Doe v. Burke, 13–CV–83.

• Decision Date: 29 May 2014
• Docket Number: No. 13–CV–83.,13–CV–83.
• Citation: 91 A.3d 1031
• Parties: John DOE NO. 1, Appellant v. Susan L. BURKE, Appellee.
• Court: D.C. Court of Appeals

91 A.3d 1031

John DOE NO. 1, Appellant

v.Susan L. BURKE, Appellee.

No. 13–CV–83.

District of Columbia Court of Appeals.

Argued Jan. 29, 2014.

Decided May 29, 2014.

Christopher J. Hajec, with whom Michael E. Rosman, Washington, DC, was on the brief, for appellant.

William T. O'Neil, Bethesda, MD, for appellee.

James A. McLaughlin, Washington, DC, for amicus curiae Reporters Committee for Freedom of the Press, the American Civil Liberties Union of the Nation's Capital, American Society of News Editors, Digital Media Law Project, Gannett Co., Inc., the McClatchy Co., National Press Photographers Association, and the Washington Post. Bruce D. Brown and Gregg P. Leslie were on the brief for amicus curiae.

Before EASTERLY, Associate Judge, and SCHWELB and FARRELL, Senior Judges.

EASTERLY, Associate Judge:

A “strategic lawsuit against public participation” or “SLAPP” is a lawsuit “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.” D.C. Council, Comm. on Pub. Safety and the Judiciary, Report on Bill 18–893 (“Comm. Report”) at 1 (Nov. 18, 2010). SLAPPs “masquerade as ordinary lawsuits,” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.2003) (internal quotation marks omitted), but a SLAPP plaintiff's true objective is to use litigation as a weapon to chill or silence speech. The District recently enacted the D.C. Anti–SLAPP Act to protect the targets of such suits. D.C.Code § 16–5501 to –5505 (2012 Repl.). Invoking this statute, anonymous speaker John Doe No. 1 filed a special motion to quash a subpoena issued by Susan L. Burke seeking his identifying information. SeeD.C.Code § 16–5503. The trial court denied the motion and John Doe No. 1 now seeks interlocutory review. Addressing the Anti–SLAPP statute for the first time, we begin by assessing whether the denial of a special motion to quash under the statute may be immediately appealed to this court. We answer that question in the affirmative and then consider whether the trial court correctly denied the special motion to quash. We determine that it did not. Accordingly, we reverse.

I. Facts ¹

Appellee Susan L. Burke is an attorney based in the District of Columbia who litigates in state and federal courts across the country. She founded her own law firm to pursue her interest in human rights litigation and a focus of her practice is advocacy for those allegedly harmed by the misconduct of U.S. military personnel and government contractors. For example, Ms. Burke represented a group of former detainees held at Abu Ghraib prison in Iraq in their suit against federal government contractors working at that site. In 2007, Ms. Burke filed a civil lawsuit seeking to vindicate the rights of Iraqi civilians and their families who were victims of the 2007 civilian shootings in Baghdad by individuals who worked for the company then known as Blackwater (now Academi). See Abtan v. Blackwater Lodge & Training Ctr., 611 F.Supp.2d 1 (D.D.C.2009). That lawsuit was settled in 2010.

In October 2011, an individual known only as RetroLady64 created a webpage for Ms. Burke on Wikipedia. Wikipedia is a “collaboratively edited, multilingual, free-access, free content Internet encyclopedia” and any visitor to the website has the ability to add, edit, or remove content.² The Wikipedia entry for Ms. Burke discussed, among other things, her civil suit against Blackwater:

Burke represented plaintiffs ... in a lawsuit against Blackwater. The lawsuit stemmed from the firefight in Niso[u]r Square in Baghdad. The lawsuit alleged Blackwater violated the federal Alien Tort Statute in committing extrajudicial killing and war crimes, and that the company was liable for assault and battery, wrongful death, intentional and negligent infliction of emotional distress, and negligent hiring, training and supervision. The lawsuit was dismissed in 2010.

Three months later, in January 2012, appellant John Doe No. 1, whose Wikipedia user name is “Zujua,” added information in the section of Ms. Burke's page that addressed the Abtan litigation. This information had nothing to do with Ms. Burke or the Abtan civil suit; instead it related to the troubled federal criminal prosecution of the Blackwater contractors arising from the same incident in Nisour Square.³ As modified by Zujua, the section of Ms. Burke's page that addressed the Abtan litigation read (Zujua's additions are italicized):

Burke represented plaintiffs ... in a lawsuit against Blackwater. The lawsuit stemmed from the firefight in Niso[u]r Square in Baghdad. The lawsuit alleged Blackwater violated the federal Alien Tort Statute in committing extrajudicial killing and war crimes, and that the company was liable for assault and battery, wrongful death, intentional and negligent infliction of emotional distress, and negligent hiring, training and supervision. Judge Urbina threw out the suit in December 2009, saying that “the court declines to excuse the government's reckless violation of the defendants' constitutional rights as harmless error,” after they attempted to use as evidence the defendants' compelled statements taken under threat of the loss of their jobs. Judge Urbina went on to criticize prosecutors for withholding “substantial exculpatory evidence” from the grand jury, and presenting “distorted versions” of witness' testimony. The lawsuit was dismissed in 2010.

Ms. Burke saw and removed this information about one month after it was posted. Zujua is not alleged to have taken any further action. A second anonymous user (“CapBasics359”), however, later posted similar language about the 2009 dismissal of the federal government's criminal case to Ms. Burke's Wikipedia page. Ms. Burke again removed the offending statements herself; this time, she also contacted CapBasics359 through Wikipedia to inform him that the information he added did not apply to her case. CapBasics359 then restored the statements about the government prosecution, however, and he and Ms. Burke went back and forth several times, with CapBasics359 adding and Ms. Burke deleting this same information.

Suspecting that incorrect additions to her Wikipedia page were the product of a scheme by Blackwater to discredit her, Ms. Burke filed suit in D.C. Superior Court alleging defamation, tortious interference in prospective business advantage, and false light invasion of privacy. She named several anonymous defendants who she asserted had colluded to defame her: Zujua (John Doe No. 1), CapBasics359 (John Doe No. 2), and eight alleged Blackwater employees or agents (John Does 3–10). As Ms. Burke did not know the real names of the Wikipedia users, she was unable to serve them. She therefore issued a subpoena to obtain Wikipedia's user data so that she could obtain the anonymous posters' identifying information.

Zujua, represented by the Center for Individual Rights, moved to quash the subpoena pursuant to the D.C. Anti–SLAPP Act's “special motion to quash” provision, D.C.Code § 16–5503.⁴ In the alternative, he sought a protective order preventing the discovery of his identity. On January 30, 2013, the trial court denied Zujua's motion in a one-page order. The court ruled that Zujua was not entitled to the protection of the Anti–SLAPP statute because he had not established that he had spoken about “an issue of public interest” within the meaning of the statute. Without further explanation, the court stated that Zujua had both failed to make an affirmative showing that Ms. Burke was a general- or limited-purpose public figure and failed to disprove that his speech was commercially motivated. In addition, the trial court ruled, also without explanation in its order, that even if Zujua's speech was about an issue of public interest, he was not entitled to quash the subpoena because Ms. Burke had demonstrated a likelihood of success on the merits of her defamation claim. Finally, the court deniedZujua's request for a protective order noting that Zujua had provided no authority for such a request. This appeal followed.⁵

II. The D.C. Anti–SLAPP Act

In 2010, the Council of the District of Columbia enacted the D.C. Anti–SLAPP Act to protect the targets of SLAPPs and encourage “engag[ement] in political or public policy debates.” Comm. Report at 4. Following the lead of a number of other jurisdictions, the statute creates a “special motion to dismiss,” a procedural mechanism that allows a named defendant to quickly and equitably end a meritless suit. D.C.Code § 16–5502. The D.C. statute goes further than the other jurisdictions, however, in its additional protection for anonymous speech. Given that “SLAPP plaintiffs frequently include unspecified individuals as defendants,” Comm. Report at 4, and recognizing the importance of anonymous speech on matters of public interest, the D.C. Anti–SLAPP Act also allows “a person whose personal identifying information is sought” to safeguard his identity by filing a “special motion to quash” a subpoena. D.C.Code § 16–5503(a). An anonymous would-be defendant who is able to protect her identity in this manner can thus avoid being named in a suit and served with a complaint.

To establish the grounds for either of the two procedural protections the Anti–SLAPP statute affords—dismissal of the suit or quashing of a subpoena—the moving party must show that his speech is of the sort that the statute is designed to protect. Specifically, the moving party must “make[ ] a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest.” D.C.Code § 16–5502(b); see alsoD.C.Code § 16–5503(b). Upon such a showing, the motion will be granted unless the opposing party demonstrates a likelihood of success on the merits of his or her underlying claim. Id.

III. Appealability of a Special Motion to Quash

Before we may consider the merits of the trial court's order denying Zujua's special motion to quash, we must determine...