TREVOR N. McFADDEN, United States District Judge.
Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of herself and a fellow journalist in the White House press room making a gesture widely recognized as the "okay" hand symbol but also speculated at the time to be a "white power" symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, "just two people doing a white power hand gesture in the White House." Ms. Fairbanks sued Ms. Roller for defamation. The First Amendment requires that Ms. Fairbanks' claim be considered "against the background of a profound national commitment" to the freedom of speech and especially of political speech, which is "essential to the security of the Republic." See New York Times v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This "fundamental principle of our constitutional system" obligates Ms. Fairbanks, as a public figure, to support her defamation claim by alleging facts that support a finding of actual malice on the part of Ms. Roller. See id. at 269, 279-80, 84 S.Ct. 710. Because Ms. Fairbanks has failed to allege such facts, Ms. Roller's Motion to Dismiss under the Federal Rules of Civil Procedure will be granted. The District of Columbia's anti-SLAPP statute does not apply in federal court, so Ms. Roller's Motion to Dismiss and request for attorney's fees under the anti-SLAPP statute will be denied.
Ms. Fairbanks describes herself as a political activist and a grassroots journalist who uses social media to reach the public. Am. Compl. 2, ¶ 4. She describes Ms. Roller as a gatekeeper journalist with an esteemed professional reputation, though she also alleges that Ms. Roller works for a click-bait news site that intentionally publishes fake news. Id. at 2-3. According to Ms. Fairbanks, gatekeeper journalists like Ms. Roller consider themselves superior to grassroots journalists. Id. at 2. At the same time, they fear that grassroots journalists threaten their role as "[t]he primary gatekeepers of news." Id. Because of their fear, Ms. Fairbanks alleges, some gatekeeper journalists "wage a personal, political war on their ideological adversaries and grassroots competitors." Id. According to Ms. Fairbanks, this conflict intensified when grassroots journalists received White House press passes. Id.
When Ms. Fairbanks received a White House press pass, she and a fellow "new media" journalist posted a picture of themselves making the "okay" hand symbol in the White House press room. Id. At the time, there was ongoing public debate about whether the alt-right movement had turned the gesture into a hate symbol. Memo. ISO Mot. Dismiss 2-3 (citing news articles about the "okay" hand symbol).
Roller's tweets were read, retweeted, and referenced by a variety of "major news outlets," though not by any "serious publication in America." Am. Compl. ¶¶ 8-9. Ms. Fairbanks tweeted, "They've become so easy to troll that you don't even have to make an effort anymore,"
"[T]he Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits." Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017). Early resolution of defamation cases under Federal Rule of Civil Procedure 12(b)(6) "not only protects against the costs of meritless litigation, but provides assurance to those exercising their First Amendment rights that doing so will not needlessly become prohibitively expensive." Palin v. New York Times Co., 264 F.Supp.3d 527, 533 (S.D.N.Y. 2017).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires that a complaint raise "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Pleading facts that are "merely consistent with" a defendant's liability "stops short of the line between possibility and plausibility." Twombly, 550 U.S. at 545-46, 127 S.Ct. 1955. Thus, a court evaluating a motion to dismiss for failure to state a claim does not accept the truth of legal conclusions or "[t]hreadbare recitals of the elements of a cause of action,
Under District of Columbia law, a defamation claim requires: (1) a false and defamatory statement; (2) published without privilege to a third party; (3) made with the requisite fault; and (4) damages. See Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001). Ms. Roller's motions argue that Ms. Fairbanks has not pled facts to support findings of falsity and fault. Ms. Fairbanks concedes that she is a public figure. See Pl.'s Opp. to Mot. Dismiss 4 (reciting standard for public figures), 10-12 (applying standard for public figures). Under First Amendment law, this means that she bears a heightened burden on both these elements. Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1292 (D.C. Cir. 1988).
The First Amendment requires public figures suing in defamation to "demonstrate by at least a fair preponderance of the evidence that the [allegedly] defamatory statement is false," with close cases decided against them. Liberty Lobby, 838 F.2d at 1292. Although the First Amendment permits liability for false factual statements under some circumstances, "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Pure statements of opinion can never support liability because "[u]nder the First Amendment there is no such thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
Courts in this jurisdiction consider four factors to determine whether a defendant has stated a fact or an opinion. Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984). First, courts evaluate whether a defendant's statement "has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous" and thus less likely to carry specific factual connotations. Id. Second, courts evaluate whether the statement can be "objectively characterized as true or false" or instead "lacks a plausible method of verification." Id. Third, courts evaluate any unchallenged language that provides context for the challenged statement — for example, the uncontested portions of an article or column — to determine whether the context would influence an average reader's perception that the challenged statement has factual content. Id. Fourth, courts evaluate the broader context, including social conventions surrounding different types of writing, to determine whether this context signals that a statement concerns fact or opinion. Id.
Ms. Roller argues that all four Ollman factors show she stated an opinion, not a purported fact, when she tweeted that Ms. Fairbanks made "a white power hand gesture in the White House." Memo. ISO Mot. Dismiss 8-18. First, she argues that her interpretation of the "okay" hand symbol
But the Ollman factors do not point in Ms. Roller's favor as strongly as she suggests. Ms. Roller's argument about the first Ollman factor depends on the mistaken assumption that it is impossible to make a clear statement about an ambiguous gesture.
One can imagine situations in which a defendant's characterization of a plaintiff's gesture would be arguably defamatory. For example, a defendant might claim that the plaintiff "flipped me off" when the evidence showed the plaintiff actually gave a thumbs-up, or a defendant might claim that the plaintiff performed the Nazi salute when the plaintiff merely waved hello. These demonstrably false factual statements would differ from related, but protected, statements of opinion such as, "She is a vulgar person," or "He is a Nazi-lover." Cf. Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976) (distinguishing the
"While courts [of different jurisdictions] are divided in their methods of distinguishing between assertions of fact and expressions of opinion, they are universally agreed that the task is a difficult one." Ollman, 750 F.2d at 978. "Where the question of truth or falsity is a close one, a court should err on the side of nonactionability." Liberty Lobby, 838 F.2d at 1292. But since actual malice presents a clearer question and requires dismissal of the case, I need not decide whether Ms. Roller's tweet constitutes a protected statement of opinion.
The First Amendment requires public figures suing in defamation to establish by clear and convincing evidence that the defendant's fault rises to the level of "actual malice." Liberty Lobby, 838 F.2d at 1292. That is, public figures must establish that the defendant made the allegedly defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Sullivan, 376 U.S. at 280, 84 S.Ct. 710. Because free debate inevitably leads to some mistaken statements and punishment of these statements would chill the freedom of speech, reckless disregard requires a "high degree of awareness of ... probable falsity." Garrison v. La., 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). "The actual malice inquiry focuses on the defendant's state of mind at the time of publication." Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.3d 106, 118 (D.C. Cir. 2017).
Ms. Fairbanks seeks to prove actual malice in four ways. First, she alleges that Ms. Roller knew the "okay" symbol is not a white power gesture. Pl.'s Opp. to Mot. Dismiss 11. Second, she alleges that Ms. Roller failed to perform due diligence consistent with professional standards of journalism. Id. Third, she alleges that Ms. Roller, as a gatekeeper journalist, has a motive to smear Ms. Fairbanks' reputation as a competing grassroots journalist and "continues a campaign of smears." Id. at 11-12; see also Am. Compl. 2. Fourth, she argues that Ms. Roller's "failure to issue a single correction or retraction" suggests her recklessness about truth. Pl.'s Opp. to Mot. Dismiss 11; but see Am. Compl. ¶ 17 (implying that Ms. Roller deleted her tweet); Compl. 2 (alleging that Ms. Roller deleted her tweet before learning of this lawsuit).
None of these arguments comes close to satisfying the First Amendment's demanding standard for public figures bringing defamation actions. Ms. Fairbanks' first argument fails because she has not pled facts sufficient to support her conclusory allegation that Ms. Roller knew the falsity of her statement.
Dismissing the Amended Complaint for failure to state a claim does not moot Ms. Roller's anti-SLAPP motion since the motion seeks attorneys' fees in addition to dismissal. The District of Columbia's anti-SLAPP statute seeks to protect people from "Strategic Lawsuits Against Public Participation" or SLAPPs — that is, from illegitimate lawsuits designed to discourage free speech on issues of public interest. See Abbas v. Foreign Policy Grp., 783 F.3d 1328, 1332 (D.C. Cir. 2015). Among other things, the statute establishes a mechanism for early dismissal of SLAPPs and enables defendants who win dismissal under the statute to recover their attorneys' fees. D.C. Code §§ 16-5502(a)-(b), 16-5504(a). But Ms. Fairbanks argues that the anti-SLAPP statute does not properly apply in federal courts exercising diversity jurisdiction over local law claims.
A federal court sitting in diversity generally applies local substantive law and federal procedural rules. Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 S.Ct. 1188 (1938)). If local substantive law and the Federal Rules of Civil Procedure answer the same question in different ways, the Federal Rules of Civil Procedure control unless they exceed the authorization of the Rules Enabling Act. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398-99, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). The United States Court of Appeals for the District of Columbia Circuit has already determined under this framework that "[a] federal
Ms. Roller argues that the District of Columbia Court of Appeals' subsequent decision in Competitive Enterprise Institute v. Mann, 150 A.3d 1213 (D.C. 2016), supersedes Abbas. She notes that Mann clarified two facts about the District's anti-SLAPP statute that differ from the understanding in Abbas. Memo. ISO Anti-SLAPP Mot. 5. First, Mann held that the anti-SLAPP statute creates substantive rights. Mann, 150 A.3d at 1226. Second, it held that the statute's "likely to succeed" standard of proof for special motions to dismiss mirrors the summary judgment standard of proof under Federal Rule of Civil Procedure 56. Id. at 1238 n.32.
Mann's articulation of District law — and not Abbas's interpretation of it — controls. See Payne v. D.C. Gov., 722 F.3d 345, 353 (D.C. Cir. 2013) (noting that District of Columbia Court of Appeals decisions provide binding interpretations of District law). But I am also bound to follow Abbas as the law of the Circuit unless Mann "clearly and unmistakably" resolves the question at issue. See Easaw v. Newport, 253 F.Supp.3d 22, 34 (D.D.C. 2017). Two of my colleagues have already determined that Abbas remains binding after Mann. See Libre by Nexus v. Buzzfeed, Inc., 311 F.Supp.3d 149, 160, 2018 WL 2248420 at *9 (D.D.C. May 16, 2018); Deripaska v. Associated Press, 2017 WL 8896059 at *3 (D.D.C. Oct. 17, 2017). Indeed, I am not aware that any judge in this District has awarded attorneys' fees under the anti-SLAPP statute since Mann.
Because Abbas's application of the Shady Grove framework does not depend on either of the points that Mann later clarified, I join my colleagues in concluding that Abbas controls. The reasoning in Abbas begins with the observation that the anti-SLAPP statute and Federal Rules of Civil Procedure 12 and 56 "answer the same question about the circumstances under which a court must dismiss a case before trial." Abbas, 783 F.3d at 1333-34. Mann does nothing to disturb this understanding of District law.
Abbas goes on to observe that the anti-SLAPP statute and the Federal Rules of Civil Procedure answer the same question in different ways: "[U]nlike the D.C. Anti-SLAPP Act, the Federal Rules do not require a plaintiff to show a likelihood of success on the merits in order to avoid pre-trial dismissal." Id. at 1334. And Mann confirms this conclusion. As Ms. Roller notes, Mann clarifies that the anti-SLAPP statute's "likelihood of success on the merits" standard mirrors the Rule 56 summary judgment standard, requiring that "the evidence suffices to permit a jury to find for the plaintiff."
The final question that Abbas addressed under the Shady Grove framework is whether Federal Rules of Civil Procedure 12 and 56 exceed the authorization of the Rules Enabling Act. See Shady Grove, 559 U.S. at 398, 130 S.Ct. 1431. Abbas held that Rules 12 and 56 do not. Abbas, 783 F.3d at 1336-37. As a local court, Mann had no occasion to explore the validity of the Federal Rules. Thus, Mann does not undermine Abbas in this respect either.
According to Ms. Roller, "Mann could not have spoken more `clearly and unmistakably' to ... whether the standards imposed by [the anti-SLAPP statute] are the same or different than those imposed by the Federal Rules of Civil Procedure." Memo. ISO Anti-SLAPP Mot. 5. I believe it "clearly and unmistakably" confirms Abbas's determination that they differ. In any event, it does not show that the anti-SLAPP statute should apply in federal court. So I am bound by the law of the Circuit and must dismiss Ms. Roller's anti-SLAPP motion.
Some countries criminalize gestures that others may take as racist or hateful. See, e.g., Strafgesetzbuch (StGB) (Penal Code), § 130, http://www.gesetze-im-internet.de/ englisch_stgb/englisch_stgb.html#p0080 (German law criminalizing incitement to hatred against certain groups, which has been used to prosecute individuals who perform the Nazi salute); Code Pénal [C.Pén] art. 144 (Belgian law criminalizing the use of actions, words, gestures, or threats to insult religious objects). But in America, the First Amendment's commitment to a public debate that is "uninhibited, robust, and wide-open," Sullivan, 376 U.S. at 270, 84 S.Ct. 710, offers broad protections to those who make these gestures and those who accuse public figures of making them.
For the reasons explained above, the Defendant's Motion to Dismiss under the Federal Rules of Civil Procedure will be granted and the Defendant's Motion to Dismiss under the District of Columbia anti-SLAPP statute will be denied. A separate order will issue.