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ORAL ARGUMENT NOT YET SCHEDULED Nos. 12-7012, 12 ORAL ARGUMENT NOT YET SCHEDULED Nos. 12-7012, 12-7017 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 3M COMPANY, Plaintiff-Appellee, v. LANNY DAVIS, et al., Defendants-Appellants, And DISTRICT OF COLUMBIA Intervenor-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Case No. 11-CV-01527 (Hon. Robert Leon Wilkins) BRIEF OF AMICI CURIAE MEDIA ORGANIZATIONS IN SUPPORT OF DEFENDANTS-APPELLANTS AND REVERSAL Laura R. Handman Micah J. Ratner DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, N.W., Suite 800 Washington, DC 20006 (202) 973-4200 (202) 973-4499 [email protected] [email protected] Counsel for Amici Curiae September 24, 2012 OF COUNSEL ADVANCE PUBLICATIONS, INC. HEARST CORPORATION Richard A. Bernstein Jonathan R. Donnellan Sabin, Bermant & Gould Kristina E. Findikyan 4 Times Square 300 West 57th Street New York, NY 10036 New York, NY 10019 ALLBRITTON THE MCCLATCHY COMPANY COMMUNICATIONS COMPANY Karole Morgan-Prager and POLITICO LLC Stephen J. Burns Jerald N. Fritz 2100 Q Street 1000 Wilson Boulevard, Suite 2700 Sacramento, CA 95816 Arlington, VA 22209-3921 NBCUNIVERSAL MEDIA LLC ATLANTIC MEDIA, INC. Susan Weiner Bruce Gottlieb Chelley E. Talbert The Watergate 30 Rockefeller Plaza 600 New Hampshire Avenue, NW #4 New York, NY 10112 Washington, DC 20037 THE NEW YORK TIMES DOW JONES & COMPANY, INC. COMPANY Mark H. Jackson David E. McCraw Jason P. Conti 620 Eighth Avenue Gail C. Gove New York, NY 10018 1211 Avenue of the Americas, 7th Floor New York, NY 10036 THE NEWSPAPER ASSOCIATION OF AMERICA FOX TELEVISION STATIONS, Kurt Wimmer INC. Covington & Burling LLP Susan E. Seager 1201 Pennsylvania Avenue N.W. 2121 Avenue of the Stars, Suite 700 Washington, DC 20004 Los Angeles, CA 90067 NPR, INC. GANNETT CO., INC. Joyce Slocum Barbara W. Wall Denise Leary 7950 Jones Branch Drive Ashley Messenger McLean, VA 22107 635 Massachusetts Ave., N.W. Washington, DC 20001 i PRO PUBLICA, INC. Richard J. Tofel 55 Broadway, 23rd Floor New York, NY 10006 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Gregg P. Leslie Kristen Rasmussen 1101 Wilson Boulevard, Suite 1100 Arlington, VA 22209 TIME, INC. Andrew B. Lachow Judith R. Margolin 1271 Avenue of the Americas New York, NY 10020 TRIBUNE COMPANY David S. Bralow 220 E. 42nd Street, Suite 400 New York, NY 10017 THE WASHINGTON POST Eric N. Lieberman James A. McLaughlin 1150 15th Street, NW Washington, DC 20071 ii CERTIFICATE OF PARTIES, RULINGS AND RELATED CASES All parties and amici appearing in this Court, rulings under review, and related cases are listed in the Briefs for Defendants-Appellants Lanny Davis, et al., Defendants-Appellants Larry O’Connor, et al., and Intervenor-Appellant the District of Columbia, except for additional amici curiae Advance Publications, Inc., Fox Television Stations, Inc., The McClatchy Company, The Newspaper Association of America, Pro Publica, Inc., Time, Inc., and Tribune Company and additional amicus curiae in Sherrod v. Breitbart, American Civil Liberties Union. STATUTES AND REGULATIONS District of Columbia’s Anti-SLAPP Act of 2010, D.C. Code § 16-5501 et seq and the Report on Bill 18-893, “Anti-SLAPP Act of 2010,” Council of the D.C. Committee on Public Safety and the Judiciary (Nov. 18, 2010) (“Committee Report”) are reproduced in the addendum to the Briefs for Defendants-Appellants and Intervenor-Appellant. The orders in Dean v. NBCUniversal Media, LLC, No. 2011- CA-006055-B, at 3 (D.C. Super. Ct. June 25, 2012) (Memorandum and Order) and the Feb. 8, 2012 Order are attached in the Addendum here. iii CORPORATE DISCLOSURE STATEMENT Under Circuit Rule 29(b), Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate Procedure, and Circuit Rule 26.1, undersigned counsel for amici curiae certify that, to the best of our knowledge and belief: Advance Publications, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock. Atlantic Media, Inc. is a privately held, integrated media company, and no publicly held corporation owns 10% or more of its stock. News Corporation, a publicly held company, is the indirect parent corporation of Dow Jones & Company, Inc. (“Dow Jones”), and Ruby Newco LLC, a subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow Jones. No publicly held company owns 10% or more of Dow Jones’ stock. Fox Television Stations, Inc. is a wholly owned, indirect subsidiary of News Corporation, a publicly held company. No publicly held company owns 10% or more of News Corporation stock. Gannett Co., Inc. is a publicly traded company and has no affiliates or subsidiaries that are publicly owned. No publicly held company holds 10% or more of its stock. Hearst Corporation is a diversified, privately held media company. No publicly held company owns 10% or more of its stock. iv The McClatchy Company is a publicly traded Delaware corporation. Contarius Investment Management Limited owns 10% or more of the stock of The McClatchy Company. NBCUniversal Media LLC is indirectly owned 51% by Comcast Corporation and 49% by General Electric Company, which are both publicly traded. Neither Comcast Corporation nor General Electric Company has a parent company, and no other publicly held company owns 10% or more of their stock. The New York Times Company is a publicly traded company and has no affiliates or subsidiaries that are publicly owned. No publicly held company owns 10% or more of its stock. Newspaper Association of America is a non-stock corporation with no parent corporation, and no publicly held corporation owns 10% or more of any form of interest in the Newspaper Association of America. NPR, Inc. has no parent company and does not issue stock. POLITICO LLC is a wholly owned subsidiary of privately held Capitol News Company, LLC. Pro Publica, Inc. (“ProPublica”) is a Delaware nonstock, nonprofit corporation. The Reporters Committee for Freedom of the Press is an unincorporated association of reporters and editors with no parent corporation and no stock. v Time Inc. is a wholly owned subsidiary of Time Warner Inc., a publicly traded corporation. No publicly held corporation owns 10% or more of Time Warner Inc.’s stock. Tribune Company is a privately held company. WP Company LLC d/b/a The Washington Post is a wholly owned subsidiary of The Washington Post Co., a publicly held corporation. Berkshire Hathaway, Inc., a publicly held company, has a 10% or greater ownership interest in The Washington Post Co. WJLA-TV and NewsChannel 8 operates as a division of Allbritton Communications Company. 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; Harrisburg, Pa.; Birmingham, Ala.; Little Rock, Ark.; Tulsa, Okla.; and Lynchburg, Va. Under Circuit Rule 26.1(b), the general nature and purpose of the Media Amici is to gather and disseminate the news, and to advocate for robust First Amendment protections for journalists and the news media. vi TABLE OF CONTENTS CERTIFICATE OF PARTIES, RULINGS AND RELATED CASES ......................... iii STATUTES AND REGULATIONS ............................................................................. iii CORPORATE DISCLOSURE STATEMENT .............................................................. iv GLOSSARY ................................................................................................................... xv CERTIFICATE OF IDENTITY, INTEREST, AND AUTHORITY TO FILE ............ xv CERTIFICATE UNDER FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(5) ............................................................................................................. xxii ARGUMENT ................................................................................................................... 1 THE ANTI-SLAPP ACT SHOULD APPLY IN FEDERAL COURT ........................... 3 A. D.C.’s Anti-SLAPP Act Broadly Applies to Claims Against the Media That Target the Exercise of Free Speech on Issues of Public Interest ................... 3 B. The Anti-SLAPP Act’s Substantive Protections Apply in Diversity Actions .................................................................................................................... 6 1. Every Circuit Court to Face the Question Has Concluded that Anti-SLAPP Statutes Apply in Diversity Cases ................................................. 9 2. Anti-SLAPP Statutes in Practice Supplement, Rather than Supplant, Rules 12 and 56 ................................................................................................ 11 3. The Anti-SLAPP Act Is Part of D.C.’s Framework of Substantive Rights and Remedies ......................................................................................... 19 4. Applying Anti-SLAPP Act in Federal Court Serves Erie’s Twin Aims .......... 27 CONCLUSION .............................................................................................................. 29 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a)(5)-(7) vii CERTIFICATE OF SERVICE viii TABLE OF AUTHORITIES Page(s) CASES 3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012) .................................................................. 8, 11 Albergo v. Immunosyn Corp., 2011 WL 197580 (S.D. Cal. Jan. 20, 2011) ....................................................... 24 Armington v. Fink, 2010 WL 743524 (E.D. La. Feb. 24, 2010) .................................................
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