When last we checked in on evil Washington Redskins owner Daniel Snyder’s assault-with-a-deadly-lawsuit against Washington City Paper, WCP had filed a motion to dismiss Snyder’s case, which alleges that Dave McKenna’s brilliant polemic, “The Cranky Redskins Fan’s Guide to Dan Snyder,” defamed him. Snyder’s suit, the paper argued, conflicts with a Washington, D.C., law that bans “Strategic Lawsuits Against Public Participation.” Which is to say, lawsuits that are designed not to settle legal disputes but to bully less-wealthy actors into declining to utilize their right to free speech. Which is to say, lawsuits exactly like Snyder’s, which, in its original iteration, was referred to by Snyder’s general counsel thusly: “We presume that defending such litigation would not be a rational strategy … Indeed, the cost of the litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (Want to help? The WCP’s Legal Defense Fund is here. Oh, and no, to my knowledge the Simon Wiesenthal Center has still not retracted its insane accusation that the above image is anti-Semitic.)
The nation’s top First Amendment attorney, Floyd Abrams, is already on Team WCP. And now, thanks to a friend-of-the-court brief filed by the American Civil Liberties Union, so are the American Society of Newspaper Editors, the Society of Professional Journalists, National Public Radio, the publishers of The Atlantic and Politico, and several other groups. The brief itself is a mini-masterpiece. Noting that, under the District’s law, “The only issue in this case requiring more than cursory analysis is whether the plaintiff can show that he is likely to succeed on the merits,” it argues, “the facts on the public record suggest that he is as likely to prevail on the merits here as Voldemort is to prevail over Harry Potter in their final battle.” (Spoiler alert: Voldemort loses.)
The reasons have to do with those good old First Amendment protections. See, as a public figure—which even Snyder cedes he is—Snyder must prove that the WCP article’s statements were not only false but made with knowledge of their falseness or at least extreme tenuousness. And in fact, if you read the article as any ordinary person would, they are true! As the ACLU puts it, “If a headline said, ‘MURDOCH HACKED CELL PHONES OF YOUNG MURDER VICTIM AND BRITISH TROOPS KILLED IN AFGHANISTAN,’ no sensible reader would visualize Rupert Murdoch sitting at a keyboard with earphones on his head, typing computer code.”
The ACLU’s brief is nearly perfect. Nearly. “Absent exceptionally dramatic and unexpected revelations by the plaintiff,” it concludes, “his ability to demonstrate a likelihood of prevailing on the merits appears to be of the same order of magnitude as the likelihood of the Redskins winning this year’s Super Bowl.” Dudes. Not cool.
Marc Tracy is a staff writer at The New Republic, and was previously a staff writer at Tablet. He tweets @marcatracy.