Yasser Abbas v. Foreign Policy Group, LLC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2014 Decided April 24, 2015

No. 13-7171

YASSER ABBAS,

APPELLANT

v.

FOREIGN POLICY GROUP, LLC AND JONATHAN SCHANZER,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01565)

Louis G. Adolfsen argued the cause for appellant. With

him on the briefs was S. Dwight Stephens.

Kevin T. Baine argued the cause for appellees. With him

on the brief were Adam R. Tarosky, James M. McDonald,

Nathan E. Siegel, Seth D. Berlin, and Shaina J. Ward.

Irvin B. Nathan, Attorney General, Office of the Attorney

General for the District of Columbia, Ariel B.

Levinson-Waldman, Senior Counsel to the Attorney General,

Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy

Solicitor General, and Rebecca P. Kohn, Assistant Attorney

General, were on the brief for the District of Columbia as

2

amicus curiae in support of the District of Columbia Anti-

SLAPP Act’s applicability in federal diversity cases.

Laura R. Handman, Alison Schary, Thomas R. Burke,

Richard A. Bernstein, Kevin M. Goldberg, Karen Kaiser,

Jonathan Bloom, Randy L. Shapiro, Jonathan D. Hart, Mark

H. Jackson, Jason P. Conti, Jacob P. Goldstein, Oscar Grut,

David Giles, Susan E. Seager, Barbara W. Wall, Jonathan

Donnellan, Kristina Findikyan, Karole Morgan-Prager, Juan

Cornejo, Sandra S. Baron, Kathleen A. Hirce, Charles D.

Tobin, Mickey H. Osterreicher, Greg Lewis, Denise Leary,

Ashley Messenger, Susan Weiner, David E. McCraw, Mark H.

Jackson, Kurt Wimmer, Richard J. Tofel, Bruce D. Brown,

Gregg P. Leslie, Gail Gove, Bruce W. Sanford, Laurie A.

Babinski, Karen H. Flax, Julie Xanders, Ed Lazarus, John B.

Kennedy, and James A. McLauglin were on the brief for amici

curiae Media Organizations in support of appellees.

Before: KAVANAUGH and SRINIVASAN, Circuit Judges,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: Yasser Abbas is the son of

current Palestinian leader Mahmoud Abbas. In 2012, the

Foreign Policy Group published an article on its website

about Yasser Abbas and his brother Tarek. At the outset, the

article asked two questions: “Are the sons of the Palestinian

president growing rich off their father’s system?” and “Have

they enriched themselves at the expense of regular

Palestinians – and even U.S. taxpayers?”

In response to the questions posed in the article, Yasser

Abbas filed suit in the U.S. District Court for the District of

3

Columbia against the Foreign Policy Group and the article’s

author, Jonathan Schanzer. Abbas alleged defamation under

D.C. law. But the D.C. Anti-Strategic Lawsuits Against

Public Participation Act of 2010 (known as the Anti-SLAPP

Act) requires courts, upon motion by the defendant, to dismiss

defamation lawsuits that target political or public advocacy,

unless the plaintiff can show a likelihood of success on the

merits. Applying the D.C. Anti-SLAPP Act, the District

Court dismissed Abbas’s defamation complaint.

Abbas now appeals. He contends that a federal court

exercising diversity jurisdiction may not apply the D.C. Anti-

SLAPP Act’s special motion to dismiss provision. In Abbas’s

view, the D.C. provision makes it easier for defendants to

obtain dismissal of a case before trial than the more plaintiff-

friendly standards in Rules 12 and 56 of the Federal Rules of

Civil Procedure. Citing the Supreme Court’s decision in

Shady Grove Orthopedic Associates, P.A. v. Allstate

Insurance Co., 559 U.S. 393 (2010), Abbas says we must

follow the Federal Rules, not the D.C. Anti-SLAPP Act, in

this federal court proceeding. We agree with Abbas on that

point. But we affirm the District Court’s judgment on an

alternative ground: Under Federal Rule 12(b)(6), Abbas’s

allegations do not suffice to make out a defamation claim

under D.C. law.

I

A

Many States have enacted anti-SLAPP statutes to give

more breathing space for free speech about contentious public

issues. Those statutes “try to decrease the ‘chilling effect’ of

certain kinds of libel litigation and other speech-restrictive

litigation.” Eugene Volokh, The First Amendment and

Related Statutes 118 (5th ed. 2014). The statutes generally

4

accomplish that objective by making it easier to dismiss

defamation suits at an early stage of the litigation.

Like the various States’ anti-SLAPP laws, the D.C. Anti-

SLAPP Act makes it easier for defendants sued for

defamation and related torts to obtain quick dismissal of

harassing lawsuits. The D.C. Council passed the Act in 2010

in response to what the Council described as an upsurge in

“lawsuits filed by one side of a political or public policy

debate aimed to punish or prevent the expression of opposing

points of view.” Council of the District of Columbia,

Committee on Public Safety and the Judiciary, Report on Bill

18-893, at 1 (Nov. 18, 2010).

Under the Act as relevant here, a defendant 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.” D.C. Code § 16-5502(a). To obtain dismissal, the

defendant first must make 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.” Id. § 16-5502(b). If

the defendant makes that prima facie showing, then the

plaintiff must demonstrate that “the claim is likely to succeed

on the merits.” Id. If the plaintiff makes that showing, the

defendant’s special motion to dismiss must be denied.

Otherwise, the special motion to dismiss must be granted. See

id. (As we will see, that likelihood of success requirement is

important to this case.) While a special motion to dismiss is

pending, discovery is stayed except for limited purposes. Id.

§ 16-5502(c). A defendant who prevails on a special motion

to dismiss may recover the costs of litigation, including

reasonable attorney’s fees. Id. § 16-5504(a).

5

B

Yasser Abbas is the son of Palestinian leader Mahmoud

Abbas and is a businessman with substantial commercial

interests in the Middle East. Yasser Abbas and his brother

Tarek were featured in “The Brothers Abbas,” an article by

Jonathan Schanzer published by Foreign Policy Group on its

website.

Schanzer’s article addresses the Abbas brothers’ wealth

and its possible sources. The article’s subtitle poses a

question: “Are the sons of the Palestinian president growing

rich off their father’s system?” The first paragraph asks a

similar question: “Have they enriched themselves at the

expense of regular Palestinians – and even U.S. taxpayers?”

The article recounts allegations of corruption that a

former economic advisor to Yasir Arafat made against

Mahmoud Abbas. It then describes the “conspicuous wealth”

of Yasser and Tarek Abbas. Noting that the brothers’ success

“has become a source of quiet controversy in Palestinian

society,” the article describes their credentials and business

ventures in some detail. In discussing Yasser Abbas, the

article acknowledges that the “president’s son is certainly

entitled to do business in the Palestinian territories. But the

question is whether his lineage is his most important

credential – a concern bolstered by the fact that he has

occasionally served in an official capacity for the Palestinian

Authority.” Finally, the article notes that “the Abbas brothers

have largely dropped out of sight,” but that Palestinians

continue to whisper about the source of the brothers’ success.

In response to the article, Yasser Abbas filed a D.C.-law

defamation suit in the U.S. District Court for the District of

Columbia against the Foreign Policy Group and Schanzer.

6

Abbas’s defamation claims rest on the two questions posed at

the outset of the article. See Compl. ¶¶ 46-94.

The Foreign Policy Group and Schanzer moved to

dismiss the complaint under the special motion to dismiss

provision of the D.C. Anti-SLAPP Act. They also moved to

dismiss under Federal Rule of Civil Procedure 12(b)(6). The

District Court granted the defendants’ special motion to

dismiss under the D.C. Anti-SLAPP Act, dismissed Abbas’s

complaint with prejudice, and denied the defendants’ Rule

12(b)(6) motion as moot. Abbas v. Foreign Policy Group,

LLC, 975 F. Supp. 2d 1, 20 (D.D.C. 2013). Abbas promptly

appealed.

II

The first issue before the Court is whether a federal court

exercising diversity jurisdiction may apply the D.C. Anti-

SLAPP Act’s special motion to dismiss provision. The

answer is no. Federal Rules of Civil Procedure 12 and 56

establish the standards for granting pre-trial judgment to

defendants in cases in federal court. A federal court must

apply those Federal Rules instead of the D.C. Anti-SLAPP

Act’s special motion to dismiss provision.

A

A federal court exercising diversity jurisdiction should

not apply a state law or rule if (1) a Federal Rule of Civil

Procedure “answer[s] the same question” as the state law or

rule and (2) the Federal Rule does not violate the Rules

Enabling Act. Shady Grove Orthopedic Associates, P.A. v.

Allstate Insurance Co., 559 U.S. 393, 398-99 (2010) (majority

7

opinion) (citing Hanna v. Plumer, 380 U.S. 460, 463-64

(1965)). 1

For the category of cases that it covers, the D.C. Anti-

SLAPP Act establishes the circumstances under which a court

must dismiss a plaintiff’s claim before trial – namely, when

the court concludes that the plaintiff does not have a

likelihood of success on the merits. But 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. And those Federal Rules answer that question

differently: They do not require a plaintiff to show a

likelihood of success on the merits. 2

That difference matters. Under the Federal Rules, a

plaintiff is generally entitled to trial if he or she meets the

Rules 12 and 56 standards to overcome a motion to dismiss or

for summary judgment. But the D.C. Anti-SLAPP Act

nullifies that entitlement in certain cases. Under the D.C.

Anti-SLAPP Act, the plaintiff is not able to get to trial just by

meeting those Rules 12 and 56 standards. The D.C. Anti-

SLAPP Act, in other words, conflicts with the Federal Rules

by setting up an additional hurdle a plaintiff must jump over

to get to trial.

In particular, under Federal Rule 12(b)(6), a plaintiff can

overcome a motion to dismiss by simply alleging facts

1

In Shady Grove, Parts I and II-A of Justice Scalia’s opinion

commanded a majority of the Court. Those sections govern our

analysis of whether a federal rule answers the same question as a

state law.

2

Although D.C. is not a state, Shady Grove’s two-part

framework applies to federal court cases involving a local D.C. law.

See Burke v. Air Serv International, Inc., 685 F.3d 1102, 1107-08

(D.C. Cir. 2012).

8

sufficient to state a claim that is plausible on its face. See Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

well-pleaded complaint “may proceed even if it strikes a

savvy judge that actual proof of the facts alleged is

improbable.” Id. at 556. If the complaint survives a motion

to dismiss, a defendant may still move before trial for

summary judgment under Rule 56. But Rule 56 permits

summary judgment only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Rules 12 and 56 help form “an integrated program” for

determining whether to grant pre-trial judgment in cases in

federal court. Makaeff v. Trump University, LLC, 715 F.3d

254, 274 (9th Cir. 2013) (Kozinski, J., concurring); see also

Makaeff v. Trump University, LLC, 736 F.3d 1180, 1188 (9th

Cir. 2013) (Watford, J., dissenting from denial of rehearing en

banc) (Rules 12 and 56 “establish the exclusive criteria for

testing the legal and factual sufficiency of a claim in federal

court.”).

In short, unlike 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.

Under Shady Grove, therefore, we may not apply the D.C.

Anti-SLAPP Act’s special motion to dismiss provision.

To avoid that conclusion, the defendants in this case

advance four basic arguments.

First, the defendants try to portray the D.C. Anti-SLAPP

Act’s special motion to dismiss provision as functionally

identical to Federal Rule 56’s summary judgment test. They

creatively argue that the D.C. Anti-SLAPP Act’s likelihood of

success standard is just another way of describing the federal

test for summary judgment. As they see it, the D.C. Anti-

9

SLAPP Act therefore does not conflict with the Federal

Rules’ comprehensive scheme for testing the sufficiency of a

complaint. And they further say that state rules that answer

the same question in the same way as the Federal Rules are

not preempted under Shady Grove. Therefore, in their view,

the D.C. Anti-SLAPP Act, taken as a whole, does not alter the

standard for pre-trial dismissal or summary judgment, but

simply layers a right to attorney’s fees in this category of

cases on top of the existing federal procedural scheme. See

D.C. Code § 16-5504 (D.C. Anti-SLAPP Act attorney’s fees

provision).

The main problem with the defendants’ theory is that it

requires the Court to re-write the special motion to dismiss

provision. Had the D.C. Council simply wanted to permit

courts to award attorney’s fees to prevailing defendants in

these kinds of defamation cases, it easily could have done so.

But the D.C. Council instead enacted a new provision that

answers the same question about the circumstances under

which a court must grant pre-trial judgment to defendants.

Moreover, the D.C. Court of Appeals has never interpreted

the D.C. Anti-SLAPP Act’s likelihood of success standard to

simply mirror the standards imposed by Federal Rules 12 and

56. Put simply, the D.C. Anti-SLAPP Act’s likelihood of

success standard is different from and more difficult for

plaintiffs to meet than the standards imposed by Federal Rules

12 and 56. 3

3

An interesting issue could arise if a State anti-SLAPP act did

in fact exactly mirror Federal Rules 12 and 56. Would it still be

preempted under Shady Grove? As defendants’ argument suggests,

the answer to that question could matter for attorney’s fees and the

like. But we need not address that hypothetical here because, as we

have explained, the D.C Anti-SLAPP Act’s dismissal standard does

not exactly mirror Federal Rules 12 and 56.

10

Second, the defendants suggest that the special motion to

dismiss provision embodies a substantive D.C. right not found

in the Federal Rules – a form of qualified immunity shielding

participants in public debate from tort liability.

Qualified immunity heightens the substantive showing a

plaintiff must make in order to hold a defendant liable. To

over-simplify for present purposes, qualified immunity allows

defendants to avoid liability even when they may have

violated the law so long as they acted reasonably. Qualified

immunity (on its own) does not tell a court what showing is

necessary at the motion to dismiss or summary judgment

stages in order to dismiss a case before trial. Rather, Federal

Rules 12 and 56 do that. The D.C. Anti-SLAPP Act, to use

the words of the D.C. Court of Appeals, establishes a new

“procedural mechanism” for dismissing certain cases before

trial. Doe No. 1 v. Burke, 91 A.3d 1031, 1036 (D.C. 2014).

And it differs from those Federal Rules.

Third, the defendants briefly point to the Private

Securities Litigation Reform Act of 1995, which modified the

pleading standards applicable in certain categories of

securities cases. Pub. L. No. 104-67, 109 Stat. 737 (1995).

They cite that Act as evidence that Federal Rules 12 and 56

do not foreclose the application of other pleading standards.

But Congress, unlike the States or the District of Columbia,

“has ultimate authority over the Federal Rules of Civil

Procedure; it can create exceptions to an individual rule as it

sees fit – either by directly amending the rule or by enacting a

separate statute overriding it in certain instances.” Shady

Grove, 559 U.S. at 400 (majority opinion). Congress’s

decision to enact a heightened pleading standard for a small

subset of federal question cases does not change the fact that

Rules 12 and 56 otherwise “apply generally.” Id.

11

Fourth, the defendants cite some other courts that have

applied State anti-SLAPP acts’ pretrial dismissal provisions

notwithstanding Federal Rules 12 and 56. See, e.g., Godin v.

Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); Henry v. Lake

Charles American Press, L.L.C., 566 F.3d 164, 168-69 (5th

Cir. 2009); United States ex rel. Newsham v. Lockheed

Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); see

generally Charles Alan Wright et al., 19 Federal Practice &

Procedure § 4509 (2d ed. 2014). That is true, but we agree

with Judge Kozinski and Judge Watford that those decisions

are ultimately not persuasive. See Makaeff, 736 F.3d at 1188

(Watford, J., dissenting from denial of rehearing en banc)

(“California’s anti-SLAPP statute impermissibly supplements

the Federal Rules’ criteria for pre-trial dismissal of an

action.”); Makaeff, 715 F.3d at 275 (Kozinski, J., concurring)

(“Federal courts have no business applying exotic state

procedural rules which, of necessity, disrupt the

comprehensive scheme embodied in the Federal Rules.”).

In short, Federal Rules 12 and 56 answer the same

question as the Anti-SLAPP Act’s special motion to dismiss

provision. Under Shady Grove, Rules 12 and 56 therefore

govern in diversity cases in federal court, unless Rules 12 and

56 violate the Rules Enabling Act. 4 We turn now to that

question.

B

The Rules Enabling Act empowers the Supreme Court to

“prescribe general rules of practice and procedure and rules of

evidence” for cases in the lower federal courts. 28 U.S.C.

§ 2072(a). A Federal Rule of Civil Procedure violates the

4

Of course, the Federal Rule of Civil Procedure in question

would not govern if the Rule was unconstitutional in some respect.

There is no suggestion of unconstitutionality in this case.

12

Rules Enabling Act if it abridges, enlarges, or modifies any

substantive right. See id. § 2072(b). So far, the Supreme

Court has rejected every challenge to the Federal Rules that it

has considered under the Rules Enabling Act. See Shady

Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.,

559 U.S. 393, 407 (2010) (plurality opinion of Scalia, J.). We

need not take a long time here to explain that Federal Rules

12 and 56 are valid under the Rules Enabling Act.

In Shady Grove, the Supreme Court considered whether

the Rule at issue there, Rule 23 of the Federal Rules of Civil

Procedure, violated the Rules Enabling Act. The Court issued

no majority opinion on the test used to analyze whether a

Rule violates the Rules Enabling Act. Justice Scalia wrote an

opinion for four Justices, and Justice Stevens wrote an

opinion for only himself. The other four Justices did not

directly address that issue.

Justice Scalia’s plurality opinion for four Justices strictly

followed a prior Supreme Court precedent, Sibbach v. Wilson

& Co., 312 U.S. 1 (1941). See Shady Grove, 559 U.S. at 407-

10 (plurality opinion). In Sibbach, the Supreme Court held

that the test for whether a Federal Rule violates the Rules

Enabling Act is whether that Rule “really regulates

procedure” – that is, really regulates “the judicial process for

enforcing rights and duties recognized by substantive law and

for justly administering remedy and redress for disregard or

infraction of them.” Sibbach, 312 U.S. at 14; see Hanna v.

Plumer, 380 U.S. 460, 464, 470-71 (1965) (applying Sibbach

test). By contrast to Justice Scalia’s plurality opinion for four

Justices, Justice Stevens’s opinion in Shady Grove would

have distinguished and limited Sibbach. See Shady Grove,

559 U.S. at 427-28 (Stevens, J., concurring in part and

concurring in the judgment); cf. id. at 412 (plurality opinion)

13

(“In reality, the concurrence seeks not to apply Sibbach, but to

overrule it (or, what is the same, to rewrite it).”).

So four Justices adopted one formulation. One Justice

adopted a different formulation. And four Justices did not

address the question. What should we do in the face of such

an unresolved 4-1 disagreement? Neither the 4-Justice view

nor the 1-Justice view on its own is binding in these unusual

circumstances. Moreover, neither opinion can be considered

the Marks middle ground or narrowest opinion, as the four

Justices in dissent simply did not address the issue. See

generally Marks v. United States, 430 U.S. 188 (1977); cf.

United States v. Duvall, 740 F.3d 604, 609-11 (D.C. Cir.

2013) (Kavanaugh, J., concurring). In addition, on the precise

question before us – whether the governing standard is still

the Sibbach standard of “really regulates procedure” or

instead something else – no common conclusion was

articulated by the 4-Justice opinion and the 1-Justice opinion.

Therefore, the answer for us, in these particular

circumstances, is to follow the Supreme Court’s pre-existing

precedent in Sibbach. Unless and until the Supreme Court

overrules or narrows its decision in Sibbach, that case remains

good law and is binding on lower courts.

The Sibbach test is very simple to apply here. Under

Sibbach, any federal rule that “really regulates procedure” is

valid under the Rules Enabling Act. Sibbach, 312 U.S. at 14;

see also Shady Grove, 559 U.S. at 410 (plurality opinion)

(quoting that statement from Sibbach); Hanna, 380 U.S. at

464 (same). As the Supreme Court indicated in Shady Grove

(in a portion of the opinion that spoke for a majority),

pleading standards and rules governing motions for summary

judgment are procedural. See Shady Grove, 559 U.S. at 404

(majority opinion) (pleading standards and rules governing

summary judgment are rules “addressed to procedure”). It

14

follows that Rules 12 and 56 are valid under the Rules

Enabling Act.

In sum, Federal Rules 12 and 56 answer the same

question as the D.C. Anti-SLAPP Act, and those Federal

Rules are valid under the Rules Enabling Act. A federal court

exercising diversity jurisdiction therefore must apply Federal

Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s

special motion to dismiss provision. 5

III

That conclusion does not end this appeal. The Court may

affirm a district court judgment on “any ground the record

supports” and that the “opposing party had a fair opportunity

to address.” Jones v. Bernanke, 557 F.3d 670, 676 (D.C. Cir.

2009) (internal quotation marks omitted); see Washington-

Baltimore Newspaper Guild, Local 35 v. Washington Post,

959 F.2d 288, 292 n.3 (D.C. Cir. 1992).

During the District Court proceedings, in addition to their

motion to dismiss under the D.C. Anti-SLAPP Act, the

defendants also filed a motion to dismiss Abbas’s complaint

under Federal Rule 12(b)(6). In their Rule 12(b)(6) motion,

the defendants argued that the complaint failed to state a

claim under D.C. defamation law. The parties fully briefed

that motion, but the District Court denied it as moot after

5

After granting or denying a special motion to dismiss under

the Anti-SLAPP Act, a court may grant attorney’s fees and costs to

the prevailing party. See D.C. Code § 16-5504. The Act does not

purport to make attorney’s fees available to parties who obtain

dismissal by other means, such as under Federal Rule 12(b)(6).

Therefore, although we conclude that the case should be dismissed

under Rule 12(b)(6), attorney’s fees under the Anti-SLAPP Act are

not available to the defendants in this case.

15

granting the defendants’ Anti-SLAPP Act special motion to

dismiss. Abbas v. Foreign Policy Group, LLC, 975 F. Supp.

2d 1, 20 (D.D.C. 2013). As appellees in this court, the

defendants have renewed their Rule 12(b)(6) arguments, and

both parties have briefed the issue. We agree with the

defendants that Rule 12(b)(6) requires dismissal of Abbas’s

complaint.

Dismissal under Rule 12(b)(6) is proper when a plaintiff

has failed to plead “enough facts to state a claim to relief that

is plausible on its face” and to nudge his claims “across the

line from conceivable to plausible.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

To establish liability for defamation under D.C. law,

Abbas must show, among other things, that the defendants

made a false and defamatory statement about him. See Doe

No. 1 v. Burke, 91 A.3d 1031, 1044 (D.C. 2014). 6

In this case, however, Abbas’s defamation claim focuses

not on statements made in the article but rather on two

6

To determine which jurisdiction’s laws govern Abbas’s

defamation claim, we apply the choice-of-law rules of the

jurisdiction in which we sit. Wu v. Stomber, 750 F.3d 944, 949

(D.C. Cir. 2014). D.C.’s choice-of-law rules “require that we apply

the tort law of the jurisdiction that has the most significant

relationship to the dispute.” Id. (internal quotation marks omitted).

That inquiry “requires that we consider where the injury occurred,

where the conduct causing the injury occurred, the domicile,

residence, nationality, place of incorporation and place of business

of the parties, and the place where the relationship is centered.” Id.

(internal quotation marks omitted). In his complaint, Abbas alleges

that the conduct that caused his injury took place in the District of

Columbia. The defendants agree that D.C. law should govern. The

parties relied on D.C. defamation law in briefing this appeal. We

conclude that D.C. defamation law governs this dispute.

16

questions posed in the article: “Are the sons of the

Palestinian president growing rich off their father’s system?”

and “Have they enriched themselves at the expense of regular

Palestinians – and even U.S. taxpayers?”

Those questions are not factual representations. The

article does not say, for example, that the “sons of the

Palestinian president are growing rich off their father’s

system” and “have enriched themselves at the expense of

regular Palestinians and U.S. taxpayers.”

Although the D.C. courts have not confronted the issue of

whether questions can be defamatory, it is generally settled as

a matter of defamation law in other jurisdictions that a

question, “however embarrassing or unpleasant to its subject,

is not accusation.” Chapin v. Knight-Ridder, Inc., 993 F.2d

1087, 1094 (4th Cir. 1993). Questions indicate a defendant’s

“lack of definitive knowledge about the issue.” Partington v.

Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995). 7

For that reason, posing questions has rarely given rise to

successful defamation claims in other jurisdictions. See, e.g.,

id.; Beverly Hills Foodland, Inc. v. United Food &

Commercial Workers Union, Local 655, 39 F.3d 191, 195-96

(8th Cir. 1994); Chapin, 993 F.2d at 1094; Phantom Touring,

Inc. v. Affiliated Publications, 953 F.2d 724, 729-31 (1st Cir.

1992); 1 Robert D. Sack, Sack on Defamation § 2:4.8 (4th ed.

7

To be sure, as Judge Sack notes and as case law bears out,

questions that contain embedded factual assertions may sometimes

form the basis for a successful defamation claim. See 1 Robert D.

Sack, Sack on Defamation § 2:4.8 (4th ed. 2010) (quoting Chapin,

993 F.2d at 1094). For example, a question such as “Given that

Jones repeatedly abused children, why is he still employed by the

school district?” contains a factual assertion that Jones abused

children. But that is not what we have here.

17

2010). As Judge Sack’s treatise cogently explains, albeit in a

slightly different context, whether a question can give rise to a

successful defamation claim “is significant. Reporters

routinely and necessarily ask questions in order to obtain

information, and the mere asking of a question may cast a

shadow on the reputation of a person about whom the

question is asked. But a genuine effort to obtain information

cannot be defamatory. A contrary rule would render

legitimate reporting impossible.” 1 Sack on Defamation

§ 2:4.8. Questions can be posed to explore, to inquire, to

prompt further inquiry, to frame discussion, to initiate

analysis, and the like. But questions are questions.

As a federal court exercising diversity jurisdiction and

applying the general tenets of D.C. defamation law, we here

follow the widely adopted defamation principle that questions

are questions. After all, just imagine the severe infringement

on free speech that would ensue in the alternative universe

envisioned by Abbas. Is the Mayor a thief? Is the

quarterback a cheater? Did the Governor accept bribes? Did

the CEO pay her taxes? Did the baseball star take steroids?

Questions like that appear all the time in news reports and on

blogs, in tweets and on cable shows. And all such questions

could be actionable under Abbas’s novel defamation theory.

But D.C. law has not previously extended defamation liability

to those kinds of questions.

Of course, some commentators and journalists use

questions – such as the classic “Is the President a crook?” – as

tools to raise doubts (sometimes unfairly) about a person’s

activities or character while simultaneously avoiding

defamation liability. After all, a question’s wording or tone or

context sometimes may be read as implying the writer’s

answer to that question. But to make out a defamation by

implication claim even in cases involving affirmative

18

statements, D.C. law requires an “especially rigorous

showing.” Guilford Transportation Industries, Inc. v. Wilner,

760 A.2d 580, 596 (D.C. 2000) (quoting Chapin, 993 F.2d at

1092-93). And Abbas has not cited any D.C. case allowing a

defamation by implication claim based on mere questions.

The reason for the absence of such D.C. case law seems

evident. There is no good or predictable way to neatly divide

(i) the questions that are routinely posed in America’s robust

public forums from (ii) the kinds of questions that would be

actionable as defamation by implication under Abbas’s

theory. Abbas’s theory would thus necessarily ensnare a

substantial amount of speech that is essential to the

marketplace of ideas and would dramatically chill the

freedom of speech in the District of Columbia. We will not

usher D.C. law down such a new and uncertain road.

In short, the questions posed in the article at issue in this

case do not suffice for Abbas to make out a defamation claim

under D.C. law. The defendants are therefore entitled to

dismissal of Abbas’s defamation claim under Rule 12(b)(6). 8

IV

Applying the Anti-SLAPP Act, the District Court

dismissed Abbas’s complaint with prejudice. Although we

have relied on alternative grounds to affirm the dismissal, we

likewise conclude that dismissal should be with prejudice.

Dismissal with prejudice is warranted when “the allegation of

8

The defendants offer other bases for dismissal under Rule

12(b)(6). They allege that Abbas is a public figure and that he

failed to demonstrate actual malice in his complaint. They also

claim that the District of Columbia’s fair comment privilege

protects the defendants from liability. Having already decided in

the defendants’ favor on other grounds, we need not reach those

alternative arguments.

19

other facts consistent with the challenged pleading could not

possibly cure the deficiency.” Belizan v. Hershon, 434 F.3d

579, 583 (D.C. Cir. 2006) (internal quotation marks omitted);

cf. Rollins v. Wackenhut Services, Inc., 703 F.3d 122, 132-33

(D.C. Cir. 2012) (Kavanaugh, J., concurring) (dismissal under

Rule 12(b)(6) is ordinarily dismissal with prejudice, unless

district court in its discretion states otherwise). Abbas’s

complaint relies exclusively on two questions in one article.

We have held that those questions, as a matter of law, do not

qualify as false and defamatory statements under D.C. law.

Therefore, dismissal with prejudice is appropriate.

***

The District Court dismissed Abbas’s complaint with

prejudice. We affirm the judgment of the District Court.

So ordered.