Statements made in the course of litigation by parties to the case are absolutely privileged and cannot form the basis of a defamation action. At the same time, reporters enjoy a "fair report" privilege that allows them to report and comment on judicial proceedings without fear of defamation liability, even if they repeat the allegedly defamatory statements in their coverage of the case, provided the report is a fair and accurate description of the case. Does it follow, then, that a litigant can make defamatory comments to a reporter during the course of a case? Most courts would answer that in the negative, since the reporter is not involved in the case. But if that litigant is speaking about an issue of public interest, such as the operation of the District's financial office, his comments may be protected by D.C.'s anti-SLAPP act.
Eric Payne, former contracting director for the District of Columbia, sued D.C.'s Chief Financial Officer, Natwar Gandhi, for wrongful termination. In an interview with The Washington Post, Gandhi claimed that he fired Payne because he was "a very poor manager," "nasty to people," and "rude to outsiders." Payne then sued Gandhi and the District of Columbia alleging that these remarks defamed him. The city has indicated that it plans to file a special motion to dismiss the case under the city's anti-SLAPP statute.
A "SLAPP" (or Strategic Lawsuit Against Public Participation) can exist in many forms but traditionally consists of a frivolous lawsuit filed by one side of a public debate against someone who has exercised the right of free speech to express an opposing viewpoint. The anti-SLAPP statute was enacted primarily to protect citizen activists from these lawsuits filed for intimidation purposes, but can be applied in any situation where the lawsuit threatens the right of advocacy on issues of public interest.
Since the statute is relatively new, only a handful of suits have tested the anti-SLAPP statute. A D.C. firefighter filed a libel claim against a television station which aired a report about the firefighter's high overtime earnings. The court granted the station's anti-SLAPP motion to dismiss. Several federal litigants have invoked the statute, and the courts have thus far found that the law does not apply in federal court. Other cases have been settled before the anti-SLAPP claims were decided. In another case, television host Rachel Maddow invoked the statute to dismiss a claim filed by a Christian rock artist against her and MSNBC. Although a Superior Court judge granted the motion, the plaintiff is attempting to remove the case to federal court where the anti-SLAPP statute might not apply.
Payne will be unable to continue with discovery in his case while the anti-SLAPP motion is pending, and if the city prevails, Payne could be liable for the city's legal fees.