir. 2006) (internal quotation marks omitted);
cf. Rollins v. Wackenhut Services, Inc., 703 F.3d 122, 132-33
(D.C. Cir. 2012) (Kavanaugh, J., concurring) (dismissal under
Rule 12(b)(6) is ordinarily dismissal with prejudice, unless
district court in its discretion states otherwise). Abbas’s
complaint relies exclusively on two questions in one article.
We have held that those questions, as a matter of law, do not
qualify as false and defamatory statements under D.C. law.
Therefore, dismissal with prejudice is appropriate.
***
The District Court dismissed Abbas’s complaint with
prejudice. We affirm the judgment of the District Court.
So ordered.