Salem Media Grp., Inc. v. Awan

301 A.3d 633

SALEM MEDIA GROUP, INC., Appellant, v. Imran AWAN, et al., Appellees.

No. 22-CV-0004

District of Columbia Court of Appeals.

Argued March 29, 2023

Decided September 7, 2023

Gabriela Richeimer, Washington, for appellant.

Deepak Gupta, Washington, with whom Kyle Farrar, Mark Bankston, Houston, TX, Hassan A. Zavareei, Washington, Allison W. Parr, Spencer Hughes, Leora N. Friedman, Peter Romer-Friedman, Robert Friedman, Washington, and Neil K. Sawhney, were on the brief, for appellees.

Before Blackburne-Rigsby, Chief Judge, Alikhan, Associate Judge, and Glickman, Senior Judge.

Glickman, Senior Judge:

In 2019, appellant Salem Media Group, Inc., published a book titled Obstruction of Justice: How the Deep State Risked National Security to Protect the Democrats (hereinafter, Obstruction of Justice ). The book details its author Luke Rosiak's investigative journalism into the activities of appellees Imran Awan, Abid Awan, Jamal Awan, Tina Alvi, and Rao Abbas. These five individuals, whom the parties have referred to collectively as "the Awans," are former information technology support staff employed by the U.S. House of Representatives. As previously had been reported in the news media, the Awans were investigated for alleged violations of House policies and possible crimes relating to equipment procurement, IT security, and other job-related matters. The Awans sued Salem for defamation, intentional infliction of emotional distress (IIED), and unjust enrichment based on Rosiak's statements in Obstruction of Justice regarding their alleged misconduct.

This interlocutory appeal is from the denial of Salem's "special motion to dismiss" under the District of Columbia Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act. ¹ The Anti-SLAPP Act was passed to protect the targets of lawsuits aimed at punishing or preventing the expression of opposing points of view on matters of public concern. ² The Act allows the defendant to file a "special motion to dismiss" to test the legal and factual sufficiency of the claims early in the litigation. The defendant must first 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." ³ If that showing is made, then the burden shifts to the plaintiff to demonstrate "that the claim is likely to succeed on the merits." ⁴ "[T]he 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." ⁵ If the plaintiff's showing fails, then the special motion to dismiss must be granted.

The Anti-SLAPP Act special-motion-to-dismiss procedure functions essentially like an early motion for summary judgment under Superior Court Civil Rule 56. There are important differences, however — among them, that the special motion to dismiss "requires the court to consider the legal sufficiency of the evidence presented before discovery is completed." ⁶ In the present appeal, the Awans have not challenged the discovery-limiting aspects of the special-motion-to-dismiss procedure, nor have they complained that the restriction of their ability to take discovery prejudiced them in responding to the special motion in this case. Accordingly, we do not opine on that subject in this opinion. We note, however, that in another appeal decided on the same date as this one, this court has held that the Anti-SLAPP Act's restrictive special-motion-to-dismiss discovery provisions violate the Home Rule Act because they conflict with the more liberal discovery provisions of Rule 56 and therefore are "inoperative or unenforceable." ⁷

Salem moved under the Anti-SLAPP Act to dismiss all three causes of action asserted by the Awans. The trial court denied Salem's motion in full. Salem argues that the trial court erred and that each claim should have been dismissed.

First, Salem contends the court erred in failing to dismiss the Awans’ defamation claim for lack of sufficient proof of malice on Salem's part. Recognizing that the goal of compensating persons who are harmed by the publication of libelous falsehoods may be in tension with the core First Amendment goal of protecting vigorous speech and debate about issues of public interest, the Supreme Court has held that certain plaintiffs asserting defamation claims directly implicating that constitutional concern must prove the defendants acted with a heightened degree of culpability in publishing the injurious lies. Specifically, plaintiffs who are considered to be "public figures" must prove the defendant defamed them with "actual malice," a more demanding fault standard than the simple negligence standard that otherwise would apply to claims of defamation asserted by private figures. ⁸ In the present case, Salem contends the Awans had to prove it published the libels in Obstruction of Justice with actual malice because each of them was a "limited-purpose public figure," a term used to describe a person who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." ⁹ Alternatively, Salem argues that the Awans became "involuntary public figures," a term reserved for persons who are so central and well known with respect to a particular public controversy that they become public figures even if they do not desire or seek the public's attention. ¹⁰

The Awans were employed as IT support staff at the House of Representatives and had no involvement with the press prior to the government investigations. We conclude that the trial court properly found, on the evidence before it, that the Awans were not limited-purpose or involuntary public figures based either on their voluntary actions with respect to the public controversy surrounding them or their centrality and prominence with respect to that controversy. The trial court therefore did not err in rejecting Salem's special motion to dismiss the defamation count of the Awans’ complaint for lack of proof of actual malice.

Second, Salem argues that the trial court erred in denying its special motion to dismiss the Awans’ IIED claim. Such a claim requires a plaintiff to prove that the defendant engaged in "extreme and outrageous conduct" that "intentionally or recklessly" caused the plaintiff to suffer "severe emotional distress." ¹¹ We agree with Salem that, in accordance with the Anti-SLAPP Act, the court should have dismissed this claim for lack of sufficient evidence that Salem's publication of Obstruction of Justice amounted to "extreme and outrageous" conduct.

Lastly, the Awans’ unjust enrichment claim seeks disgorgement of the profits Salem earned through its defamatory publication of Obstruction of Justice . We agree with Salem that this equitable remedy is not available for the defamation alleged in this case. We therefore reverse the denial of Salem's special motion to dismiss the unjust enrichment count.

I. Background

Imran Awan was the first of appellees to work for the House of Representatives. While studying at Johns Hopkins University, he interned for an IT services firm that worked with House and Senate offices on Capitol Hill. He returned to the House to work as an IT professional in 2004 after graduation. Over time, Imran took on IT responsibilities for several House offices. When the amount of work increased, he trained his brothers Abid and Jamal Awan, his wife Tina Alvi, and his close family friend Rao Abbas, to join him as "shared" IT employees serving multiple House offices at the same time as a team. Their job responsibilities included setting up and servicing technology for House offices, liaising with home district offices to troubleshoot issues, and purchasing equipment. The Awans did not have public-facing roles, did not interact with the press or constituents, and did not set House policies.

In 2016, the Chief Administrative Officer and Sergeant at Arms for the House of Representatives began investigating equipment procurement irregularities in the Awans’ performance of their IT responsibilities. The investigation expanded after the Office of the Inspector General suspected that the Awans might have violated IT security requirements and House policies governing the use of "shared employees." The investigation eventually involved the United States Capitol Police and the Federal Bureau of Investigation.

On February 2, 2017, several media outlets broke the news that five unnamed IT employees for the House of Representatives were under investigation for procurement fraud and unauthorized access of House IT systems. Luke Rosiak reported on this story two days later, specifically naming several of the Awans as the subjects of the investigation, in an article published by The Daily Caller , a news media organization co-founded in 2010 by former Fox News television host Tucker Carlson. That article was the beginning of Rosiak's publication of a series of articles focusing on the investigation of appellees.

In July 2017, Capitol Police and FBI agents arrested Imran for making a misrepresentation on a home equity loan application. The charge was unrelated to the Awans’ work while employed at the House. Imran had listed a rental property as his wife's primary residence, when it was really a property they rented to other people, in order to secure a line of credit. Prosecutors also filed criminal charges against Alvi for the misrepresentation, but she was living in Pakistan at the time of Imran's arrest.

Press coverage of the investigations and Imran's arrest varied. The New York Times noted that "[f]or months, conservative news outlets have built a case against" the Awans. For example (as summarized in Washington Post and New York Times articles submitted by the parties), Sean Hannity and ...