<<

COMPETITIVE NATIONAL \IICI-IAEL Defendants—Appellants. RAND brief

should

MEMORANDUM

UNOPPOSED

THE

in

not V.

Pursuant SIMBERG,

response

PRESS

be

E.

REVIEW.

dismissed,

MA\.

IN

to

ENTERPRISE

to

Plaintiff—Appellee,

AND

MOTION

THE

D.C.

the

AS

Ph.D..

court’s

18

INC.:

DISTRICT

App.

All

AMICI

OThER

parties

OF

\IARK

R.

Oct.

INSTITUTE:

THE

CURL4E

29.

have

IX, MEDIA

OF

the

STEYN:

REPORTERS

2013,

COLUMBIA

above-named

consented

IN

The Gregg

Ariinizton. Respectfully

1101

Felephone:

ORG

order

RESPONSE

Counsel

fbr

R.eporters

Wilson

Freedom

P.

NIZATIONS

to

to

LeIie

the

show COMMITTEE

VA amici

COURT (703)

for

submitted,

Blvd.,

filing

G.ommittee

22209

:In2!cus

TO

of

(D.C.

cause

Nos,

13-cv-1044

move X07

the

of

ORDER Suite

OF

—2102

13-cv-1043,

Bar

Press

this

why

Curiae FOR

for

APPEALS

ii

#

brief

leave

FOR

this

426092)

(consolidated)

LEAVE

TO

interlocutory

FREEDOM

to

SHOW

file

[0

the

CAUSE

FILE

attached

appeal

OF .1 electronic

ANDREW and (202) BR agrossman(a. MARK DAVID Washington Washington, BAKERHOSTETLER Lotnpentnc

I

050

Itorneys

Rand

CE

Connecticut

861-1770

I

I.

13.

hereh

BROWN

br

BA Sun

mail

NI.

RIVKIN,

Enterprise Square.

bakerlaw.

D.C.

Appellants

[LEN

berg

GROSSMAN

upon:

certify

Avenue,

20036

Suite

JR.

corn

that

LLP

Jnstitute

1100

N.W.

on

No.

CER

13.

fIFICA

2013.

Gregg The

&rlington, 1101

I

FE

a

(ounsel

for cops cphone

Reporters

jbwi11iamsa. OF

Review, JAMES

Washington, JOHN scoffintsteptoe,com COZEN CATHERINE (202) SHANNEN Washington. STEP

1627

Wilson 1330 tHOMAS

Ittorneyc

Ittorneys

Freedom

P.

of

SER

Leslie

V& Connecticut

I

42Q-6255

the FOE

(703)

tor

B. Street,

Bhd

Inc.,

MOORHEAD

O’CONNOR

Committee

for for

22209

WILLIAMS foregoing

ICE

othe I

CON

&

‘nk

07

W.

cozen.com

D.C. and D.C.

Appellants Appellee

JOHNSON

NW,

ROSATO

Suite

us

COFFEN

FOIS

Press

Mark (

A

10’

20006

20036

Suite !ir1ct

motion

IluO

e.,

P.C.

.lfichael

Stevn

NW.

National

REILLY

1100

LLP

vas

E.

ser\ed

Mann

by Nos, 13cv- 1043, 13-cv- 1044 (consolidated)

DISTRICT OF COLUMBIA COURT OF APPEALS

Michael E. Mann, PhD.,

Plaintiff—Appellee, v

National Review, Inc.; Mark Steyn; Competitive Enterprise Institute; Rand Simberg,

Defendants—Appellants.

On Appeal from the Superior Court for the District of Columbia

BRIEF AMIU CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 19 OTHER MEDIA ORGANIZATIONS IN SUPPORT OF APPELLANTS, SUPPORTING A FINDING OF JURISDICTION

Gregg P. Leslie The Reporters Committee for Freedom of the Press 1101 Wilson Blvd.. Suite 1100 Arlington, VA 22209 Telephone: (703) 807-2100 Counsel for Amicus Curiae

Additional counsel listed in Appendix B TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

STATEMENT OF INTEREST iv

DISCLOSURE STATEMENT v

SUMMARY OF THE ARGUMENT 1

ARGUMENT ,.,..,.

I. The right to avoid litigation of meritless claims against speech on a matter of public interest, as provided by the D.C. anti-SLAPP statute, will be irreparably lost if denial of a motion is not immediately I

A. Three federal circuit courts have found, under the collateral order doctrine, that anti SLAPP statutes fall within the small class of interlocutory orders that are immediately 2

B. At least two states have found that anti-SLAPP statutes create immunity from suit, a right that is irreparably lost if denials of anti-SLAPP motions are not immediately appealable 4

C. Contrary decisions of other courts indicating there is no right to immediately appeal the denial of anti-SLAPP motions are distinguishable from the D.C. anti-SLAPP statute because of the issue of immunity 6

II. The important role appellate courts play in reviewing cases and the frequency with which defamation decisions are overturned justify prompt appellate review 8

CONCLUSION 10

APPENDIX A: DESCRIPTION OF AMICI 11

APPENDIX B: ADDITIONAL COUNSEL 16 11

TABIE OF MTIIORITIES

Cases JR. v, F.C, 33 A.3d 403 (D.C. 201 1)...... 7 Abbas v. Foreign Policy Grp., LLC, No. 12 1565, 2013 WL 5410410 (D.D.C. Sept. 27, 2013).. 2

Bar:elv. Smith, 333 F.3d 1018 (9th Cir. 2003) 2,6

Bolev v. Atlantic .Ionthlv Grp.. \o. 13—89.2013 WL 3185154 (D.D.C. June 25, 2013) 2

Bose Coip. v. Consumei Union. 466 U.S. 485 (1984) 8, 9

Citizens Ass ‘ii of Georgetown v. Zoning C’omm‘nof the District of Columbia. 392 A.2d 1027 (D.C. 1978) 7

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541(1949) 2

DC Comics v. Pac. Pictures Corp.. 706 F.3d 1009 (9th Cir. 2013) 2, 3, 4

Elrodv. Burns, 427 U.S. 347 (1976) 4

Englcrt v. MacDone/i. 551 F.3d 1099 (9th Cir. 2009) 6. 7

Fabre v. Walton. 781 N.E.2d 780 (Mass. 2002) 4

Godin v. Schencks, 629 F.3d 79(1st Cir. 2010) 2.3.6

Graysonv.AT&TCoip., 15 A.3d 219 (D.C. 2011) 7,8 flarte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989) 8

Ifeniy v. Lake Charles Am. Press, L.L.C., 566 F.3d 164 (5th Cir. 2009) 2, 3, 4

.Ietahohc Research, Inc. v. Ferrell. 693 F.3d 795 (9th Cir. 2012) 6, 7

Iorsc Bros. . Webster. 772 A.2d 842 (Me. 2001) 4. 5 l’ples Drug Stoc. Inc. i. Di1rkt ot Columbia. 17(1A.2d “5! (DC. 1983) .....,,...... 7

Schc/ling v. Linde/I. 942 A.2d 1226 (Me. 2008) 5

Stuart v. Walker. 6 A.3d 1215 (D.C. 2010) 7

Wendt v, Barnum, 2007 Mass. App. Di 93 (pp. Dix, 2007) ...... 4, 5 Statutes 111

Cal. Civ. Proc. (ode 425.16 (West 1992) (amended 2011). 2 D.C. Code 16-5501 c’t seq. (2011) 1. 5

La. Code Civ. Proc. Ann. art. 971 (1999) (amended 2012) 2

Mass. Gen. Laws ch. 231, § 59H (1994) (amended 1996) 4

Me. Rev. Stat. tit. 14, § 556 (1999) (amended 2012) 2

S.B. 286 (Nev. 2013) (amending Nev. Rev, Stat. §41.637) 6 Other Authorities

MLRC 2012 Report on Trials and Damages, Media L. Resource Center, Feb. 2012 ...... 9

Report on Bill 18-893, “Anti-SLAPP Act of 2010,” Council of the District of Columbia, Committee on Public Safety and the Judiciary (Nov. 18, 2010) 2, 6, 7, 9

Rules

D.C.App.R.25 11

D.C. App. R. 29 i, iv iv

STATEMENT OF INTEREST

Pursuant to DC. App. R. 29, the Reporters Committee for Freedom of the Press, through undersigned counsel, respectfully submit this brief as amicus curiae in support of appellants

Mark Steyn et al, and Competitive Enterprise Institute et a!. Pursuant to DC. App. R, 29 (a), this brief is filed with the consent of all parties.

Media organizations have an interest in ensuring anti-SLAPP statutes remain effective tools in protecting free speech. While all citizens who choose to speak out on public affairs benefit from anti-SLAPP statutes, which aim to deter the use of litigation to silence speech, news organizations have an even greater interest in ensuring that these statutes provide meaningful relief. is news organizations that choose every day to venture into the thick of every public controversy they can find, to make sure citizens are fully informed about their world. This engagement with important issues makes the news media more liable to be drawn in to court, particularly when a controversial figure decides to use litigation as a weapon to counter thorough reporting.

The amicus parties are: The Reporters Committee for Freedom of the Press, Advance

Publications, Inc., Allbritton Communications Company, American Society of News Editors,

Association of Alternative Newsmedia, Dow Jones & Company, Inc., The E.W, Scripps

Company, First Amendment Coalition, The McClatchy Company, The National Press Club,

NJationalPress Photographers Association, NBCUniversal Media, LLC, News Corp,

Association of America, Online News Association, LLC, Society of Professional

Journalists, Time Inc., Tribune Company, and , Each is described more fully in Appendix A. DISCLOSURE STATEMENT

Advance Publications, Inc. has no parent corporation. and no publicly held corporation owns 10% or more of its stock.

Allbritton Communications Company is an indirect, wholly owned subsidiary of privately held Perpetual Corporation and is the parent company of entities operating ABC- affiliated stations in the following markets: Washington, D.C.; Harrisburg, Pa.;

Binningham, Ala.: Little Rock, Ark.; Tulsa, Okia.; and Lynchburg, Va.

American Society of News Editors is a private, non-stock corporation that has no parent.

Association of Alternative Newsmedia has no parent corporation and does not issue any stock.

The E.W. Scripps Company is a publicly traded company with no parent company. No individual stockholder owns more than 10% of its stock.

News Corporation, a publicly held company, is the indirect parent corporation of Dow

Jones. No publicly held company owns 10% or more of Dow Jones’ stock.

First Amendment Coalition is a nonprofit organization with no parent company. It issues no stock and does not own any of the party’s or amicus’ stock.

The McClatchy Company is publicly traded on the New York Stock Exchange under the ticker symbol MNI. Contrarius Investment Management Limited owns 10% or more of the common stock of The MeClatchy Company.

The National Press Club is a not-for-profit corporation that has no parent company and issues no stock.

National Press Photographers Association is a 501(c)(6) nonprofit organization with no parent company. It issues no stock and does not own any of the party’s or amicus’ stock. interests than the

and

LLC. corporation. Washington held

laws

no

10

company,

publicly Comcast Newspaper

News

Online Time Tribune Society POLITICO

WP

percent

of

of

NBCUniversal

the

Company

No

Post

Corporation

Inc.

News commonwealth

has

of

of

traded

Company

publicly

Corporation

Professional

Company,

its

Association

a

is

LLC

1

shares.

Association

0

a

corporation

LLC

percent

is

held wholly

is

Media,

has

a

(dib/a

a

wholly

and

a

corporation

privately

of Journalists

no

of publicly

or

owned

Virginia.

its

America

is

LLC.

greater

parent

owns

The

owned

consolidated

a

not-for-profit

held

Washington

held

10%

subsidiary

company.

owns

ownership

is

It

is

subsidiary

company.

a

has

a or

corporation.

non-stock

vi

nonprofit,

10%

more

no

subsidiaries

parent

and

Post)

or

interest

of

organization.

of

of

more

corporation

Time

its

no

privately

non-stock

is

Berkshire

company.

stock.

publicly

in

a of

own

wholly-owned Warner The

Time

held

It

Washington 100%

corporation

with

Hathaway,

has

held

Warner

Capitol

Inc.,

no

no

of

company

parent

the

parent

Inc.’s

a

subsidiary

News

organized

Post

publicly

common

Inc.,

company.

stock.

corporation.

owns

Company.

Company,

a

publicly

of

equity

traded

under

more

The (2011), merits. the

they

Defendants

Superior

denials with

of statutes

reviewing which

1. orders have appealable

litigation

initial

made

at

found

The

This

defamation denying

to

The least of interest, denial This

Michael

are

Court

stages

prevent

defamation anti-SLAPP

on

District

to

meant moved

brief

will

right

three

court

blog that

preserve

of

denied

anti-SLAPP

of Mann.

be

as

a takes

to to

claims

federal

posts

to motion interlocutory

has

of litigation

decisions

irreparably

provided

confer

avoid

dismiss

cases the

Columbia

the

no

motions

a

not

about

climate based

motions,

circuits position

very

is

litigation

justify

immunity

vet SUMMARY

motions

unless

not

are

Mann’s

by

the

lost

rights

are

on

issued

enacted

orders immediately

scientist,

and

overturned

on

the prompt

prompting

controversy

speech

if

immediately

the

of

are conveyed

the not

and

two

complaint

D.C.

a

plaintiff

meritless

ARGUMENT

the denying

merits

immediately

immediately

published

OF

that

appellate

about

state sued

anti-SLAPP

anti-SLAPP

this

THE

and

the

appealable.

surrounding

to

high

defendants of

can

appealable.

matters

under

appeal.

right

defendants

claims

anti-SLAPP

the the

ARGUMENT

review.

opinion

demonstrate

courts,

case;

appealable. appealable.

important

not

the

of

statute,

against

statute,

to

D.C.

for

public

rather,

Mann’s

which

determining

under This

be

defamation

motions

exposed

anti-SLAPP

D.C.

a

role

speech

decision

interest it

Furthermore,

have

likelihood

However,

the

will

research

urges

Code

appellate

statute.

be

found

to

must

on

whether

regarding this

from

would

the

irreparably

§

a

methods

statute,

other

of

matter

court

that

costs

be

16-5501

advancing

the

success courts

be

interlocutory

anti-SLAPP immediately jurisdictions

high

to

statements

and

consistent

The

and

of

find

play

et

on

public

delays

lost rate

data.

D.C.

seq.

past

that

the

in

at

if to other

Columbia, Report”)

fact.

guidance 2013 Appeals to

Maine,’ Bt’,ic,ficja/

the (reaffirming 1565. Cir.

conclusive, collateral

‘Me

C

La.

look

decisions

purpose il

the

2010):

WL

states.

Code

2013

Rc

A.

Because

to

The

Louisiana,2

would

U.S.

(“[This

when

other 3185154.

Industrial

order

Committee

Proc

Civ.

WL Stat

First, Batzel

of [(2)]

Henrr

from

Report

Three

that that

District

interpret

the

this of

jurisdictions

5410410,

Proc.

tit

billj

(odL

doctrine

that

Fifth,

the

other are

v.

anti-SLAPP

statutes. and

at

v.

14 issue

Loan

federal

Smith.,

on

follows

nn,

lack

*3

Court

resolve

on

Lake

immediately

California,3

its

and 42

jurisdictions

Bill

556

(D.D.C.

at

has

Public

Chip.,

permits of

own

art.

333 *3

for

Charles

DC

for

Ninth

i

circuit

(1999)

precedent

the

18893. 6

surfaced.

important

971

(D.D.C.

aiiti-SLAPP (\\

guidance.

F.3d

the

statutes

337

(‘omics

Safety

model

June

respectively,

cst

(1999)

Circuits immediate

appealable.

(

District

courts

Am.

U.S.

1018

imended .

“Anti-SLAPP

1Q92)

25,

Sept.

from

.

set

and

See,

questions

v. . fall

particularly

(amended

Press.

541

2013)

(9th

for

Pac.

have

forth

law.”);

relied

of

27.

the

this

amended

e.g.,

within

2012)

(1949),

required

guidance appeal

Cir.

Columbia

2013).

Pictures Judiciary

(“Where

court in

found,

LL.

on

Boiey

separate

Abbas

2003));

a

2012).

Act

the

C..

the

number

when

in 2u

of

on

the

in

under v

finding

of collateral 566

small

Coip..

v. appropriate,

has the

interlocutory 1)

(Nov. right

Atlantic

Godin

predicting

the

from

Foreign

2010,”

issue

of

F.3d

looked

law

of

the

class

706

that

other

18,

the

v.

immediate

order

of

is collateral

164

Council Monthly

Schencks,

Policy

F.3d the

2010).

merits,

to

of

based appeals.

then,

jurisdictions

how

orders

(5th

other

anti-SLAPP

doctrine, interlocutory

1009

Gip.,

the

the

on

at

of appeals

and Grp..

Cir.

order

jurisdictions

629

it

4

Court

“that similar

the (9th

D.C.

is

LLC,

(“Committee

[]

see

2009).

F.3d

No.

appropriate

District

to

Cir.

statutes doctrine. .

will

Court

are

Cohen

.

No.

preserve

laws

that

orders

.“).

79 13—89,

2013)

look

[(I)]

The

(1st

12—

for

are

of

in In of

in

v. effectively

Comics, clearly

statute, unreviewable confer doctrine

embedded

determination, collateral

would met

immunity

“lawmakers 84-85.

at

orders finding criterion,

osts

85.

before

of be The satisfied.

immunity based

The that

The supi’a,

Looking

that

was

fighting order

imperiled

the and

in

unreviewable

Ninth

are First

concluding

wanted

Fifth

interlocutory

the met.

on

on

court

therefore

706

through

doctrine.”

immediately

appeal

Id.

Circuit the anti-S

at

a and

Circuit

Circuit

F.3d

kL

absent

a

mentles found

to

Analyzing language

Maine

protect

not LAPP

its

from The that at

unreviewable

also

on

held

orders that Id.

a

1013

analyzed enactment

merely

right

appealable. Ninth the

court’s

appeal found

final

defamation at

statute

speakers

of

anti-S

that

the

(brackets

1016.

rights

denying of

the

judgnent;

Circuit

third

that a

interlocutory the

decision

each

from LAPP requires

statute

of

on defense

The

created from

the

first

criterion, the

Henry.

appeal

claim”

in

an

criterion

the

noted

court

statutes

first

original).

and

the anti-SLAPP

two

anti—SL therefore, granting

“particular

against

final

by

two

from trial

sup/a.

and

further the

that appeal

criteria

the

the

“provide

of

criteria judgment

legislative

itself

art

final

the

court

PP interlocutory

Maine the liability.

the

566

noted

deserves

solicitude

therefore

statute,

protection of

motion

rather

judgment.

third

collateral

held

of F.3d

the

defendants

that

anti-SLAPP

the

in

history

that

criterion

than collateral

at

respect.”

that

fall

id.

collateral the “[t]he

unreiewahle

within

review,

I

of

the 73—8

order merely

under

Godin, such

underlying

behind

immunity the

the

California

California

1. of

the

order

Id. statute

right

constitutional

the

right doctrine,

the

order

the

Regarding

from

supra,

framework

it,

court

“small

collateral

on

to

doctrine

not

was

doctrine

liability.”

action,” were from

anti-SLAPP

legislature’s

free appeal

629

to

found

ultimately

meant

class”

the

bear

akin

speech

suit F.3d

of

rights

order

were

were

from third DC

that

the

the Id.

to

is to

of at tried.” final which doctrine.

First

constitutes

180. right. immediately

(Mass. irreparably collateral

litigate litigation” immediately defendants

defendant final

(amended

Thc

judgment.

Amendment

“The

judgment.

held

and

\l

B. Morse Maine

The

2002). a

DC

iss

case

order

that

irreparable loss

is that

fully

1996).

must

lost

Massachusetts nuctts

Comfcs. appealable,

similar

appeal

At Bros. from

beyond not and

right

of

free

Id. doctrine.

litigated Both

if

immediately

rights

Wcndt

First

least

immediately

at

Massachusetts4

not

speech

suit,

is

v.

to

anti

706

the 177-78.

injury.”

courts

its

lost

Amendment

government

Webster, “weighs

immediately

two

v.

Morse

even

his a

initial

SL F.3d

denial

Barnum.

high

right protections

if

case

states

\PP

focused the

appeal

“[i]mmunity though

Id.

at

Bros.,

stages. court

appealable. profoundly

that 772

case

of

after 1016.

tatutL

(quoting

have

immunity 2007

freedoms, have

an the

appealable,

A.2d

held is

supra, proceeds their each

should his

the Id.

irreparably

anti-SLAPP

interlocutory

an

likewise

Mass.

found

anti-S that

Elrod

842

Fifth

of is

in Not analyses

e

772

in not be

4

for favor

their

the

to to App.

(Me.

only

[APP that

Circuit

1’. given

which that A.2d

even simply

held

trial,

right

Burns,

statutes

of

lost

the

did on

Div.

motion, 2001):

order

at

anti-SLAPP

at appealability,”

motion minimal

greater

that

to

is noted

\i right Id.

whether

if

the

a 847;

93, avoid 427

right

denials i essentially

or

at

does

denial

high

Fabre

is

Fabre, they

96

id., that

was import Gen U.S. 177.

periods

lost

to

“the

(App. not

court

the

prevail, the

lose but of

denied, of

347.

v.

La

statutes if

Echoing

supra, harassment

explicitly

anti-SLAPP Henry,

right under

the anti-SLAPP the

importance

lEa/ton,

an find their

Div. of

373

n

defendant

time,

third

appellate but and

in

that

781 the

right

2007).

(1976)).

supra,

the

create

31

question

a

then 781

provide

collateral

unquestionably N.E.2d defendants

element

right

and

Ninth

to

of

motions

motions

N.E.2d

566

he

appeal

is In

immunity protecting

burdens court

H

net

forced

appealed

Wendt. Circuit.

at

for

will F.3d

(1’

of

order

to

784.

after

held may that

780 are

are

the be

)4

be

at

of

to

a judge

the

interlocutory

not

immediately

Maine litigating

statute A.2d

defendants

on

court

result —

D.C. The

Maine, expedited his

Furthennore.

inti—Si

a

the

anti-SLAPP

mere

right

or

D.C.

anti-SLAPP

held

dismissed

in 1226

motion high

seeks

Much

Like

her

see

APP

the

speculation

that [a]

anti-S

hearing,

that

from

likelihood (Me. court

Morse

“loss

appeal

order to

claim,”

the

motion

will like

it

and

not

prevent.”

order

LAPP permits

meritless

the

anti-SLAPP

of

found

2008).

statute

be

temporarily the

on immediately

immediately

Bros.,

the

a

and anti-SLAPP

that

lost

the along

mother

substantial

Massachusetts

denial

of

statute

that

the

forcing

confers

Morse

special

supra,

if a

litigation,”

success

The

defendant

it

with

court

anti-SLAPP

of

dLtt..,rrcnt

statutes is

is

switching

after

court

hearing

his

Bros.,

not

crafted

772

a

motion

a right.”

other

appeal

to

on

defendant

right

motion

immediately

it

award

as

A.2d

high

noted

the loses

in

supra, was

to

claims

indicated

Id an

to

to

to

the

California,

as

statutes

li’ig

merits.

at avoid appeal —

dismiss forestall

issued.

court

the

his

burden

moot

that

it

to

848,

772

mon

of

is

costs right

continue

the

appealable. a

by

the

and error.

create

A.2d

of

the

because

certainty.

and

D.C.

Id.

of

litigation.

its

costs

the

Louisiana,

under

of

statute

the

proof D.C.

1

at

provisions

at

shifts

6—04

a

litigation

denial

2007

Code

litigation

96.

848;

right

and First,

the

an

statute

to

was

the

See

Therefore,

harassment Mass,

see

anti-SLAPP

the

See

of

(a

defendant

to

Maine,

Fifth,

burden

D.C.

to an

offering

“designed

also avoid

plaintiff.

is

requires

16-5502

id.

D

a

anti-S

the App.

party (

and

Code Scheiling

Much

and

to

the

“precise in

lanni

of

failed

an

LAPP Div.

the

statute

Massachusetts,

the Ninth

(b).

Id.

who “cost Massachusetts,

meritless

§

to

expedited

like

plaintiff

Lr\

court

at

protect 16-5501

Ultimately,

(d).

v.

to

prevails motion

harm

and Circuits,

the

93-97.

if

Line/eli,

appeal

IeL

he

to -5503

statute

litigation

delay

to

that

hearing

hold

cannot

certain

et

would

gnized

prove on

The

it

942

seq.

the

the

the

(b). the

the

of

is

an

an

in that

lawsuit whether anti-SLPP rather,

the SLAPP Circuits injury continue

Nevada’s. 333 of or response Oregon’s denials

Nev.

anti-S

Nevada

trial

the

F.3d

Rev. —

this

C. The

but

motions. unique

of

the have

itself

the

LAPP

litigation

to

lawmakers

Metabolic

Stat.

1018,

anti-SLAPP

punish brief

exact

Ninth law.

underlying

statute,

Metabolic

fbund.

rather

Contrary

appeal anti-SLAPP

problem

motions

fbcuses

and

4

injury

Just

California Circuit

the

before

1.637).

then.

than

along

Research, did

Oregon’s,

opponent

as

the

Research,

merits

motions

the

with

are

not,

on

decisions the

merely

is distinguished

appealing

denial with

statute

statute

immediately

the

a

court

the

SLAPP

lawmakers

remedy

of

Inc.

the

and

importance

are

court

from Engiert

this

of

the

in

was

of

high

because i.

intimidate

immediately

the

anti-SLAPP

Godin

lawsuits

ease other

Ferrell.

Nevada held. to liability.”

meant

between

courts

denial

appealable

intended the

v.

fall

generally

courts stated,

of

See MacDoneli,

litigation

to

“is

693

them 6

legislature within

of

the

of

guard

Metabolic

California’s

629 appealable.

that

Maine

motions

an

to

F.3d

issue

“lawmakers

indicating

under into

of confer F.3d anti-SLAPP

that

the

against.

itself.

795

of

and

immediately

silence.”

551

goal

this

class

California

Research. at

immunity.

are

(9th

Massachusetts.

immunity,

anti-SLAPP

85.

This

there F.

S.B.

of

year

wanted

distinguishable

of

3d

Cir.

the

As

motion

Committee

“intimidating”

brief

286

amended

1099

is

2012),

litigation supra.

law

the

appealing

no

to

whereas

takes

Nev.

First,

but

protect

statute.

right

(9th

results

finding

693

requiring

not

its

2013) no Report

is

Cir. Fifth,

to

denials

from

F.3d

statute

not

speakers

Nevada’s

Batel,

under position

in

SLAPP

immediately

that

2009),

irreparable

(amending

to

and

at

at

a

the

party

of win

801.

Oregon

appeals

4.

so

supra,

Ninth

suits:

as from

D.C.

anti

The

that

and

and

the

to

to

In appealable,

D.C.

the its

to coip,, fundamental

751, statutory

language

‘cannot

columbia, appeal

authority,

Committee “Committee 15

attempt statute

discern

legislative

judicial

A.3d

anti-S

754

Like

This

15

Lawmakers

to

There

but

prevail

to

language (D.C.

at

of

A.3d

include

the

LAPP

based

hut 392

extrapolate

California task court

Report

238

the later

principles

agrees

history.

is

intent

the

A.2d

over

219,

1983)

statute,

no

is

(quoting

statute.

has

this removed

the

legislative

in

to

at

originally

with need

strong 238

of

1027.

long

several

(‘This

A.)?.

right

7. discern,

lawmakers.

court’s

the

of

the

Peoples

and

(D.C.

here,

The

Even

recognized law,”); Citizens

lawmakers’

1033 v.

contrary to

legislature

it

court

supports

history

different

F.C..

statute

immediately

included

solely

as and

decision

2011)

after

(D.C.

Drug

in

Peoples

D.C.

has

Ass 33

give

indications

past

has

lawmakers

is

(en

the because

the

A.3d

situations.”).

Stores,

1978)). found

and,

intent.

‘n silent

a

lawmakers

much

effect

in

cases,

provision importance purpose

bane)

of

Drug

appeal

Stuart 403, as

Georgetown

it

as

supra,

to

necessary,

D.C. they to,

appropriate

for

in

(“In

to removed

Stores,

405

say,

of

the

the

the whether

intended

this

v.

panting

lawmakers

thought this interpreting

While

of

470 (D.C.

denial legislative

legislature’s Walker,

court

interpreting

Inc.

provision.”

the

A.2d

whether

v.

interlocutory

to

the 2011)

to

of

Zoning a

v.

provision, to

the

look

defendant confer

court

6

a

at

District

clearly

interpret

history

statutes,

special

provision

A.3d

(“When

753,

that

beyond

intent.”);

a

Id.

Comm

must

statute immunity

“the

intended

intent

the

of

1215

orders

motion

ambiguous

the

judicial

interpreting

look

the Golumbia,

report

‘ii

words

might

through

right

Grayson

is

of (D.C.

plain

are

first

Grayson,

from

to

consistent

the

the

tribunals

noted

of

dismiss. immediatel [of

exceed

anti-SLAPP

meaning

at language

2010); the

District

suit

immediate

470

a a v.

the

statute, that statute]

lens

AT&T

supra,

in

A.2d

plain

seek with

their

the

The

see

the

of

of

of

or Research. D.C.

immediate

in

legislative

legislative coherent

conclusion:

denial

II.

the

about greater

rights

established.

commitment Bose Court’s

Grayson,

purpose

anti-SLAPP

Corp.

of

and

speech

The

The frequency At review.

The

import

tear

interpretation,

an

supra.

history

its appeal

supports

history.

clear

the

anti-SLAPP .

important

the

importance of

that

heart,

See

to

on

Consumers

in

statute

an

693

the

intention

and

Hone-flanks words issues

light

with decisions statute

the

anti-SLAPP this

The

free

F.3d

confer

confers

interest absent

of

case which

role

motion

of

[of

of

15

statute

exchange

Union.

is

the

of

at

public

A.3d

by

is

a immunity

searching

distinct appellate the

801:

contradiction,

role

defamation about

in statute]

immunity

Communications

tncrs

is

motion

may

D.C.

466 allowing

at

not

Engiert,

interest

appellate

238. of

getting

ot

U.S.

immediately from

be

lawmakers

is

cannot

ideas,”

appellate

tact courts —

clear Yet from

read

interlocutory

485.

avoidance —

decisions

supra.

the

may an

courts

is

this

8

in

litigation,

together

action

Uonnaughton,

prevail play

505

not

Oregon

v.

inhibit

D.C.

court

to review

55

appealable.

C’onnaughion,

often

(1984).

frustrated.

permit

in

1

are

of before

‘s

F.3d

over

need

appeals.

with

thc

rev

legislative

litigation

and

and

overturned

play

in

iewing

immediate

expression

at

Because

an

strong

not

defamation

that

the

evada

supra,

in

1105—06. Such

appellate

go

recoizing

legislative 491 right

over

history.

defamation

so

contrary

of

appellate

491

justify

US,

appeals far

statutes,

ot

is

Jo]ur

non-meritorious

as

court

protected cases

irreparably

as

U.S.

the

657.

As

to

history

indications

prompt

First

profound

promptly,

review

leads

intent

this

seek

at

see

has

cases

685-86

686.

Amendment

ideas, court

‘contrary’

Metabolic to

to

long

lost

to

appellate

has

and

a

national

form

and

(1989): ensure

so

claims in

single

noted

if

even been Bose

that

the

the

the

the

a independently Corp.,

Bose

defamation won modify

that Media

issues

nearly became MLRC

a appellate

lengthy

waste

were

58.7 (Joip.,

L. convincing The

of Constitution, not This sufficient supra, 70

The

nearly

2012

and

too

of

appealed, Resource

review

public

percent percent

merely question

decisions

supra,

D.C.

the

burdensome,

costly

heightened

review

Report

466 70

court’s

to

anti-SLAPP interest of

percent

of

clarity of

466

litigation

Center. cross

or

denials U.S.

a

must

whether defamation

trial

their

overturned

67.4

on

question

U.S.

limited

the

appellate

required

could

court at

acting

of

7}ials

independently

cases

percent, Feb.

of

at

that constitutional

those 505,

the

statute

anti-SLAPP 511.

findings

quickly

time 2012,

for decisions

as

ultimately at

and

or

evidence

to

the

decisions.

review

were

a trial,

modified.

was strip

the

and punishment

at

Damages.

Supreme

of

have

36

reversed

enacted but

decide

trier the

resources

that threshold

defamation,

motions.

in

leads

has

tbl.1,

defendants utterance

meritless

the

See

9

defendants

of

Between

had

whether to

so Court

74 supra,

or

in record

MLRC

fact.

an

that

to .

tbl.12A modified).

itself

It

a

appeals

of Bose is

allow

claims

significant

defendants has

who Judges,

it in

not

First

1980 2012 the

appeal

is Committee

a

Cotp.supra.

(reporting

only held

a

evidence defamation appealed

process

Amendment

imperative

dismissed

and

Report

defamation

are

as

burdensome

that

in

impact

2011.

overturned

expositors

cases

it

that

on

Report were

in

appellate

is

before

case 466

defamation Trials

to not

the

protection

145

claim involving on

able

permit

likely U.S.

on record

at is

out

the

or

litigation

and

of

of 4.

the judges

to

to

reversed,

at

of215

number

to

the the

linger reverse Given

Damages, parties immediate

505.

speech

is

is

plaintiffs

survive.

must

cases

costs

in

that

see

but

on of or

a court

motions.

houId

For

the

accept

reasons

jurisdiction

gIen

aboe,

to

as

hear

(ONCU

eI1

an

Respectfully Gregg The

Telephone: Arlington,

as 1101

appeal

Counsel those for

Reporters

Vilson SION

Freedom

P.

gicn

sIie of

VA

(703)

for

the

submitted.

Blvd.,

Committee

22209

Amicus

in

of

denial

807-2100

the

the

Suite

response

Press

Curiae

of

1100

appellants’

of

the

appellant,

anti-S

L\PP

the with 40

systems mingham, affiliated broadcast

site

tion

bership its

priorities Society papers.

and

to reach

130

cities

name

the

WJLA.com.

that

nationwide

Washington

alternative

of

mainstream

Advance

Alibritton

With

Association

to

serving

of

throughout

includes

in

over television

on

station

Ala.:

editors

Newspaper

April

improving

some

25

Little over

circulation,

Publications,

An

WJLA-TV,

City

million

2009

Communications

directing

of

500 press.

stations

the

of

afliliated

online

2.3

Rock,

Paper.

Editors, Alternative

to

members.

United

freedom

APPENDIX

million

readers.

AAN

American

editors

news

in

in newspapers

Ark.:

AAN

the

Inc., company

the

North

ASNE

States.

members

subscribers. of

24-hour

providers

American

following

Tulsa.

of

Newsmedia

directly

newspapers

Company

information.

Society

America,

daily

A:

is

It

operates

in

also

active

have OkIa.;

DESCRIPTION local

over

newspapers

and

and

of Society

markets:

owns

is

a

News

news including

11

(“AAN”)

in

and

through

academic

the and

20

total

diversity.

the

a

many

cities

number parent

their

of

Lynchburg.

ABC

service,

weekly

Editors

Washington,

News

throughout

its

websites

weekly is

and

Internet

leaders.

affiliate

company

readership

subsidiaries,

a

OF

of

not-for-profit NewsChannel

circulation

and

Editors weekly

areas

AMICI

Va.

papers

approved

sites

Founded provide

in

the

D.C.;

of of

In

business

(‘ASNE”) Charleston.

and

Americas.

and

entities

interest

Washington,

publishes

like

of

Harrisburg,

the

an

has trade

seven

broadening

in

8

The

editorial

credibility

and

1922

journals

operating

interests

to

is

association

Village

ASNE S.C. million

top

the

iS

an

as

it

Pa.;

magazines

editors

organiza

news

American alternative

operates

in

its

in

of

changed

Voice

ABC-

and

over

Bir

mem

cable

news

web-

for

with

a publisher

publications.

Dow 2.000

Compliance, television

tion.

ABC

home and

fending levels, parency resist

crets)

nity in

Founded

the

community

The nespapers

Jones

affiliates,

journalists

of excessive

and

tnited

Dow

more The

First

The

The

free

and

the

of

company’s

in

stations.

censorship

also

F,W.

The

Jones McClatchy National

Scripps

Amendment

1908

speech,

an accountable

and Dow

States

three

informed provides

newspapers

government

Wall

in

and

Dow

Scripps

Jones

& the

newspapers,

more

with Howard

free

portfolio

Company.

NBC

niche

Press

of

Street

Club

Jones

Company.

maintains all

information than

press

to

Company

electorate 30 Coalition

affiliates,

publications.

Club

kinds.

has

the

in

Journal,

daily

secrecy VentureSource.

News

fifty

of

and

13

people.

3,100

local

Inc.,

is

locally

markets;

newspapers

through one

countries

the open

is Service.

is

are

(while one

Barron’s, a

news

services,

members a

a

global

world’s

of

The nonprofit essential

diverse,

focused

government

independent

the

and

its and

recognizing

Coalition’s

publishing

Dow

world’s

provider

affiliates,

and

including

MarketWatch.

leading

information

the

rupresenting

131-year-old

media to

public

Jones

related

Washington-based

a

self-governing

rights

largest

and

of

professional

properties

mission

news

is the

interest

is

Dow

news

websiles five

the

a

in

websites

need

most

News

newsgathering

in

media

order Dow

third-largest

Jones

Spanish-language

and

assumes

organization

several

to

major

includes:

Corporation

as business

Jones

protect

organization

to

democracy.

enterprise Factiva,

and

well

Scripps

make

different

news

that licensing

Newswires,

newspaper

as

legitimate

19

operations,

government, information,

Dow

dedicated

government

numerous

organizations

Media

TV

with

company.

To

for

stations);

languages.

Jones

and

stations

that

interests

journalists.

Center,

state

publisher and

syndica

to

with

commu end,

Risk

is at

trans

de

other

daily

se

(ten

the

all

The

we

in

& ‘3

Club defends a free press worldwide. Each year. the Club holds over 2.0(X)events, including news conferences, luncheons and panels, and more than 250.00() guests come through its doors.

The National Press Photographers Association (“NPPA”) is a 501(c)(6) non-profit organ ization dedicated to the advancement of visual journalism in its creation, editing and distribution.

NPPA’s approximately 7,000 members include television and still photographers. editors, stu dents and representatives of businesses that serve the visual journalism industry. Since its found ing in 1946. the NPPA has vigorously promoted the constitutional rights ofjournalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. The submission of this brief was duly authorized by Mickey H. Osterreicher, its General Counsel.

NBCUniversal Media, LLC is one of the world’s leading media and entertainment com panies in the development, production and marketing of news, entertaimnent and information to a global audience. Among other businesses, NBCUniversal Media, LLC owns and operates the

NBC television network, the Spanish-language television network Telernundo. NBC News. sev eral news and entertainment networks, including MSNBC and CNBC, and a television-stations group consisting of owned-and-operated television stations that produce substantial amounts of local news, sports and public affairs programming. NBC News produces the “Today” show,

“NBC Nightly News with Brian Williams,” “Dateline NBC” and “Meet the Press.”

News Corp is a global, diversified media and information services company focused on creating and distributing authoritative and engaging content to consumers throughout the world.

The company comprises leading businesses across a range of media. including: news and infor mation services, digital real estate services, hook publishing. digital education, and sports pro gramming and pay-TV distribution. 14

cnspaper :\ssociation of America (“AA”) is a nonprofit organization representing the interests of more than 2.flt)Onewspapers in the Lnited States and Canada. NAA members ac count for nearly 90° o of the daily newspaper circulation in the and a wide range of non-daily newspapers. The Association focuses on the major issues that affect today’s newspaper industry, including protecting the ability of the media to provide the public with news and infor mation on matters of public concern.

Online News Association (ONA”) is the world’s largest association of online journalists.

ONA’s mission is to inspire innovation and excellence among journalists to better serve the pub lic. ONA’s more than 2,000 members include news writers, producers. designers, editors, blog gers. technologists. photographers. academics, students and others who produce news for the In ternet or other digital delivery systems. ONA hosts the annual Online News Association confer ence and administers the Online Journalism Awards. ONA is dedicated to advancing the interests of digital journalists and the public generally by encouraging editorial integrity and independ ence. journalistic excellence and freedom of expression and access.

POLITICO LLC is a nonpartisan. Washington-based political journalism organization that produces a series of websites. video programming and a newspaper covering politics and public policy.

Society of Professional Journalists (“SPJ”) is dedicated to improving and protecting jour

nalism. It is the nation’s largest and most broad-based journalism organization. dedicated to en

couraging the free practice of journalism and stimulating high standards of ethical behavior.

Founded in 1909 as Sigma Delta Chi, SPJ promotes the free fio of information ‘ ital to a well-

informed citizenry, works to inspire and educate the next generation of journalists and protects

Firt Amendment guarantees of freedom of 5peLl1 and press. 15

Time Inc. is the largest magazine publisher in the United States. It publishes over 90 ti tles, including Time, Fortune, Sports Illustrated, People, Entertainment Weekly, InStyle and Real

Simple. Time Inc. publications reach over 100 million adults, and its websites, which attract more visitors each month than any other publisher, serve close to two billion page views each month.

Tribune Company operates broadcasting. publishing and interactive businesses, engaging in the coverage and dissemination of news and entertainment programming. On the broadcasting side, it owns 23 television stations, a radio station, a 24-hour regional cable news network and

“Superstation” WGN America. On the publishing side, Tribune publishes eight daily newspapers

Tibune, Hartford (Conn.) Courant. . (Central

Florida), The () Sun. The (Allentown. Pa.) Morning Call, (Hampton Roads. Va.) Daily

Press and Sun-Sentinel (South Florida).

\VP Company LLC (d/b/a The Washington Post) publishes one of the nation’s most prominent daily newspapers, as well as a website, www.washingtonpost.com, that is read by an

average of more than 20 million unique visitors per month. Richard 4 New Sahin,

Counsel

Jerald

Legal Senior

and Alibritton Arlington,

Kevin

Arlington. Fletcher.

Counsel 1000

1300 Kevin Arlington, Fletcher,

Counsel

Mark Jason 1300 Dow New

7th Vice Da\id 1211 The

Deputy Cincinnati. 312

Times

Editors General

Newsmedia

Floor

York.

Walnut

E.W. Wilson

N.

York, N.

Jones and

N. President! Avenue

Bermant

H.

M. P.

Vice

M.

M.

A.

Square.

for

General

17th

for

17th for

Fritz Conti Heald

Jackson

Heald

Goldberg

Strategic Communications

Goldberg

VA

Giles

VA

Bernstein

NY Scripps

VA

Ad\ance

President &

NY

American

Counsel

01-1

Association

St.. Blvd.,

St.,

St.,

of

Company,

22209

22209

22209

&

10036

&

&

23rd

45202

10036

Suite the Counsel

11th

Gould

11th

Hildreth.

Hildreth,

Company

Affairs

Suite

Americas

APPENDIX

Publications.

Floor

Floor

280() Society

Floor

of

LLP

Inc.

2700

Alternative

Company

PLC

PLC

of

Nes

B:

Inc.

ADDITIONAL

16

Peter First 534

The Juan San

Karole 2100

Holland Sacramento, Charles Washington, 800 Suite Counsel

Mickey

Buffalo, Counsel

NBCUniversal Vice 1100 New Beth 30

News New Eugenic

Covington Kurt

1211 Counsel Washington,

1201

COUNSEL:

Rockefeller

phers

Rafael, Fourth

McClatchv

of

1

Amendment

Comejo

Scheer

Q

R. President, York, 7th

M&T

York,

Wimmer

1100

Avenue

Pennsylvania

Corp

Morgan-Prager

America

Street

D.

H.

&

Lobel,

for

NY

for

Gavenchak

Street,

fdr

Association

Tobin

Knight

St.,

Osterreicher

CA

&

Center,

NY

NY

The

National

CA

the

DC

14203

DC

Burling of

Suite

Esq.

Plaza 94901 fvledia,

Company

Media

NW

10112

Newspaper

10036 National

95816

the

20006

Coalition

20004

LLP

3

Ave.,

Americas

B

Press

Fountain

LLP

Law

LLC

Press

NW

Photrnua

Association

Plaza,

Club 1

Jonathan D. Hart Karen H. Flax Dow Lohnes PLLC Assistant General Counsel 1200 Me., NW Publishing & Litigation Washington, DC 2003o fribune Company Counsel for Online News Association 220 F. 42nd St., Suite 400 New York, NY 10017 Jerald N. Fritz Vice President and General Counsel John B. Kennedy POLITICO LLC James A. McLaughlin 1000 Wilson Blvd., Suite 2700 Kalea S. Clark Arlington, VA 22209 The Washington Post 1150 15th Street. N.W. Andrew Lachow Washington, D.C. 20071 Vice President and Deputy General Counsel — Litigation Time Inc. 1271 Avenue of the Americas New York, NY 10020 consent, licted I

ANDREW MARK I3RLCE DAVID Attorneys/or BAKERHOSTETLER (202) Washington Washington, agrossman and

competitive

1050

hereh

Rand

Connecticut

below

861-1770

I.

on B. certlf\

BROWN

BAILEN

Si,nherg

RIVKIN. M.

this

Square,

Enterprise

bakerlaw.

in

D.C.

Appellants

GROSSMAN

that

accordance the

Avenue.

20036

13th

a

Suite

JR.

true

corn

LLP

Institute

day

and 1100

NW.

‘ith

of

correct

Noember, CERTIFICA

D.C.

cop\

App.

The

Gregg.

Arlington,

1

lelephone:

1

0

2013.

tbr Counsel

of

1

Reporters R.

FE

Wilson

the

is

Freedom

P.

25

OF

Attorneys THOMAS JAMES

Leslie (202) Washington, SHANNEN Review. STEPTOF Attorneys JOHN scoffinlä.

CATHERINE COZEN

Washington, 1330

jbwiIliarnscozen.corn

1627

foregoing

VA

via

(703)

for

SERVICE

Blvd

Com.mittee

2.. Connecticut electronic

1

429-6255

of

Imicus

B.

Street,

209

57—21

Inc.,

MOORHE\D .

O’CONNOR

the

steptoe.corn

Jd

WILLIAMS

jbr

Suite

CONTOIS v

&

r

W.

as

Press

D.C.

D.C. and

Appellants

JOHNSON Appellee

Curiae

NW,

ROSATO

00

served

COFFEN

mail,

I

1

.fark

Ave..

20036

00 20006

Suite

with

P.C. on

Michael

Stein

N.W.

National

REILLY

1100

LLP

all

all

counsel

parties’

E.

Mann

of

ritten

record