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No Anti-SLAPP, Sherrod Defamation Suit Can Go On, Says 8th Cir.

By Aditi Mukherji, JD on June 01, 2013 | Last updated on March 21, 2019

The D.C. Circuit Court of Appeals is allowing a defamation lawsuit to proceed against late conservative blogger Andrew Breitbart filed by former U.S. Department of Agriculture official Shirley Sherrod.

A three-judge panel affirmed a court order denying Breitbart's motion to dismiss the case under the District of Columbia's law barring SLAPPs.

If you're hoping for a substantive answer on whether the anti-SLAPP law applies in federal court, don't hold your breath. The decision was made on procedural grounds -- not on its merits.

The anti-SLAPP law, passed by the D.C. Council in March 2011, offered defendants an early route to dismissal if they believed they were sued over protected speech. The lower court denied O’Connor and Breitbart’s anti-SLAPP motion on three grounds:

  1. The defendants missed the deadline to file;
  2. The anti-SLAPP law couldn’t apply retroactively to lawsuits filed before it went into effect; and
  3. The anti-Slapp law doesn’t apply in federal court.

The D.C. Circuit took up the case, but affirmed the lower court’s ruling on the grounds that Breitbart, who died last year, and O’Connor missed the deadline to file an anti-SLAPP lawsuit. Under the statute, an anti-SLAPP motion must be made within 45 days of service.

Local lawyers may perceive the ruling as a missed opportunity to resolve whether the anti-SLAPP law can apply in federal court, a question which has plagued and splintered judges on the Washington federal bench.

At the end of the day, Breitbart and O’Connor couldn’t get the dismissal, so the case will trudge on. Sherrod’s defamation lawsuit alleges Breitbart, his colleague Larry O’Connor and a third defendant posted deceptively edited content online, making it seem as though Sherrod, who is black, made statements admitting she discriminated against white farmers.

The D.C. Circuit will have another opportunity to weigh in on the use of anti-SLAPP motions in federal court in a defamation lawsuit against Esquire Magazine, reports The Blog of Legal Times.

In that case, online publisher Joseph Farah sued over a blog post about his challenge to President Barack Obama’s eligibility to serve as president. U.S. District Judge Rosemary Collyer, finding the article was satire, granted Esquire’s motion to dismiss under the anti-SLAPP law, and Farah appealed.

Arguments have not been scheduled.

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