John Doe No. 1 v. Susan L. Burke

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-83
JOHN DOE NO. 1, APPELLANT
v.
SUSAN L. BURKE, APPELLEE.
Appeal from the Superior Court of the District of Columbia
(CAB-7525-12)
(Hon. Maurice A. Ross, Trial Judge)
(Argued January 29, 2014 Decided May 29, 2014)
Christopher J. Hajec, with whom Michael E. Rosman was on the brief, for
appellant.
William T. O’Neil for appellee.
James A. McLaughlin for amicus curiae Reporters Committee for Freedom
of the Press, the American Civil Liberties Union of the Nation‟s Capital, American
Society of News Editors, Digital Media Law Project, Gannett Co., Inc., the
McClatchy Co., National Press Photographers Association, and the Washington
Post. Bruce D. Brown and Gregg P. Leslie were on the brief for amicus curiae.
Before EASTERLY, Associate Judge, and SCHWELB and FARRELL, Senior
Judges.
2
EASTERLY, Associate Judge: A “strategic lawsuit against public
participation” or “SLAPP” is a lawsuit “filed by one side of a political or public
policy debate aimed to punish or prevent the expression of opposing points of
view.” D.C. Council, Comm. on Pub. Safety and the Judiciary, Report on Bill 18-
893 (“Comm. Report”) at 1 (Nov. 18, 2010). SLAPPs “masquerade as ordinary
lawsuits,” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003) (internal quotation
marks omitted), but a SLAPP plaintiff‟s true objective is to use litigation as a
weapon to chill or silence speech. The District recently enacted the D.C. Anti-
SLAPP Act to protect the targets of such suits. D.C. Code § 16-5501 to -5505
(2012 Repl.). Invoking this statute, anonymous speaker John Doe No. 1 filed a
special motion to quash a subpoena issued by Susan L. Burke seeking his
identifying information. See D.C. Code § 16-5503. The trial court denied the
motion and John Doe No. 1 now seeks interlocutory review. Addressing the Anti-
SLAPP statute for the first time, we begin by assessing whether the denial of a
special motion to quash under the statute may be immediately appealed to this
court. We answer that question in the affirmative and then consider whether the
trial court correctly denied the special motion to quash. We determine that it did
not. Accordingly, we reverse.
3
I. Facts1
Appellee Susan L. Burke is an attorney based in the District of Columbia
who litigates in state and federal courts across the country. She founded her own
law firm to pursue her interest in human rights litigation and a focus of her practice
is advocacy for those allegedly harmed by the misconduct of U.S. military
personnel and government contractors. For example, Ms. Burke represented a
group of former detainees held at Abu Ghraib prison in Iraq in their suit against
federal government contractors working at that site. In 2007, Ms. Burke filed a
civil lawsuit seeking to vindicate the rights of Iraqi civilians and their families who
were victims of the 2007 civilian shootings in Baghdad by individuals who worked
for the company then known as Blackwater (now Academi). See Abtan v.
Blackwater Lodge & Training Ctr., 611 F. Supp. 2d 1 (D.D.C. 2009). That lawsuit
was settled in 2010.
In October 2011, an individual known only as RetroLady64 created a
webpage for Ms. Burke on Wikipedia. Wikipedia is a “collaboratively edited,
1
Because of the procedural posture of this case, the trial court has not yet
made factual findings. But the relevant facts, as alleged by the parties in their trial
court filings, are not in dispute.
4
multilingual, free-access, free content Internet encyclopedia” and any visitor to the
website has the ability to add, edit, or remove content.2 The Wikipedia entry for
Ms. Burke discussed, among other things, her civil suit against Blackwater:
Burke represented plaintiffs . . . in a lawsuit against Blackwater. The
lawsuit stemmed from the firefight in Niso[u]r Square in Baghdad.
The lawsuit alleged Blackwater violated the federal Alien Tort Statute
in committing extrajudicial killing and war crimes, and that the
company was liable for assault and battery, wrongful death,
intentional and negligent infliction of emotional distress, and
negligent hiring, training and supervision. The lawsuit was dismissed
in 2010.
Three months later, in January 2012, appellant John Doe No. 1, whose
Wikipedia user name is “Zujua,” added information in the section of Ms. Burke‟s
page that addressed the Abtan litigation. This information had nothing to do with
Ms. Burke or the Abtan civil suit; instead it related to the troubled federal criminal
prosecution of the Blackwater contractors arising from the same incident in Nisour
Square.3 As modified by Zujua, the section of Ms. Burke‟s page that addressed the
Abtan litigation read (Zujua‟s additions are italicized):
2
Wikipedia, http://en.wikipedia.org/wiki/Wikipedia (last visited May 27,
2014).
3
As the source for this information, Zujua cited to a December 2009 article
in the New York Times: See Charlie Savage, Judge Drops Charges from
(continued…)
5
Burke represented plaintiffs . . . in a lawsuit against Blackwater. The
lawsuit stemmed from the firefight in Niso[u]r Square in Baghdad.
The lawsuit alleged Blackwater violated the federal Alien Tort Statute
in committing extrajudicial killing and war crimes, and that the
company was liable for assault and battery, wrongful death,
intentional and negligent infliction of emotional distress, and
negligent hiring, training and supervision. Judge Urbina threw out
the suit in December 2009, saying that "the court declines to excuse
the government's reckless violation of the defendants' constitutional
rights as harmless error," after they attempted to use as evidence the
defendants’ compelled statements taken under threat of the 1oss of
their jobs. Judge Urbina went on to criticize prosecutors for
withholding "substantial exculpatory evidence" from the grand jury,
and presenting "distorted versions" of witness' testimony. The lawsuit
was dismissed in 2010.
Ms. Burke saw and removed this information about one month after it was
posted. Zujua is not alleged to have taken any further action. A second
anonymous user (“CapBasics359”), however, later posted similar language about
the 2009 dismissal of the federal government‟s criminal case to Ms. Burke‟s
Wikipedia page. Ms. Burke again removed the offending statements herself; this
time, she also contacted CapBasics359 through Wikipedia to inform him that the
information he added did not apply to her case. CapBasics359 then restored the
statements about the government prosecution, however, and he and Ms. Burke
(…continued)
Blackwater Deaths in Iraq, N.Y. Times, Dec. 31, 2009,
http://www.nytimes.com/2010/01/01/us/01blackwater.html.
6
went back and forth several times, with CapBasics359 adding and Ms. Burke
deleting this same information.
Suspecting that incorrect additions to her Wikipedia page were the product
of a scheme by Blackwater to discredit her, Ms. Burke filed suit in D.C. Superior
Court alleging defamation, tortious interference in prospective business advantage,
and false light invasion of privacy. She named several anonymous defendants who
she asserted had colluded to defame her: Zujua (John Doe No. 1), CapBasics359
(John Doe No. 2), and eight alleged Blackwater employees or agents (John Does 3-
10). As Ms. Burke did not know the real names of the Wikipedia users, she was
unable to serve them. She therefore issued a subpoena to obtain Wikipedia‟s user
data so that she could obtain the anonymous posters‟ identifying information.
Zujua, represented by the Center for Individual Rights, moved to quash the
subpoena pursuant to the D.C. Anti-SLAPP Act‟s “special motion to quash”
provision, D.C. Code § 16-5503.4 In the alternative, he sought a protective order
preventing the discovery of his identity. On January 30, 2013, the trial court
denied Zujua‟s motion in a one-page order. The court ruled that Zujua was not
4
CapBasics359, the other anonymous Wikipedia editor, is not a participant
in the current appeal.
7
entitled to the protection of the Anti-SLAPP statute because he had not established
that he had spoken about “an issue of public interest” within the meaning of the
statute. Without further explanation, the court stated that Zujua had both failed to
make an affirmative showing that Ms. Burke was a general- or limited-purpose
public figure and failed to disprove that his speech was commercially motivated.
In addition, the trial court ruled, also without explanation in its order, that even if
Zujua‟s speech was about an issue of public interest, he was not entitled to quash
the subpoena because Ms. Burke had demonstrated a likelihood of success on the
merits of her defamation claim. Finally, the court denied Zujua‟s request for a
protective order noting that Zujua had provided no authority for such a request.
This appeal followed.5
II. The D.C. Anti-SLAPP Act
In 2010, the Council of the District of Columbia enacted the D.C. Anti-
SLAPP Act to protect the targets of SLAPPs and encourage “engag[ement] in
political or public policy debates.” Comm. Report at 4. Following the lead of a
Because we determine that the denial of Zujua‟s motion to quash the
5
subpoena seeking his identifying information is appealable and that his motion
should have been granted, we decline to address his claim that he is separately
entitled to a protective order preventing the discovery of his identity.
8
number of other jurisdictions, the statute creates a “special motion to dismiss,” a
procedural mechanism that allows a named defendant to quickly and equitably end
a meritless suit. D.C. Code § 16-5502. The D.C. statute goes further than the
other jurisdictions, however, in its additional protection for anonymous speech.
Given that “SLAPP plaintiffs frequently include unspecified individuals as
defendants,” Comm. Report at 4, and recognizing the importance of anonymous
speech on matters of public interest, the D.C. Anti-SLAPP Act also allows “a
person whose personal identifying information is sought” to safeguard his identity
by filing a “special motion to quash” a subpoena. D.C. Code § 16-5503 (a). An
anonymous would-be defendant who is able to protect her identity in this manner
can thus avoid being named in a suit and served with a complaint.
To establish the grounds for either of the two procedural protections the
Anti-SLAPP statute affords—dismissal of the suit or quashing of a subpoena—the
moving party must show that his speech is of the sort that the statute is designed to
protect. Specifically, the moving party must “make[] a prima facie showing that
the underlying claim arises from an act in furtherance of the right of advocacy on
issues of public interest.” D.C. Code § 16-5502 (b); see also D.C. Code § 16-5503
(b). Upon such a showing, the motion will be granted unless the opposing party
9
demonstrates a likelihood of success on the merits of his or her underlying claim.
Id.
III. Appealability of a Special Motion to Quash
Before we may consider the merits of the trial court‟s order denying Zujua‟s
special motion to quash, we must determine whether such an order can be
immediately appealed to this court.6 See McNair Builders, Inc. v. Taylor, 3 A.3d
1132, 1135 (D.C. 2010) (“Before we may decide [the merits of the appeal], we
must first determine whether this court has jurisdiction.”)
6
We do not address the related but separate question of whether an order
denying a special motion to dismiss under the Anti-SLAPP Act is immediately
appealable. We note that this was an issue in a different case before this court,
Mann v. Nat’l Review, Inc., et al., 13-CV-1043, but the appeal in that case was
dismissed before an opinion was issued. Two days before oral argument for this
case, the District of Columbia delivered to the court the amicus brief it filed in
Mann. It is not clear what the District, which is not a party to this case, sought to
accomplish, procedurally or substantively, with this submission. While the District
is not required to ask permission to be amicus in this court, see D.C. App. R. 29
(a), it still must follow other rules pertaining to amicus filings, see, e.g., D.C. App.
R. 29 (c)-(e). Moreover, if it meant to participate in this case as amicus by
resubmitting its Mann amicus brief, that brief provides little guidance regarding the
issue before us. In a footnote, the District in Mann took the position that whether
the denial of a special motion to dismiss is immediately appealable is “related, but
quite distinct” from whether the denial of a special motion to quash is appealable,
and it never said whether the appealability of these distinct motions should be
resolved similarly or differently. We see no reason to address the appealability of
the special motion to dismiss in this case.
10
The appellate jurisdiction of this court is defined by statute. Specifically,
D.C. Code § 11-721 (2012 Repl.) gives this court jurisdiction over “all final orders
and judgments” of the Superior Court, as well as certain categories of interlocutory
orders. D.C. Code § 11-721 (a)(1), (a)(2). Superior Court orders that do not
finally resolve pending cases are therefore not ordinarily appealable pursuant to
our “general policy against piecemeal review.” Umana v. Swidler & Berlin,
Chartered, 669 A.2d 717, 722 (D.C. 1995). Furthermore, we have specifically
held that “[a] pretrial order granting or denying discovery from a non-party witness
is not ordinarily final for purposes of appeal unless, in the case of an order granting
discovery, the subject of the order refuses to comply and is adjudicated in
contempt.” Crane v. Crane, 657 A.2d 312, 315 (D.C. 1995) (emphasis omitted).
With that said, this court also has jurisdiction to hear certain non-final orders
not specifically enumerated in our jurisdictional statute. This court has recognized
that the collateral order doctrine, first articulated by the Supreme Court in Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) and applied to the
jurisdictional statute for the federal courts of appeals, 28 U.S.C. § 1291-92 (2012),
11
likewise applies to D.C. Code § 11-721.7 See Stein v. United States, 532 A.2d 641,
643 (D.C. 1987); see also, e.g., McNair Builders, 3 A.3d at 1135-36. The
collateral order doctrine “is best understood not as an exception to the final
decision rule” codified in this court‟s jurisdictional statute “but as a practical
construction of it.” Will v. Hallock, 546 U.S. 345, 349 (2006) (internal quotation
marks omitted). This doctrine permits appellate courts to assert jurisdiction over a
“small class” of otherwise non-final orders, Stein, 532 A.2d at 643 (quoting Cohen,
337 U.S. at 546), which “finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546.
This court, like the Supreme Court, recognizes that “[p]ermitting piecemeal,
prejudgment appeals . . . undermines efficient judicial administration and
encroaches on the prerogatives of [trial] court judges who play a special role in
managing ongoing litigation.” Mohawk Industries v. Carpenter, 558 U.S. 100, 106
(2009) (internal quotation marks omitted). Accordingly, we have likewise
emphasized that the reach of the collateral order doctrine is “modest” and the test
7
D.C. Code § 11-721 is modeled after and “virtually identical” to 28 U.S.C.
§ 1291-92 (2012). See Brandon v. Hines, 439 A.2d 496, 509 (D.C. 1981).
12
for applying it is “stringent.” McNair Builders, 3 A.3d at 1136 (quoting Will, 546
U.S. at 349-50). Three criteria must be satisfied; the subject order: (1) “must
conclusively determine a disputed question of law,” (2) “must resolve an important
issue that is separate from the merits of the case,” and (3) “must be effectively
unreviewable on appeal from a final judgment.” McNair Builders, 3 A.3d at 1135
(quoting Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774
A.2d 332, 339-40 (D.C. 2001) (overruled on other grounds)). Despite this
“stringent” test, we conclude that an order denying a special motion to quash under
the D.C. Anti-SLAPP Act satisfies the requisite criteria and is immediately
appealable to this court.8 See id. at 1140 n.9 (explaining that a determination that
an order is appealable under the collateral order doctrine is “not directed at the
individual case, but to the entire category to which a claim belongs” (quoting
Mohawk, 558 U.S. at 101) (internal quotation marks omitted)).
First, the order denying the special motion to quash conclusively determines
a disputed question of law. The trial court concluded that “[d]efendant fail[ed] to
8
Because we rely on the collateral order doctrine to resolve the
jurisdictional issue, we do not address Zujua‟s alternative argument that the order
denying the special motion to quash amounts to the denial of injunctive relief
which is appealable under D.C. Code § 11-721 (a)(2)(A) (identifying as appealable
orders “granting, continuing, modifying, refusing, or dissolving or refusing to
dissolve or modify injunctions”).
13
present a prima faci[e] case that the writings at issue are protected under the D.C.
Anti-[SLAPP] statute.” With this order, the court made a determination that
Zujua‟s speech was not of the sort that the Anti-SLAPP statute intends to protect.
See supra part II. Federal appellate courts that have examined similar state Anti-
SLAPP statutes have likewise found the conclusivity element satisfied when a trial
court has determined the movant is ineligible for protection under the statute. See
Godin v. Schencks, 629 F.3d 79, 84 (1st Cir. 2010) (“the order conclusively
decides that relief under Maine‟s [Anti-SLAPP statute] is unavailable to the
individual defendants”); Henry v. Lake Charles Am. Press, 566 F.3d 164, 174 (5th
Cir. 2009) (“an order denying a[] . . . motion [under Louisiana‟s Anti-SLAPP
statute] satisfies any concerns regarding conclusivity”).9
Next, the order denying the special motion to quash resolves an important
issue separate from the merits of the lawsuit. On its face, whether Zujua‟s
anonymous speech qualifies for protection under the statute is a separate question
from whether Zujua may be held liable for defamation. Ms. Burke argues that our
9
We note that Godin and Henry apply the collateral order doctrine to
special motions to dismiss. But just as in the statutory schemes reviewed in Godin
and Henry, an anonymous speaker seeking to quash a subpoena in the District
carries the burden to present prima facie evidence that his speech is eligible for the
Anti-SLAPP statute‟s protections. See supra part II.
14
analysis cannot stop here, however, and that we must also consider that, upon the
presentation of a prima facie case that the movant has engaged in protected
activity, the plaintiff may defeat the special motion to quash by showing a
likelihood of success on the merits. See D.C. Code § 16-5503 (b). This latter
inquiry, Ms. Burke asserts, is not sufficiently separate from a merits inquiry. We
disagree. Although a plaintiff may defeat a special motion to quash by showing a
likelihood of success on the merits, the purpose of this inquiry is still “to determine
whether the defendant is being forced to defend against a meritless claim, not to
determine whether the defendant actually committed the relevant tort.” Henry, 566
F.3d at 175 (internal quotation mark omitted); see also id. (discussing numerous
applications of the collateral order doctrine and concluding that “an order does not
have to be separate from the entirety of the underlying dispute to satisfy Cohen”).10
Put another way, the “[d]enial of an anti-SLAPP motion resolves a question
10
In Henry, the court explained that the separability requirement is meant to
promote the collateral order doctrine‟s goal of encouraging “efficient
adjudication. . . . by preventing appeals on issues that will be definitively decided
later in the case. In this way, one might characterize separability as a way of
ensuring that a movant is not attempting to have an appellate court preemptively
resolve a disputed issue still pending in the district court.” 566 F.3d at 175-76.
But, the court further explained, “issues of immunity [like those considered in
evaluating a motion under an Anti-SLAPP statute] are decided prior to trial and
then not normally revisited.” Id. at 176. Because of the nature of the court‟s
inquiry, therefore, the concerns that drive the separability requirement are not
relevant here.
15
separate from the merits in that it merely finds that such merits may exist, without
evaluating whether the plaintiff‟s claim will succeed.” Batzel v. Smith, 333 F.3d
1018, 1025 (9th Cir. 2003); see also Finkelstein, Thompson & Loughran, 774 A.2d
at 340 (concluding that “the issue of immunity from having to defend against . . .
[a] defamation claim is separate from the merits of that claim”).
The final requirement to qualify for review under the collateral order
doctrine is that the subject order be “effectively unreviewable on appeal from a
final judgment.” McNair Builders, 3 A.3d at 1135. “We have said that the denial
of a motion that asserts an immunity from being sued is the kind of ruling that is
commonly found to meet the requirements of the collateral order doctrine and thus
to be immediately appealable.” Id. at 1136 (internal quotation marks omitted).
Here we consider the denial of a special motion to quash, not the denial of a special
motion to dismiss, which explicitly protects the right not to stand trial. But we
conclude that the former also confers an immunity of a sort from suit. See supra p.
7-8. An anonymous speaker who can preserve his anonymity can avoid service and
thereby avoid ever becoming a named party to a suit.
We have explained, however, that it is not enough that the unreviewable
interest be in the “mere avoidance of a trial.” McNair Builders, 3 A.3d at 1136
 16
(quoting Will, 546 U.S. at 353). Rather, before we exercise our appellate
jurisdiction under the collateral order doctrine we must confirm what is at stake is
the “avoidance of a trial that would impair a „substantial public interest.‟” Id. at
1137.
The right the Council sought to protect with the special motion to quash is
the right to engage in anonymous speech, Comm. Report at 4, which is grounded in
the First Amendment to the U.S. Constitution. See Solers, Inc. v. Doe, 977 A.2d
941, 950-51 (D.C. 2009).11 In drafting the District‟s Anti-SLAPP statute, the
Council took into account the experiences of states with similar statutes and
determined that, in this respect, the District could do better in offering protection to
the intended targets of SLAPP actions. We find it significant in our assessment of
the public interest in the right at stake that the constitutional right of anonymous
speech is specially protected in the District‟s Anti-SLAPP statute.12
11
While Ms. Burke correctly notes that anonymous defamation is not
entitled to constitutional protection, see Solers, 977 A.2d at 951, the Council made
a legislative judgment in choosing to broadly protect anonymous speech. If truly
defamatory, a plaintiff may defeat the motion to quash if she can establish a
likelihood of success on the merits. See infra part IV.
12
Citing Englert v. MacDonell, 551 F.3d 1099, 1105 (9th Cir. 2009), Ms.
Burke argues that because the District‟s Anti-SLAPP statute does not explicitly
provide for the immediate appeal of the denial of a special motion to quash, the
(continued…)
17
The exercise of the statutorily protected right to anonymous speech would be
substantially chilled if the denial of a special motion to quash were not
immediately appealable. See McNair Builders, 3 A.3d at 1140 (“the crucial
question . . . is not whether an interest is important in the abstract; it is whether
deferring review until final judgment so imperils the interest as to justify the cost
of allowing immediate appeal of the entire class of relevant orders.”). Deferring
review of the denial of a special motion to quash would result in the irreversible
loss of the anonymity that the Anti-SLAPP Act specifically seeks to protect. As a
result, those who would speak out anonymously might choose not to speak at all.
This is precisely the sort of injury to an important public interest that this court has
(…continued)
Council must not have believed that anonymity was an important value worthy of
such protection. But because of the limitations placed on the D.C. Council under
the Home Rule Act, we conclude that the D.C. Council‟s failure to codify an
immediate appeal provision for the denial of a special motion to quash cannot
reasonably be analogized to the Oregon legislature‟s failure to create an immediate
appeal in Englert. Congress created the current District of Columbia Courts
system, defined the jurisdiction of the District‟s courts, and prohibited the Council
from legislating to expand (or contract) their jurisdiction. Although what
constitutes an improper expansion of jurisdiction has been the subject of some
dispute in this court, it is clear that this court possesses the sole power to interpret
D.C. Code § 11-721, our jurisdiction-conferring statute. It was for these reasons
that the Council, which originally sought to create a right of immediate appeal for
special motions to dismiss, see Comm. Report at 7, deleted this provision. We
therefore read little into the absence of a provision that the Council may not have
been empowered to include in the first place.
18
acknowledged that the collateral order doctrine is meant to protect. See McNair
Builders, 3 A.3d at 1138 (observing that the public interest in protecting the “valid
exercise of the constitutional right[] of freedom of speech” and “encourag[ing]
continued participation in matters of public significance” would be a “public
interest worthy of protection on interlocutory appeal.” (quoting Henry, 566 F.3d at
169, 180)).
Because each of the criteria of the collateral order doctrine is satisfied, we
hold that an order denying a special motion to quash under the D.C. Anti-SLAPP
statute will be immediately appealable to this court.
IV. Assessing the Motion to Quash
Having determined that we have jurisdiction to reach the merits in the
instant appeal, we turn to the parties‟ arguments with regard to the trial court‟s
order denying the special motion to quash. Our review of this issue, a question of
statutory interpretation, is de novo. See Hernandez v. Banks, 84 A.3d 543, 552
(D.C. 2014).
19
A. Prima Facie Case
As noted above, to prevail on a special motion to quash, the moving party
must first demonstrate that “the underlying claim arises from an act in furtherance
of the right of advocacy13 on issues of public interest.” D.C. Code § 16-5503 (b).
An “issue of public interest” is defined positively and negatively in the Anti-
SLAPP statute. The statute positively defines it to “mean[] an issue related to
health or safety; environmental, economic, or community well-being; the District
government; a public figure; or a good, product, or service in the market place”;
the statute then provides that it “shall not be construed to include private interests,
13
The statute defines “[a]ct in furtherance of the right of advocacy on issues
of public interest” as:
(A) Any written or oral statement made:
(i) In connection with an issue under consideration or
review by a legislative, executive, or judicial body, or
any other official proceeding authorized by law; or
(ii) In a place open to the public or a public forum in
connection with an issue of public interest; or
(B) Any other expression or expressive conduct that involves
petitioning the government or communicating views to
members of the public in connection with an issue of public
interest.
D.C. Code § 16-5501 (1). The Superior Court made no specific finding on whether
Zujua‟s Wikipedia edit was “an act in furtherance of the right of advocacy” but
found that regardless of the “act” element, Zujua‟s speech was not on an “issue of
public interest.” On appeal, Zujua asserts that his Wikipedia edit satisfied this
criterion and Ms. Burke makes no argument disputing that assertion.
20
such as statements directed primarily toward protecting the speaker‟s commercial
interests rather than toward commenting on or sharing information about a matter
of public significance.” D.C. Code § 16-5501 (3). Here, the trial court found that
Zujua failed to establish a prima facie case that his speech met this statutory
definition both because (1) he did not establish that Ms. Burke was a public figure,
and (2) he did not “provide[] prima faci[e] evidence that his comments were not
commercially motivated.”
To establish that his speech fell within the definition of “issue of public
interest” Zujua argued at trial and reiterates on appeal that his Wikipedia edit was
on an “issue related to . . . a public figure.” 14 D.C. Code § 16-5501 (3). Although
the statute does not define “public figure,” we presume that the use of this term
imports the definition of “public figure” used throughout defamation law. See
1618 Twenty-First St. Tenants’ Ass’n, Inc. v. The Phillips Collection, 829 A.2d
201, 203 (D.C. 2003) (explaining that as a general rule, we presume that where a
14
Zujua additionally argues that his Wikipedia edit related to an “issue of
public interest” because it pertained to Ms. Burke‟s performance as an attorney and
was thus “related to . . . a service in the market place.” D.C. Code § 16-5501 (3).
The trial court did not address this argument, perhaps because it was raised only in
Zujua‟s reply in support of his motion. We likewise do not address this argument
as we find that Ms. Burke is a public figure.
21
legislature adopts a term of art, it “knows and adopts the cluster of ideas that were
attached to each borrowed word”).15
Like the Supreme Court, this court has recognized two types of public
figures in the context of defamation claims: general and limited purpose public
figures. “[G]eneral purpose public figures . . . because of their „position of such
pervasive power and influence . . . [,] are deemed public figures for all purposes.‟”
Moss v. Stockard, 580 A.2d 1011, 1030 (D.C. 1990) (quoting Gertz v. Robert
Welch, Inc., 418 U.S. 323, 345 (1974)). “[L]imited-purpose public figures,” that
is, individuals “who assume roles „in the forefront of particular public
controversies in order to influence the resolution of the issues involved,‟ . . . are
deemed public figures only for purposes of the controversy in which they are
influential.” Id. (quoting Gertz, 418 U.S. at 345). “[T]he touchstone remains
whether the individual has assumed a role of special prominence in the affairs of
society . . . that invites attention and comment.” Id. (quoting Tavoulareas v. Piro,
817 F.2d 762, 773 (D.C. Cir. 1987)). While it is clear that Ms. Burke is not a
15
Federal courts that have examined the D.C. Anti-SLAPP Act have done
the same. See, e.g., Abbas v. Foreign Policy Grp., LLC, No. 12-1565, 2013 WL
5410410, at *6 (D.D.C. Sept. 27, 2013); Boley v. Atl. Monthly Grp., 950 F. Supp.
2d 249, 260-62 (D.D.C. 2013).
22
general purpose public figure, such as a politician or celebrity, both Zujua and the
amici argue that she is a limited-purpose public figure.
The task of determining whether a defamation plaintiff is a limited-purpose
public figure is a difficult one, requiring a highly fact-intensive inquiry that one
court has described as “trying to nail a jellyfish to the wall.” Moss, 580 A.2d at
1030 (quoting Rosanova v. Playboy Enters., 411 F. Supp. 440, 443 (S.D. Ga.
1976), aff’d, 580 F.2d 859 (5th Cir. 1978)). To facilitate this determination, this
court in Moss adopted a three-part inquiry articulated by the D.C. Circuit in
Waldbaum v. Fairchild Publ’ns, 627 F.2d 1287, 1297 (D.C. Cir. 1980). The court
must begin by determining “whether the controversy to which the defamation
relates was the subject of public discussion prior to the defamation.” Moss, 580
A.2d at 1030. Next, the court must determine “whether „a reasonable person
would have expected persons beyond the immediate participants in the dispute to
feel the impact of its resolution.‟” Id. (quoting Waldbaum, 627 F.2d at 1297).
After identifying the existence and scope of the public controversy, the court will
find that a defamation plaintiff is a limited-purpose public figure with respect to
that controversy if “[t]he plaintiff . . . achieved a special prominence in the debate,
and either „must have been purposely trying to influence the outcome or could
realistically have been expected, because of [her] position in the controversy, to
23
have an impact on its resolution.‟” Id. at 1031 (quoting Waldbaum, 627 F.2d at
1297).
Applying the Waldbaum framework, we hold that Ms. Burke is a public
figure. First, the speech at issue here pertains to an obviously public controversy
that existed before Ms. Burke‟s involvement. The 2007 Nisour Square shooting
was a significant international event which implicated United States foreign policy
and which raised questions about the appropriate use of private contractors in Iraq.
Ms. Burke attempts to define the controversy narrowly by asserting that only the
private interests of individual clients were at play. But every public controversy
involves individuals when examined at some level of granularity, and Ms. Burke‟s
narrow view of the controversy is not reflected in her own descriptions of the high
stakes of this litigation in press releases and interviews, where Ms. Burke has said,
for example, that the “litigation [would] prove that Blackwater‟s interests are
contrary to the interests of the U.S. military, the State Department, and the nation
of Iraq.” Press Release, Burke O‟Neil LLC, Blackwater Faces New Death and
Injury Claims and Drug Allegations (Nov. 27, 2007), available at
http://burkepllc.com/category/press-releases. Furthermore, it cannot reasonably be
disputed that the public “or some segment of it” would “feel the impact” of the
24
resolution of the controversy about Blackwater‟s presence in Iraq and its actions in
Nisour Square.
Finally, we are asked to examine in-depth Ms. Burke‟s role in this
controversy to determine whether she “achieved a special prominence” such that
she was “purposefully trying to influence” an outcome of the controversy. Ms.
Burke warns against determining that an attorney is a public figure simply because
of her performance of her job duties, namely, zealous advocacy for her clients.
Courts in other jurisdictions have taken on the difficult task of determining when
an attorney will become a public figure in her representation of clients, with many
finding that attorneys whose cases address large-scale public issues or who
represent prominent clients and seek extensive media attention will become
limited-purpose public figures. See, e.g., Marcone v. Penthouse Int’l Magazine for
Men, 754 F.2d 1072, 1083-84 (3d Cir. 1985) (finding that an attorney was a
limited-purpose public figure where he “actively participate[d] in the public issue
in a manner intended to obtain attention”); Partington v. Bugliosi, 825 F. Supp.
906, 917-18 (D. Haw. 1993) (explaining that an attorney who “voluntarily engaged
in a course of action with respect to [his representation of his client] that was
bound to invite attention and comment” was a limited-purpose public figure);
Ratner v. Young, 465 F. Supp. 386, 400 (D.V.I. 1979) (noting that attorneys were
25
limited-purpose public figures where they “voluntarily thrust themselves into the
vortex of [a] case that had far-reaching and serious effect[s] on many people not
connected with it.”). But see, e.g., Littlefield v. Fort Dodge Messenger, 614 F.2d
581, 584 (8th Cir. 1980) (finding that an attorney was not a limited-purpose public
figure due simply to his practice of law in violation of bar discipline); Marchiondo
v. Brown, 649 P.2d 462, 467-68 (N.M. 1982) (holding that an attorney was not a
limited-purpose public figure despite being “well known” in the community).
We agree that “[l]egal representation of a client, by itself, does not establish
an individual as a public figure,” Marcone, 754 F.2d at 1085. In her litigation of
high-profile cases like Abtan, however, Ms. Burke went above and beyond simple
legal representation in court pleadings and appearances. She sought substantial
publicity for this case by putting out press releases and giving interviews. (We
note that her actions prompted the company formerly known as Blackwater to seek
a gag order against her.) By no means do we seek to criticize or challenge her far-
reaching and assertive advocacy. We comment on her conduct only to explain
how she “assumed the risk that in the course of reporting and commenting on a
well known person or public controversy,” that public speakers, like Zujua, might
“inadvertently make erroneous statements about” her. See Marcone, 754 F.2d at
1081.
26
Thus, Ms. Burke satisfies all three criteria from Waldbaum, and we are
confident that she has “thrust [herself] to the forefront of . . . [this] public
controvers[y],” Gertz, 418 U.S. at 345, and can be considered a limited-purpose
public figure. The trial court‟s determination to the contrary was erroneous.
We additionally find error in the trial court finding on Zujua‟s commercial
motivation. It appears to have been the trial court‟s understanding that in order to
establish “an act in furtherance of the right of advocacy on issues of public
interest,” the anonymous speaker must also disprove commercial motivation, even
where such motivation is not apparent from the content of the speech. This
apparent presumption of commercial interest has no foundation in the statute which
merely states what an issue of public interest is and is not. Moreover, such a
presumption is inappropriate in the context of a prima facie showing, for which we
have held the burden of proof is “not onerous.” Little v. United States, 613 A.2d
880, 885 (D.C. 1992). We understand Ms. Burke suspected that Zujua was
affiliated with Blackwater and thus had a commercial interest in defaming her.16
16
Amici emphasize—and both parties agree—that the fact that a speaker
receives compensation for his speech, e.g. he is a paid journalist, does not mean
that his statements are “directed primarily toward protecting the speaker‟s
(continued…)
27
But her unsubstantiated suspicion did not increase Zujua‟s initial burden. Indeed,
it would turn the statute on its head if a party seeking a special motion to quash had
to reveal his professional affiliation or other identifying information to disprove a
disqualifying commercial motivation not apparent from his speech alone. We
conclude, then, that Zujua established a prima facie case that his speech was
worthy of protection under the statute.
B. Likelihood of Success on the Merits
We next consider whether Ms. Burke is able to show that her “underlying
claim” of defamation is likely to succeed on the merits such that the special motion
to quash should nonetheless be denied. Without any discussion, the trial court
determined that Ms. Burke could make such a showing. We conclude otherwise.17
(…continued)
commercial interests.” Ms. Burke‟s argument on this point, however, is that Zujua
was affiliated with Blackwater and thus shared its commercial interests.
17
In her complaint, Ms. Burke raised two additional claims: (1) Tortious
Interference with Prospective Business Advantage, and (2) False Light Invasion of
Privacy. In opposing Zujua‟s special motion to quash, however, Ms. Burke only
argued that her defamation claim was likely to succeed on the merits, and she
similarly does not address her other two tort claims in her argument before this
court. Thus, she has waived any argument that she is likely to succeed on either of
these two claims.
28
To establish liability for defamation, a plaintiff must show:
(1) that the defendant made a false and defamatory statement
concerning the plaintiff; (2) that the defendant published the statement
without privilege to a third party; (3) that the defendant's fault in
publishing the statement amounted to at least negligence; and (4)
either that the statement was actionable as a matter of law irrespective
of special harm or that its publication caused the plaintiff special
harm.
Rosen v. Am. Israel Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012)
(quoting Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)). If the plaintiff is a
public figure, however, the fault component embodied in the third defamation
element is heightened; the plaintiff must then show by clear and convincing
evidence that the defendant‟s defamatory statement was published with actual
malice, i.e. either subjective knowledge of the statement‟s falsity or a reckless
disregard for whether or not the statement was false. Moss, 580 A.2d at 1029.
Zujua argues that the malice standard should apply here, and that Ms. Burke
is unlikely to succeed on the merits of her defamation claim because Zujua did not
publish his statements with malice. Zujua does not contest any of the other
elements of the defamation claim, and in particular makes no argument that the
Wikipedia edit is not a “false and defamatory statement.”
29
As a preliminary matter, it seems far from clear that Zujua‟s revisions to Ms.
Burke‟s Wikipedia page even constitute a defamatory statement. We note that
Zujua‟s edit introduced internal inconsistencies and, to anyone with a basic
understanding of the distinction between a civil suit and a criminal prosecution,
appears barely coherent. Thus, we query whether the edit amounts to a statement
of fact capable of defamatory meaning, i.e. that “it tends to injure the plaintiff in
[her] trade, profession or community standing, or lower [her] in the estimation of
the community.” Moss, 580 A.2d at 1023. Without argument to the contrary from
Zujua, however, we assume without deciding that this first element of defamation
has been satisfied.18
Having already determined that Ms. Burke is a limited purpose public figure,
see supra part IV. A., we agree with Zujua that she is required to show malice on
Zujua‟s part in order to succeed on her defamation claim. We conclude that she is
unlikely to be able to do so here. Although we have assumed that Zujua‟s edits
would constitute a false and defamatory statement of fact, the lack of clarity of his
18
At oral argument, counsel for Zujua asserted that it had not conceded the
information posted by his client was actually defamatory, but this court generally
“decline[s] to consider contentions raised for the first time in oral argument, at
least absent compelling reasons not apparent here.” Wagner v. Georgetown Univ.
Med. Ctr., 768 A.2d 546, 554 n.8 (D.C. 2001).
30
revisions provides good evidence of Zujua‟s state of mind. Zujua‟s edits do not
suggest knowledge of falsity or reckless disregard for whether or not the statement
was false. If anything, the edits seem to suggest confusion or honest mistake on
Zujua‟s part. Again, the edited paragraph is internally contradictory and implies
that Zujua probably did not understand that the private civil action in Abtan and the
federal prosecution of the contractors arising out of the same incident were
separate legal actions. Moreover, in contrast to the allegations Ms. Burke makes
against John Doe No. 2 (CapBasics359), who apparently re-published similar
information after she informed him that it was false, Ms. Burke admits that after
she apprised Zujua of the problems with the paragraph, he apparently accepted the
correction and did not seek to re-publish the information. This too demonstrates a
lack of malice. Zujua‟s failure to inquire further and learn more about the subject
and the federal case before he posted his edit might be evidence of negligence, but
we do not believe it demonstrates clear and convincing evidence of the “intentional
or reckless disregard for [the statement‟s] falsity.” Moss, 580 A.2d at 1029.
To be sure, the task of demonstrating malice is difficult for a plaintiff who
does not know the identity of the defamatory speaker and cannot argue malice
based on the identity and motivations of her alleged defamer. It is not impossible,
however, and the circumstances of the alleged defamation may well demonstrate
31
malice. Furthermore, the D.C. Council articulated a clear policy in favor of
anonymous speech when it enacted the D.C. Anti-SLAPP Act and created the
special motion to quash. We will neither question this policy judgment nor the
Supreme Court case law it builds upon. Like any public figure, Ms. Burke has
exposed herself to comment and criticism by virtue of the prominent role she has
assumed in this controversy. See Gertz, 418 U.S. at 345. While that does not mean
that she may be defamed freely, see id., it does mean that she must satisfy the test
imposed by the Supreme Court in order to protect the “breathing space” of the
constitutional freedom of expression. See N.Y. Times Co. v. Sullivan, 376 U.S.
254, 272 (1964). Because she cannot do so, she is unlikely to succeed on the
merits of her defamation claim.
V. Conclusion
Having determined that this court has jurisdiction to consider this appeal and
further holding that Zujua has established a prima facie case under the D.C. Anti-
SLAPP statute that was not rebutted by a showing of likelihood of success on the
underlying claims, we reverse the Superior Court‟s January 30, 2013 order and
32
remand with instructions to enter an order granting Zujua‟s special motion to quash
Ms. Burke‟s subpoena.19
So ordered.
19
Although Zujua argues on appeal that he was entitled to attorney fees
pursuant to D.C. Code § 16-5504 (a), the trial court never addressed this motion
because Zujua did not prevail below. In the absence of a ruling from the trial
court, we do not address this argument on appeal. Zujua may renew his claim for
attorney fees once the trial court enters its order quashing the subpoena.