Last April, a picture was taken of Cassandra Fairbanks and Mike Cernovich in the White House press room flashing an ok hand gesture. At the time, rumors circulated on the Internet that the ok hand gesture meant “white power.” So Emma Roller, a politics reporter, tweeted Fairbanks’ photo to her followers with the statement “just two people doing a white power hand gesture in the White House.” Roller then sent a second tweet in which she linked to an entry in the Anti-Defamation League Hate Symbols Database for White Power (hand sign). The ADL, however, then issued a press release in which it explained the ok sign was not a white power symbol, but was instead the creation of internet hoaxers.
Indeed, Fairbanks sent out tweets acknowledging that Roller had been the victim of the hoax, and laughing at her. Then she sued Roller for defamation, false light, intentional infliction of emotional harm, and negligent infliction of emotional distress, based on the first tweet. Before Roller filed a responsive pleading, Fairbanks amended her complaint to drop all the causes of action except the first one for defamation per se.
Roller moved to dismiss the complaint, arguing the tweet was protected opinion that was not capable of being proven true or false or, alternatively, that the suit should be dismissed because Fairbanks had not pleaded facts showing the tweet was published with actual malice.
Roller filed a companion anti-SLAPP special motion to dismiss in which she argued that, although the DC Circuit (in Abbas) held the anti-SLAPP statute was inapplicable in a federal court diversity case, that conclusion was based on that court’s prediction the standard under the statute was inconsistent with the Federal Rules of Civil Procedure. Roller argued that, because the DC Court of Appeals (in Mann) then held, as a matter of “first impression,” that the statute’s “likely to succeed” standard was, in fact, “substantively the same” and does “simply mirror” the standards imposed by Federal Rule 56, the factual underpinning for the Abbas decision was no longer valid, and the court should apply the statute in federal court.