Part 2 of 4
C. Unreviewability
Third, a trial court’s denial of a special motion to dismiss is “effectively unreviewable on appeal from a final judgment.” McNair Builders, 3 A.3d at 1135 (quoting Finkelstein, Thompson & Loughram, 774 A.2d at 339-40). Denial of immunity from trial is the quintessential unreviewable order because the core of immunity from suit “is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Id. at 1137 (quoting Mitchell, 472 U.S. at 525). The D.C. Anti-SLAPP Act provides not only immunity from having to stand trial but also protection from “expensive and time consuming discovery that is often used in a SLAPP as a means to prevent or punish” by “toll[ing] discovery while the special motion to dismiss is pending.” Report on Bill 18-893, at 4. Consequently, the denial of a special motion to dismiss filed under the Act — a denial of the immunity from suit and pretrial burdens afforded by the statute — is the type of unreviewable order that falls squarely within the collateral order doctrine. Accord Henry, 566 F.3d at 178 (holding that denial of Anti-SLAPP motion to dismiss satisfies the third requirement of the collateral order doctrine because its purpose is to “provide[] a right not to stand trial”); see also Behrens, 516 U.S. at 308 (noting that the scope of protection afforded by qualified immunity, which includes the right to not stand trial and to avoid the burdens of pretrial matters, such as discovery, made denial of immunity claim immediately appealable).
D. Substantial Public Interest
Finally, and of particular importance in conducting a Cohen analysis, we conclude that because the denial of a special motion to dismiss implicates a “substantial public interest,” it would be effectively unreviewable on appeal from a final judgment. McNair Builders, 3 A.3d at 1136. The purpose of the special motion to dismiss is to protect a “particular value of a high order” — the right to free speech guaranteed by the First Amendment — by shielding defendants from meritless litigation that might chill advocacy on issues of public interest. Will, 546 U.S. at 352 (citing cases involving separation of powers, states’ dignitary interests under the Eleventh Amendment, and double jeopardy bar of the Fifth Amendment); cf. McNair Builders, 3 A.3d at 1141 (holding that contractor’s asserted immunity under judicial proceedings privilege did not implicate a substantial public interest warranting interlocutory review). The legislative history of the Anti-SLAPP Act confirms that the legislature thought the denial of the Act’s protection merited immediate appellate review. The original Anti-SLAPP bill presented to the Council of the District of Columbia included a provision for the interlocutory appeal of the denial of a special motion to dismiss or quash. This provision was excluded from the final version of the bill following this court’s decision in Stuart v. Walker, 6 A.3d 1215 (D.C. 2010), vacated, 30 A.3d 783 (D.C. 2011) (Mem.)., which held that a similar provision affecting the jurisdiction of the court is beyond the scope of the Council’s authority. Report on Bill 18-893, at 7. The Council’s evident intent and preference to include an interlocutory review provision — regardless of whether it had the authority to do so — is a significant indicator of its belief that “some particular value of a high order,” Will, 546 U.S. at 352, is at issue that should be addressed by the court on appeal without waiting for completion of the litigation. See Henry, 566 F.3d at 181 (concluding that where statute “embodies a legislative determination that parties should be immune from certain abusive tort claims that have the purpose or effect of imperiling First Amendment rights, ‘there is little room for the judiciary to gainsay its “importance”’” (quoting Digital Equip. v. Desktop Direct, 511 U.S. 863, 879 (1994))); cf. Englert v. MacDonnell, 551 F.3d 1099, 1105-06 (9th Cir. 2009) (holding that denial of special motion to strike under Oregon’s anti-SLAPP statute was not immediately appealable where Oregon statute did not provide for immediate appellate review of such order).
We conclude that denial of Anti-SLAPP special motions to dismiss meet the requirements of conclusivity, separability, and effective unreviewability established in Cohen, as further refined in Will, and is immediately appealable to this court. We come to this conclusion in light of the District of Columbia Anti-SLAPP Act’s purpose to create a substantive right not to stand trial and to avoid the burdens and costs of pre-trial procedures, a right that would be lost if a special motion to dismiss is denied and the case proceeds to discovery and trial; our interpretation of the Act as requiring a judicial determination applying established principles of law in deciding a special motion to dismiss; and, most especially, the public interest in safeguarding important First Amendment rights in an expeditious manner as shown by the Council’s evident desire to make denials of such motions, which must be filed and decided in the early stage of litigation, immediately appealable. See Henry, 566 F.3d at 176-78 (noting that a ruling on a special motion to dismiss under the Louisiana Anti-SLAPP statute meets every prong of the collateral order doctrine because the statute provides a right not to stand trial and bear the costs of defending a meritless defamation claim that can chill important First Amendment rights by gauging plaintiff’s probability of success); Batzel, 333 F.3d at 1025-26 (holding that denial of special motion to dismiss under California Anti-SLAPP Act met Cohen standards because it created a substantive immunity from suit and provided for immediate right of appeal).
As we have determined that we have jurisdiction, we have two further questions to address: (1) what is meant by the Act’s language requiring the plaintiff to “demonstrate[] that the claim is likely to succeed on the merits,” and (2) whether Dr. Mann has met this standard in the present case.
IV. The Anti-SLAPP Act’s “Likely to Succeed on the Merits” Standard for Special Motions to Dismiss
The Anti-SLAPP Act’s special motion to dismiss creates a burden-shifting procedure that is triggered by the party seeking to invoke the special protections afforded by the Act. See D.C. Code § 16-5502.20 The moving party (usually the defendant)21 files a special motion to dismiss within forty-five days after service of the complaint. Id. § 16-5502 (a). Filing of the motion stays discovery, unless the court grants a limited exception for discovery targeted to defeating the motion. Id. § 16-5502 (c). If the moving party makes a “prima facie showing” that the claim “arises from an act in furtherance of the right of advocacy on issues of public interest,” the burden shifts to the party opposing the motion to “demonstrate[] that the claim is likely to succeed on the merits.” Id. § 16-5502 (b) & (d). The court is required to hold an “expedited hearing” on the motion and to issue a ruling “as soon as practicable after the hearing.” Id. § 16-5502 (d). If the plaintiff’s opposition fails to meet the statutory standard, the Act requires the trial court to dismiss the complaint, with prejudice. Id. § 16-5502 (b) & (d). If the opposition is successful, the motion to dismiss is denied, id., and the litigation proceeds in the normal course.
For the reasons that follow, we conclude that in considering a special motion to dismiss, the court evaluates the likely success of the claim by asking whether a jury properly instructed on the applicable legal and constitutional standards could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion. This standard achieves the Anti-SLAPP Act’s goal of weeding out meritless litigation by ensuring early judicial review of the legal sufficiency of the evidence, consistent with First Amendment principles, while preserving the claimant’s constitutional right to a jury trial.
We review questions of statutory interpretation de novo. Burke I, 91 A.3d at 1040.22 Our analysis begins with the language of the statute, see District of Columbia v. Place, 892 A.2d 1108, 1111 (D.C. 2006), which requires that to prevail in opposing a special motion to dismiss, the opponent must “demonstrate[] that the claim is likely to succeed on the merits.” D.C. Code § 16-5502 (b). As neither the phrase nor any of its components is defined in the statute, we look to “the language of the statute by itself to see if the language is plain and admits of no more than one meaning.” Rodriguez v. District of Columbia, 124 A.3d 134, 146 (D.C. 2015) (quoting Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011)). Although we can be confident that “on the merits” refers to success on the substance of the claim,23 the meaning of the requirement that the opponent “demonstrate[] that the claim is likely to succeed” is more elusive. Use of the word “demonstrate”24 indicates that once the burden has shifted to the claimant, the statute requires more than mere reliance on allegations in the complaint, and mandates the production or proffer of evidence that supports the claim. This interpretation is supported by another provision in the Act, § 16-5502 (c), that stays discovery upon the filing of a special motion to dismiss “until the motion has been disposed of,” unless it “appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome.” If evidence were not required to successfully oppose a special motion to dismiss under § 16-5502 (b), there would be no need for a provision allowing targeted discovery for that purpose.25 Moreover, unless something more than argument based on the allegations in the complaint is required, the special motion to dismiss created by the Act would be redundant in light of the general availability, in all civil proceedings regardless of the nature of the claim, of motions to dismiss under Rule 12 (b)(6).
But what does it mean that the evidence must demonstrate that the claim is “likely to succeed”? In common parlance, the term “likely” connotes a predictive quality, and its dictionary definition is “probable.”26 The phrase conveys an assessment of the claimant’s chance of success, but does not inherently provide the exact measure by which such an assessment is to be made. It could be argued that “likely to succeed” is different from and a lesser standard than “more likely than not to succeed,” the phrase routinely used to mean a preponderance of the evidence, and that if the legislature had in mind a preponderance of the evidence standard, it would have used that well-known term of art. See Haley v. United States, 799 A.2d 1201, 1209 n.6 (D.C. 2002) (“The preponderance of the evidence standard requires proof that something more likely than not exists or occurred.”). On the other hand, it seems counterintuitive to say that a claim is “likely to succeed” if it has a less than 50% chance of prevailing. In short, the statutory language’s dictionary meaning, even if good enough for common parlance, leaves us in doubt as to its proper interpretation in the Anti-SLAPP Act.
Appellants argue that we should look to a similar phrase, “a likelihood of success on the merits,” that is used to evaluate requests for temporary stays and preliminary injunctions. In that context, “a likelihood of success” has been defined to mean a “substantial likelihood” though not a “mathematical probability,” Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 162 (D.C. 2013) (quoting In re Estate of Reilly, 933 A.3d 830, 837 (D.C. 2007)), and does not express a fixed measurement,27 as it is part of a multi-factor test where a stronger showing on some factors can compensate for a weaker showing on others.28 The phrase “a likelihood of success” is similar (though not identical) on its face to the phrase “likely to succeed,” and in both the preliminary injunction context and under the Anti-SLAPP Act, the judicial role involves prediction of ultimate success on the merits. The two terms should not automatically be equated, however, because of the different purpose and impact of the court’s ruling in the two contexts. In granting a request for preliminary injunction, the court grants temporary relief to a movant who makes some showing of likelihood of success that is weighed, along with other factors such as irreparable harm, to preserve the status quo pending the final outcome of litigation. See Nken, 556 U.S. at 434 (noting that preliminary injunctions and stays similarly concern whether court order “may allow or disallow anticipated action before the legality of that action has been conclusively determined”). Under the Anti-SLAPP Act, on the other hand, the result of the court’s ruling in favor of the moving party means complete and final victory for that party by bringing the litigation to an end, avoiding a resolution by trial. Because it is a variable standard that is used for a different purpose, “a likelihood of success,” the term used in deciding requests for preliminary injunctions and stays, does not determine the proper interpretation of the “likely to succeed” standard for deciding special motions to dismiss under the Anti-SLAPP Act.
Lacking a statutory definition, clear dictionary definition, or application as a term of art that reasonably can be borrowed from another legal context, the Anti-SLAPP Act’s “likely to succeed on the merits” leaves us with “textual uncertainty.” Cass v. District of Columbia, 829 A.2d 480, 486 (D.C. 2003). Our task, therefore, is to interpret the ambiguous term in a manner “that makes sense of the statute as a whole” by reference to legislative history and other aids to construction, such as applicable canons of statutory interpretation. District of Columbia v. Reid, 104 A.3d 859, 868 (D.C. 2014) (quoting Cass, 829 A.2d at 482).
We begin with what the legislature said it was trying to accomplish: to deter SLAPPs by “extend[ing] substantive rights to defendants in a SLAPP, providing them with the ability to file a special motion to dismiss that must be heard expeditiously by the court.” Report on Bill 18-893, at 4. The special motion to dismiss is a mechanism by which a SLAPP defendant can “expeditiously and economically dispense of litigation” to alleviate the burdens and cost of defending against a suit that is filed, not to succeed, but to “prevent or punish” the defendant’s speech or advocacy. Id. To this end, a special motion to dismiss must be filed and decided in the early stage of litigation. D.C. Code § 16-5502 (a). If the trial court determines that the plaintiff has not met the statutory burden, the special motion to dismiss must be granted “with prejudice.” Id. § 16-5502 (b) & (d). In short, the special motion to dismiss provision authorizes final disposition of a claim in a truncated proceeding, usually without the benefit of discovery, id. § 16-5502 (c), to avoid the toll that meritless litigation imposes on a defendant who has made a prima facie showing that the claim arises from advocacy on issues of public interest.
The dispositive nature of a court’s grant of a special motion to dismiss after the claimant has been required to proffer evidence, but without a full opportunity to engage in discovery and before trial, is critical to our interpretation of the “likely to succeed” standard. An interpretation that puts the court in the position of making credibility determinations and weighing the evidence to determine whether a case should proceed to trial raises serious constitutional concerns because it encroaches on the role of the jury.29 In view of this concern, we apply the canon of constitutional avoidance, “an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). This canon leads us to interpret the phrase “likely to succeed on the merits,” undefined in the D.C. Anti-SLAPP statute, in a manner that does not supplant the role of the fact-finder, lest the statute be rendered unconstitutional.30 We, therefore, conclude that to remove doubt that the Anti-SLAPP statute respects the right to a jury trial, the standard to be employed by the court in evaluating whether a claim is likely to succeed may result in dismissal only if the court can conclude that the claimant could not prevail as a matter of law, that is, after allowing for the weighing of evidence and permissible inferences by the jury. Cf. Mixon v. Wash. Metro. Area Transit Auth., 959 A.2d 55, 58 (D.C. 2008) (explaining that summary judgment does not violate right to jury trial because it results in dismissal only if no reasonable jury could find for the claimant based on the undisputed facts).
The standards against which the court must assess the legal sufficiency of the evidence are the substantive evidentiary standards that apply to the underlying claim and related defenses and privileges. As we discuss in the next section, in addition to the elements required to make out a claim for defamation under the law of the District of Columbia, there is a well-developed body of case law, originating with the Supreme Court, that establishes different levels of fault and proof that are designed to protect First Amendment rights. One example is the requirement to prove actual malice by clear and convincing evidence when the claimant is a public official or, as in this case, a limited public figure with respect to the issue that is the subject of speech claimed to be defamatory. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986) (holding that in evaluating motion for summary judgment under Rule 56, as in evaluating motion for directed verdict under Rule 50 (a), in a case requiring proof of actual malice by clear and convincing evidence, “the judge must view the evidence presented through the prism of the substantive evidentiary burden”). The precise question the court must ask, therefore, is whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements, could reasonably find for the claimant on the evidence presented.31
We acknowledge that our functional interpretation of the statutory language is not evident from the face of the statute alone. As we have explained, the interpretation we adopt is made possible by the ambiguity of the statutory language and rendered necessary to avoid doubt about the constitutionality of § 16-5502 (b). This interpretation comports with the legislative aim of building special protections for a defendant who makes a prima facie case that the claim arises from advocacy on issues of public interest. A comparison of the procedures usually available in civil litigation makes clear that the complement of provisions of the Anti-SLAPP Act impose requirements and burdens on the claimant that significantly advantage the defendant. As we have noted, the filing of a special motion to dismiss stays the claimant’s right to seek discovery “until the motion has been disposed of,” with a limited exception that favors the defendant. D.C. Code § 16-5502 (c). The Act also places the initial burden on the claimant to present legally sufficient evidence substantiating the merits without placing a corresponding evidentiary demand on the defendant who invokes the Act’s protection. Id. § 16-5502 (b). This is a reversal of the allocation of burdens for dismissal of a complaint under Superior Court Rule of Civil Procedure 12 (b)(6), which requires the moving party to show that the complaint’s allegations, even if proven, would not state a claim as a matter of law; and for summary judgment under Superior Court Rule of Civil Procedure 56, which requires the moving party to wait until discovery has been completed and then shoulder the initial burden of showing that there are no material facts genuinely in dispute and that the movant is entitled to judgment as a matter of law on the undisputed facts.
In addition to these substantive burdens, there are financial levies to deter a SLAPP plaintiff. The Act authorizes the trial court to award costs and fees — including attorney’s fees — to a moving party who prevails “in whole or in part” on a special motion to dismiss. D.C. Code § 16-5504 (a). We have held that under the parallel provision for special motions to quash under D.C. Code § 16-5503, the successful movant is presumptively entitled to an award of fees unless special circumstances make a fee award unjust. See Burke II, 133 A.3d at 571. The Act is much less generous to a plaintiff who successfully defends against a special motion to dismiss, allowing the award of costs and fees “only if the court finds that [the] motion . . . is frivolous or is solely intended to cause unnecessary delay.” D.C. Code § 16-5504 (b). In sum, the special motion to dismiss not only provides substantial advantages to the defendant over and above those usually available in civil litigation, but also imposes procedural and financial burdens on the plaintiff.
Our interpretation of the requirements and standard applicable to special motions to dismiss ensures that the Anti-SLAPP Act provision is not redundant relative to the rules of civil procedure. A defendant may still file a motion to dismiss a complaint at the onset of litigation under Rule 12, based solely on deficiencies in the pleadings. See Super. Ct. Civ. R. 12 (a) (requiring that motion for failure to state a claim must be filed within 20 days of service of complaint). The Anti-SLAPP Act gives the defendant the option to up the ante early in the litigation, by filing a special motion to dismiss that will require the plaintiff to put his evidentiary cards on the table and makes the plaintiff liable for the defendant’s costs and fees if the motion succeeds. D.C. Code § 16-5502 (a) (requiring that special motion to dismiss be filed within forty-five days of service of the complaint); id. § 16-5504 (a) (providing for costs and fees). Even if the Anti-SLAPP special motion to dismiss is unsuccessful, the defendant preserves the ability to move for summary judgment under Rule 56 later in the litigation, after discovery has been completed, or for a directed verdict under Rule 50 after the presentation of evidence at trial.32
Finally, our interpretation of the standard applicable to special motions to dismiss as providing an early judicial evaluation of the legal sufficiency of the plaintiff’s evidence strikes the right balance between the interests of the parties. Consistent with the Anti-SLAPP Act’s purpose to deter meritless claims filed to harass the defendant for exercising First Amendment rights, true SLAPPs can be screened out quickly by requiring the plaintiff to present her evidence for judicial evaluation of its legal sufficiency early in the litigation. But by deferring to the jury’s reasonable decision-making, the constitutional right of a plaintiff who has presented evidence that could persuade a jury to find in her favor is respected. It bears remembering that the fact that a defendant can make a threshold showing that the claim arises from activities “in furtherance of the right of advocacy on issues of public interest,” D.C. Code § 16-5502 (a), does not mean that the defendant is immunized from liability for common law claims. See Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 943 & n.19 (Mass. 1998) (construing Anti-SLAPP statute to avoid unconstitutionality and noting that “[ b]y protecting one party’s exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party’s exercise of its right to petition, even when it is not engaged in sham petitioning”). Rather, heightened legal and proof requirements apply when First Amendment rights of the defendant are implicated, but it is possible to meet these requirements by strong evidence in support of the claim. The immunity created by the Anti-SLAPP Act shields only those defendants who face unsupported claims that do not meet established legal standards. Thus, the special motion to dismiss in the Anti-SLAPP Act must be interpreted as a tool calibrated to take due account of the constitutional interests of the defendant who can make a prima facie claim to First Amendment protection and of the constitutional interests of the plaintiff who proffers sufficient evidence that the First Amendment protections can be satisfied at trial; it is not a sledgehammer meant to get rid of any claim against a defendant able to make a prima facie case that the claim arises from activity covered by the Act. See, e.g., Sandholm v. Kuecker, 962 N.E.2d 418, 429-30 (Ill. 2012) (noting that Illinois statute is aimed solely at “meritless, retaliatory SLAPPs” and “was not intended to protect those who commit tortious acts and then seek refuge in the immunity conferred by the statute”).
To sum up, it is not the court’s role, at the preliminary stage of ruling on a special motion to dismiss, to decide the merits of the case but to test the legal sufficiency of the evidence to support the claims. We now turn to a discussion of the operative constitutional and legal substantive and proof requirements that apply to the underlying claims and to an analysis of the legal sufficiency of Dr. Mann’s proffered evidence applying those requirements.
V. Judicial Review for Legal Sufficiency
A court’s review for legal sufficiency is a particularly weighty endeavor when First Amendment rights are implicated. The court must “examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (quoting Pennekamp v. Fla., 328 U.S. 331, 335 (1946)). The court must consider whether a properly instructed jury could find for the plaintiff “both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). This is a question of law, measured against constitutional standards, that does not involve the court in making credibility determinations or weighing the evidence. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685, 690 (1989) (considering findings of fact made by jury along with undisputed evidence in concluding evidence was legally sufficient to prove actual malice); see id. at 697-700 (Scalia, J., concurring) (referring to appellate court’s “independent assessment of whether malice was clearly and convincingly proved on the assumption that the jury made all the supportive findings it reasonably could have made”). With these principles in mind, we turn to a de novo review of the record to determine whether the evidence produced by Dr. Mann could support, with the clarity required by First Amendment principles, a jury verdict in his favor.
A. Defamation
To succeed on a claim for defamation, a plaintiff must prove “(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement [met the requisite standard];[33] and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.” Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (quoting Crowley v. N. Am. Telecomms. Ass’n, 691 A.2d 1169, 1173 n.2 (D.C. 1997)). Appellants contend that the trial court erred in denying their special motions to dismiss because Dr. Mann did not sufficiently substantiate his defamation claim on the first three elements. As to Mr. Lowry’s editorial, we agree; but as to some of the other statements on which Dr. Mann bases his complaint, we disagree. We conclude that Dr. Mann hurdled the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits because the evidence he has presented is legally sufficient to support findings by the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were defamatory, were published by appellants to a third party without privilege, and were made with actual malice.
_______________
Notes:
20 D.C. Code § 16-5502 provides in its entirety:
(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
(c)(1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of.
(2) when it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.
(d) The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.
21 See supra note 13.
22 Burke I held that the special motion to dismiss filed in that case should have been granted because the plaintiff’s claim was unlikely to succeed. The court did not need to dwell on the precise interpretation of the “likely to succeed” standard in light of its conclusion that the record contained no evidence that the defendant acted with the requisite malice. 91 A.3d at 1045.
23 “Merits” is defined as “[t]he elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure.” BLACK’S LAW DICTIONARY (10th ed. 2014).
24 The relevant dictionary definitions of “demonstrate” are: “to show clearly and deliberately; manifest,” and “to show to be true by reasoning or adducing evidence.” THE AMERICAN HERITAGE DICTIONARY (5th ed. 2015).
25 See Tippett v. Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc) (referring to interpretation of statutory language as a “holistic endeavor” (quoting Wash. Gas Light Co. v. Pub. Serv. Comm’n, 982 A.2d 691, 716 (D.C. 2009))).
26 “Likely” is defined as “[a]pparently true or real; probable. . . . Showing a strong tendency; reasonably expected (likely to snow).” BLACK’S LAW DICTIONARY, supra note 23. Rather unhelpfully, “probable,” in turn, is defined in Black’s as “[l]ikely to exist, be true, happen.” Id. See THE AMERICAN HERITAGE DICTIONARY, supra note 24 (defining “likely” as “1. Possessing or displaying the qualities or characteristics that make something probable . . . 2. Within the realm of credibility; plausible . . . 3. Apparently appropriate or suitable . . . 4. Apt to achieve success or yield a desired outcome”).
27 It has been suggested that, in the federal courts, “a likelihood of success” in the preliminary injunction context is to be contrasted with a chance of success that is only a “mere possibility” or “better than negligible,” but without requiring a showing of success “more likely than not.” Citigroup Glob. Mkts. v. VCG Special Opportunities Master Fund, 598 F.3d 30, 37 & n.7 (2d Cir. 2010) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009))).
28 See Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969) (“The likelihood of success on the merits that a movant for injunctive relief must demonstrate varies with the quality and quantum of harm that it will suffer from the denial of an injunction. ‘Where it appears that a lack of a showing of irreparable [harm] exists . . . the party seeking a preliminary injunction has a burden of convincing with a reasonable certainty that it must succeed . . . .’” (quoting Dino de Laurentiis Cinematografica v. D-150, Inc., 366 F.2d 373, 375 (2d Cir. 1966))).
29 See Davis v. Cox, 351 P.3d 862, 873-74 (Wash. 2015) (en banc) (declaring that Washington state’s Anti-SLAPP special motion to dismiss, WASH. REV. CODE § 4.24.525 (2010), violates the state’s constitutional guarantee to a jury trial because it required trial court to weigh the evidence and make factual determination whether there was “clear and convincing evidence [of] a probability of prevailing on the claim”); Opinion of the Justices (SLAPP Suit Procedure), 641 A.2d 1012, 1015 (N.H. 1994) (declaring that proposed Anti-SLAPP legislation would violate right to trial by jury guaranteed by state constitution because it would require court to “weigh the pleadings and affidavits on both sides and adjudicate a factual dispute” in determining whether claimant has shown “a probability of prevailing on the merits”); Unity Health Care, Inc. v. Cty. of Hennepin, 308 F.R.D. 537, 549 (D. Minn. 2015) (concluding that Minnesota Anti-SLAPP provision requiring that party opposing dismissal must persuade judge by clear and convincing evidence that defendant is not immune from liability violates Seventh Amendment right to jury trial because it requires judge to weigh evidence and make credibility determination), interlocutory appeal docketed, No. 15-2489 (8th Cir. July 10, 2015).
30 See Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 44 Cal. Rptr. 2d 46, 53 (1995) (interpreting standard for judging California’s Anti-SLAPP motion to dismiss to avoid violating the state constitutional right to jury trial); cf. Leiendecker v. Asian Women United of Minn., 848 N.W.2d 224, 232-33 (Minn. 2014) (concluding that it was not possible to use constitutional avoidance canon to interpret statute to avoid constitutional defect where statutory language “unambiguously require[s] the responding party to produce evidence and the district court to make a finding on whether ‘the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability’” (quoting Minn. Stat. § 554.02 (2014)).
31 Colorado, which was specifically cited in the Committee Report, applies a similar standard. See Report on Bill 18-893 at 2 n.4. In Protect Our Mountain Env’t, Inc. v. Dist. Court, 677 P.2d 1361 (Colo. 1984), the Colorado Supreme Court crafted a means to protect the First Amendment right to petition of a defendant sued for abuse of process, while also protecting “those truly aggrieved by abuse of these processes to vindicate their own legal rights.” Id. at 1369. The court permits the parties to present “all material pertinent to the motion” and then considers a motion to dismiss “as one for summary judgment.” Id. In resolving the motion, the court applies a “heightened standard” intended to protect petitioning activity by requiring a showing that
(1) the . . . claims were devoid of reasonable factual support, or, if so supportable, lacked any cognizable basis in law for their assertion; and (2) the primary purpose of the defendant’s petitioning activity was to harass the plaintiff or to effectuate some other improper objective; and (3) the defendant’s petitioning activity had the capacity to adversely affect a legal interest of the plaintiff.
Id.
Other states have adopted similar approaches. California’s Anti-SLAPP statute, which requires a showing “that there is a probability that the plaintiff will prevail on the claim,” CAL. CIV. PROC. CODE § 425.16 (b)(1) (West 2015), has been interpreted as requiring the plaintiff to “state and substantiate a legally sufficient claim,” by “demonstrat[ing]” that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Rusheen v. Cohen, 128 P.3d 713, 718 (Cal. 2006) (alterations in original omitted) (quoting Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)). See also Yount v. Handshoe, 171 So.3d 381, 387 n.4 (La. Ct. App. 2015) (commenting that Louisiana and California’s Anti-SLAPP statutes match “word for word”); John v. Douglas Cty. Sch. Dist., 219 P.3d 1276, 1281 (Nev. 2009)) (stating that under Nevada’s statute requiring “clear and convincing evidence [of] a probability of prevailing on the claim,” plaintiff must show genuine issue of material fact); OR. REV. STAT. § 31.150 (2010) (providing that if defendant makes prima facie showing speech is protected by statute, “the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case”).
32 The D.C. Circuit has described the Anti-SLAPP Act’s “likely to succeed” standard as “an additional hurdle a plaintiff must jump over to get to trial,” and opined (without elaboration) that the standard “is different from and more difficult” than for summary judgment under Federal Rule 56. Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333-34 (D.C. Cir. 2015). For the reasons we note in the text, we agree with Abbas that the special motion to dismiss is different from summary judgment in that it imposes the burden on plaintiffs and requires the court to consider the legal sufficiency of the evidence presented before discovery is completed. As concerns the standard to be employed by the court in deciding whether to grant the motion, however, the question is substantively the same: whether the evidence suffices to permit a jury to find for the plaintiff.
Abbas also stated that the special motion to dismiss created by D.C. Code § 16-5502 does not apply in federal court because it answers the same question as the Federal Rules of Civil Procedure — when a court must dismiss a case before trial — in a different way. Id. at 1336. Implicit in Abbas is that the special motion to dismiss is only procedural in nature rendering it inapplicable in federal court sitting in diversity. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938); Burke v. Air Serv Int’l, Inc., 685 F.3d 1102, 1104 (D.C. Cir. 2012) (applying Erie doctrine to District of Columbia). Other federal appellate courts have come to a different conclusion and applied similar state Anti-SLAPP procedures. See, e.g., Liberty Synergistics, Inc. v. Microflo Ltd., 718 F.3d 138, 143-44 (2d Cir. 2013) (applying California Anti-SLAPP statute’s “probability” standard); Price v. Stossel, 620 F.3d 992, 1000 (9th Cir. 2010) (same); Godin, 629 F.3d at 89 (applying Maine Anti-SLAPP statute’s special motion to dismiss because it is “so intertwined with a state right or remedy that it functions to define the scope of the state-created right”) (quoting Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 423 (2010) (Stevens, J., concurring)); Henry, 566 F.3d at 168-69 (applying Louisiana Anti-SLAPP statute’s “nominally-procedural” special motion to dismiss “probability” standard). But cf. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1361-62 (11th Cir. 2014) (declining to apply Georgia Anti-SLAPP statute’s verification requirement because it was procedural and conflicted with Federal Rules of Civil Procedure, which do not require verification).
The applicability of the Anti-SLAPP statute in federal court is not for this court to determine. Abbas recognized that at the time, this court “has never interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply mirror the standards imposed by” Federal Rule 56. 783 F.3d at 1135. We do so now. This court’s interpretation of the standard applicable to the special motion to dismiss under District of Columbia law will no doubt factor into future analysis of the dicta in Abbas concerning the applicability of the Anti-SLAPP Act in litigation brought in federal courts. See Abbas, 783 F.3d at 1339-1341 (dismissing complaint with prejudice under Rule 12 (b)(6) for failure to state a claim).
33 As discussed infra, the level of fault — from negligence to actual malice — depends on whether the plaintiff is a public official or, if a private individual, is deemed a public figure with respect to the subject matter of the statement alleged to be defamatory.