The Virginia Defamation Law Blog
Former Georgia State Director for Rural Development, Shirley Sherrod, filed a defamation action in the United States District Court for the District of Columbia against bloggers Andrew Breitbart and Larry O’Connor based on a blog post allegedly portraying her as racist. The court denied defendants’ special motion to dismiss under D.C.’s anti-SLAPP Act. Defendants appealed, and the case is now pending before the United States Court of Appeals for the District of Columbia Circuit
The district court cited three reasons for its dismissal. First, it found that entertaining defendants’ motion would require retroactive application of the anti-SLAPP statute as Sherrod filed her complaint on February 11, 2011 and the D.C. anti-SLAPP Act did not become effective until March 31, 2011. Typically, only statutes that are purely procedural in nature can be applied retroactively, and the court held that the Act is substantive (or has substantive consequences). Defendants argue that whether the statute only applies to actions filed after its effective date is an issue of first impression, and summary disposition of a case of first impression involving a newly enacted statue that protects important First Amendment rights is not appropriate.
The district court found that even if the statute were purely procedural, the Erie doctrine, which requires federal courts sitting in diversity to apply state substantive law and federal procedural law, bars its application in federal court. Finally, the district court held that even if defendants could show that the statute is both retroactive and 
applicable in federal court, the plain language of the statute bars the motion to dismiss–the statute provides that a party may file a special motion to dismiss within 45 days after service of the claim, and here, the motion was filed more than two weeks after the 45 days had passed.
Another issue on appeal will be whether the court of appeals has jurisdiction to consider the appeal as a collateral order. In general, courts only have jurisdiction over final judgments, but the collateral order doctrine allows parties to appeal a narrow class of decisions that resolve important questions. Citing case law, defendants contend that the First, Fifth and Ninth Circuits have considered this issue and, of five substantive opinions, four hold that the denial of an anti-SLAPP motion to dismiss is immediately appealable. Further, defendants argue that the Supreme Court and the District of Columbia Circuit have applied the collateral order doctrine where a defendant seeks an appeal to vindicate rights of high value such as ones embodied in the Constitution. Defendants contend that because the case involves constitutionally protected free speech regarding public figures and issues of public importance, the court should exercise jurisdiction over the appeal.