Palestine and Erie: Abbas, Defamation, and anti-SLAPPs
Somewhere on the periphery of Middle East politics there is the story of Yasser Abbas, businessman and son of Mahmoud Abbas, the leader of the Palestinian Authority. In 2012, Foreign Policy magazine published an article questioning the sources of Yasser Abbas’ wealth.1 Abbas then sued the magazine over the article’s publication. The District Court for the District of Columbia dismissed the suit under the special motion to dismiss of the District’s recently enacted anti-SLAPP statute.2 This year, Abbas unsuccessfully appealed dismissal of his defamation suit. In Abbas v. Foreign Policy Group,3 the D.C. Circuit held that D.C.’s special motion to dismiss, D.C. Code § 16-5502(a), did not apply in federal courts sitting in diversity. Employing the analysis in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co.,4 the D.C. Circuit found that Rules 12 and 56 govern in a federal diversity case.5 The court denied application of the D.C. special motion to dismiss. What does this mean for media organizations who speak out on issues of public concern?
Not much. They may lose one tool for handling certain aggressive defamation suits. They still have access to Rule 12 and to state decisional law.
For one, the federal appeals court still dismissed plaintiff’s defamation claim under Rule 12(b)(6). Because defendant’s allegedly libelous remarks were questions not implying a false assertion of fact, the statements were not found to be defamatory. Plaintiff had failed to state a claim.
The court entered into an Erie analysis. It first found a conflict between the Federal Rules and § 16-5502(a); both “answer the same question” as to the circumstances when a court must dismiss a case before trial. To survive a § 16-5502(a) special motion to dismiss, a plaintiff must show that it is likely to succeed on the merits.6 The Federal Rules form an exclusive, integrated, and less stringent program for determining pretrial judgment in federal court. Therefore, the Court found the Federal Rules broad enough to displace § 16-5502(a).7
The court then found that Rules 12 and 56 did not violate 28 U.S.C. 2072(b), the Rules Enabling Act. The Rules Enabling Act states that Federal Rules “shall not abridge, enlarge or modify any substantive right.” Citing the plurality, the court found that Rules 12 and 56 “really regulate procedure.” Therefore, Rules 12 and 56 applied, and the court denied defendant’s special motion to dismiss.
Media organizations, however, should not fear. While one state tool for dismissing frivolous claims no longer applies in federal court, there is still the old standby, Rule 12(b)(6). Applying the familiar plausibility pleading standard, the court held that defendant had not made a defamatory statement about Abbas. Defendant had merely asked questions. “Question[s],” the court said, “‘however embarrassing or unpleasant to its subject, [are] not accusation.’” The court then remarked that questions had rarely given rise to successful defamation claims in other jurisdictions. While this court answered a pair of questions—whether published questions amount to defamatory statements, whether media defendants can still publish freely without such a state safeguard—it still leaves room for another big question: How long until the Supreme Court takes a case like this?
Jonathan Schanzer, The Brothers Abbas, Foreign Policy (June 12, 2012), http://foreignpolicy.com/2012/06/05/the-brothers-abbas/ [https://perma.cc/VC4B-2TRG].↩
783 F.3d 1328 (D.C. Cir. 2015).↩
559 U.S. 393 (2010).↩
Abbas, 783 F.3d at 1332.↩
AB Page; see § 16-5502(a).↩
The court also rejected claims defending the provision as applicable because: (1) it is simply another layer to add to a Rule 56 summary judgment motion; (2) the special motion is another way of creating a form of qualified immunity; (3) the Federal Rules, as evidenced by Congressional amendment (e.g., the Private Securities Litigation Reform Act of 1995) are not to be rigidly construed; and (4) other Courts of Appeals have found so. ↩