Fairbanks v. Roller ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASSANDRA FAIRBANKS,
Plaintiff,
v. Case No. 1:17-cv-01052 (TNM)
EMMA ROLLER,
Defendant.
MEMORANDUM OPINION
Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of
herself and a fellow journalist in the White House press room making a gesture widely
recognized as the “okay” hand symbol but also speculated at the time to be a “white power”
symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, “just
two people doing a white power hand gesture in the White House.” Ms. Fairbanks sued Ms.
Roller for defamation. The First Amendment requires that Ms. Fairbanks’ claim be considered
“against the background of a profound national commitment” to the freedom of speech and
especially of political speech, which is “essential to the security of the Republic.” See New York
Times v. Sullivan, 376 U.S. 254, 269-70 (1964). This “fundamental principle of our
constitutional system” obligates Ms. Fairbanks, as a public figure, to support her defamation
claim by alleging facts that support a finding of actual malice on the part of Ms. Roller. See id.
at 269, 279-80. Because Ms. Fairbanks has failed to allege such facts, Ms. Roller’s Motion to
Dismiss under the Federal Rules of Civil Procedure will be granted. The District of Columbia’s
anti-SLAPP statute does not apply in federal court, so Ms. Roller’s Motion to Dismiss and
request for attorney’s fees under the anti-SLAPP statute will be denied.
I.
Ms. Fairbanks describes herself as a political activist and a grassroots journalist who uses
social media to reach the public. Am. Compl. 2, ¶ 4. She describes Ms. Roller as a gatekeeper
journalist with an esteemed professional reputation, though she also alleges that Ms. Roller
works for a click-bait news site that intentionally publishes fake news. Id. at 2-3. According to
Ms. Fairbanks, gatekeeper journalists like Ms. Roller consider themselves superior to grassroots
journalists. Id. at 2. At the same time, they fear that grassroots journalists threaten their role as
“[t]he primary gatekeepers of news.” Id. Because of their fear, Ms. Fairbanks alleges, some
gatekeeper journalists “wage a personal, political war on their ideological adversaries and
grassroots competitors.” Id. According to Ms. Fairbanks, this conflict intensified when
grassroots journalists received White House press passes. Id.
When Ms. Fairbanks received a White House press pass, she and a fellow “new media”
journalist posted a picture of themselves making the “okay” hand symbol in the White House
press room. Id. At the time, there was ongoing public debate about whether the alt-right
movement had turned the gesture into a hate symbol. Memo. ISO Mot. Dismiss 2-3 (citing news
articles about the “okay” hand symbol). 1 Ms. Roller retweeted Ms. Fairbanks’ photo, adding the
caption, “just two people doing a white power hand gesture in the White House.” Am. Compl.
¶ 6. She followed up with a second tweet, which stated “for reference,” provided a link to an
article on the Anti-Defamation League website, and contained a graphic of the “okay” symbol
1
On a motion to dismiss for failure to state a claim, a court may take judicial notice of
statements made on the internet when a party relies on them “not for their truth, but merely to
show that those statements were made.” Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29,
35 (D.D.C. 2012).
2
with the letters W and P traced over the fingers and the words “white power.”2 Ms. Roller then
published a third tweet, noting, “people in the alt-right vigorously deny it has anything to do with
white power, but keep using it to annoy the libtards.” 3
Roller’s tweets were read, retweeted, and referenced by a variety of “major news outlets,”
though not by any “serious publication in America.” Am. Compl. ¶¶ 8-9. Ms. Fairbanks
tweeted, “They’ve become so easy to troll that you don’t even have to make an effort anymore,” 4
and, “The outrage is cracking me up.” 5 Similarly, Ms. Fairbanks responded to a tweet that read,
“Please tell me you guys made the OK sign to troll off this fantastic lefty hysteria,” with an
emoji of a smiley face sticking out its tongue and winking. 6 But then Ms. Fairbanks sued Ms.
Roller, arguing that Ms. Roller’s first tweet defamed her. 7 Ms. Roller filed Motions to Dismiss
under the Federal Rules of Civil Procedure and the District of Columbia anti-SLAPP statute.
2
Emma Roller, Twitter (Apr. 28, 2017 8:07 PM), available at https://web.archive.org/web/
20170501041302/https://twitter.com/emmaroller/status/858155641684320256. The Anti-
Defamation League article discusses a two-handed gesture rather than the “okay” symbol. See
Am. Compl. ¶ 7. The Anti-Defamation League later published an article stating that the one-
handed “okay” symbol is not a hate symbol and calling the rumor a hoax. Am. Compl. 1-2, ¶ 10.
3
Emma Roller, Twitter (Apr. 28, 2017 8:17 PM), available at https://web.archive.org/web/
20170501041302/https://twitter.com/emmaroller/status/858155641684320256.
4
Cassandra Fairbanks, Twitter (Apr. 29, 2017, 8:34 AM), https://twitter.com/CassandraRules/
status/858343836761956352.
5
Cassandra Fairbanks, Twitter (Apr. 29, 2017 9:26 AM), available at http://archive.is/HDzMD.
6
Cassandra Fairbanks, Twitter (Apr. 29, 2017, 8:47 AM), https://twitter.com/CassandraRules/
status/858346964513107968.
7
Ms. Fairbanks’ Amended Complaint does not argue that the other tweets defamed her, so my
analysis is focused on Ms. Roller’s first tweet.
3
II.
“[T]he Supreme Court has directed courts to expeditiously weed out unmeritorious
defamation suits.” Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017).
Early resolution of defamation cases under Federal Rule of Civil Procedure 12(b)(6) “not only
protects against the costs of meritless litigation, but provides assurance to those exercising their
First Amendment rights that doing so will not needlessly become prohibitively expensive.”
Palin v. New York Times Co., 264 F. Supp. 3d 527, 533 (S.D.N.Y. 2017).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility
requires that a complaint raise “more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleading facts that are “merely
consistent with” a defendant’s liability “stops short of the line between possibility and
plausibility.” Twombly, 550 U.S. at 545-46. Thus, a court evaluating a motion to dismiss for
failure to state a claim does not accept the truth of legal conclusions or “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at
678. That said, it construes the complaint in the light most favorable to the plaintiff and accepts
as true all reasonable inferences drawn from well-pled factual allegations. See In re United Mine
Workers of Am. Emp. Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). Consideration
is limited to “the facts alleged in the complaint, any documents either attached to or incorporated
in the complaint and matters of which [the court] may take judicial notice.” Hurd v. D.C. Gov’t,
864 F.3d 671, 678 (D.C. Cir. 2017).
4
III.
Under District of Columbia law, a defamation claim requires: (1) a false and defamatory
statement; (2) published without privilege to a third party; (3) made with the requisite fault; and
(4) damages. See Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001). Ms. Roller’s
motions argue that Ms. Fairbanks has not pled facts to support findings of falsity and fault.
Ms. Fairbanks concedes that she is a public figure. See Pl.’s Opp. to Mot. Dismiss 4 (reciting
standard for public figures), 10-12 (applying standard for public figures). Under First
Amendment law, this means that she bears a heightened burden on both these elements. Liberty
Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1292 (D.C. Cir. 1988).
A.
The First Amendment requires public figures suing in defamation to “demonstrate by at
least a fair preponderance of the evidence that the [allegedly] defamatory statement is false,”
with close cases decided against them. Liberty Lobby, 838 F.2d at 1292. Although the First
Amendment permits liability for false factual statements under some circumstances, “a statement
of opinion relating to matters of public concern which does not contain a provably false factual
connotation will receive full constitutional protection.” Milkovich v. Lorain Journal Co., 497
U.S. 1, 20 (1990). Pure statements of opinion can never support liability because “[u]nder the
First Amendment there is no such thing as a false idea.” Gertz v. Robert Welch, Inc., 418 U.S.
323, 339 (1974).
Courts in this jurisdiction consider four factors to determine whether a defendant has
stated a fact or an opinion. Ollman v. Evans, 750 F.3d 970, 979 (D.C. Cir. 1984). First, courts
evaluate whether a defendant’s statement “has a precise core of meaning for which a consensus
of understanding exists or, conversely, whether the statement is indefinite and ambiguous” and
5
thus less likely to carry specific factual connotations. Id. Second, courts evaluate whether the
statement can be “objectively characterized as true or false” or instead “lacks a plausible method
of verification.” Id. Third, courts evaluate any unchallenged language that provides context for
the challenged statement—for example, the uncontested portions of an article or column—to
determine whether the context would influence an average reader’s perception that the
challenged statement has factual content. Id. Fourth, courts evaluate the broader context,
including social conventions surrounding different types of writing, to determine whether this
context signals that a statement concerns fact or opinion. Id.
Ms. Roller argues that all four Ollman factors show she stated an opinion, not a purported
fact, when she tweeted that Ms. Fairbanks made “a white power hand gesture in the White
House.” Memo. ISO Mot. Dismiss 8-18. First, she argues that her interpretation of the “okay”
hand symbol is “indefinite and ambiguous” because the gesture itself means different things in
different contexts—sometimes showing agreement, sometimes showing safety, and sometimes
showing disagreement, if used sarcastically. Id. at 9-12. Second, she argues that her statement is
not falsifiable because “white power” is a loosely defined political charge with no concrete and
objectively verifiable meaning, much like charges of racism or fascism, which courts have found
inactionable. Id. at 12-14. Third, she argues that readers would not infer any false facts from her
statement because it appears in the context of other tweets that state the true factual bases for her
interpretation of the gesture. Id. at 14-16. Fourth, she argues that the social conventions
surrounding political disagreements and off-the-cuff statements on Twitter made readers unlikely
to interpret her statement as factual. Id. at 16-18.
But the Ollman factors do not point in Ms. Roller’s favor as strongly as she suggests.
Ms. Roller’s argument about the first Ollman factor depends on the mistaken assumption that it
6
is impossible to make a clear statement about an ambiguous gesture.8 A simple illustration
shows the flaw in this logic: People wave in greeting and in parting, but the ambiguity of the
gesture does not make the sentence “she waved goodbye” ambiguous or indefinite. Ms. Roller’s
argument about the second Ollman factor relies almost entirely on analogies to statements in
other cases about plaintiffs’ views or attitudes but does not address the fact that views and
attitudes are subjective realities while physical gestures are objective realities. 9 Her argument
about the third Ollman factor suggests that readers would not infer false facts from her tweet but
does not address whether her tweet makes a false factual statement directly. And her argument
about the fourth Ollman factor notes that society generally has low expectations of political
debates on Twitter but does not address society’s expectations of journalistic conduct on Twitter.
One can imagine situations in which a defendant’s characterization of a plaintiff’s gesture
would be arguably defamatory. For example, a defendant might claim that the plaintiff “flipped
me off” when the evidence showed the plaintiff actually gave a thumbs-up, or a defendant might
claim that the plaintiff performed the Nazi salute when the plaintiff merely waved hello. These
demonstrably false factual statements would differ from related, but protected, statements of
8
Ms. Roller cites McCaskill v. Gallaudet University for the proposition that where “different
constituencies can hold different—and completely plausible—views of Plaintiff’s actions,
statements characterizing those actions constitute protected opinion.” 36 F. Supp. 3d 145, 159
(D.D.C. 2014). But Ms. Roller herself notes that this rule pertains to a statement’s verifiability,
not to its clarity. Memo. ISO Mot. Dismiss 10. And McCaskill addressed the verifiability of
plausible characterizations. Here, Ms. Roller’s argument about the gesture’s ambiguity declines
to address plausibility, expressly “setting aside whether it has a political meaning.” Id. at 10.
9
Ms. Roller draws this distinction herself, asking me not to treat her statement about
Ms. Fairbanks’ gesture as a statement about her personal beliefs. Id. at 13. But neither party has
briefed the issue well, and Ms. Roller’s interpretation of the gesture’s meaning involves at least
somewhat more subjectivity than a simple description of the physical gesture. The only case that
the parties cite for its treatment of a statement characterizing a Plaintiff’s conduct is McCaskill, a
district court decision holding that a plausible characterization of ambiguous conduct was not
falsifiable. See McCaskill, 36 F. Supp. 3d at 159.
7
opinion such as, “She is a vulgar person,” or “He is a Nazi-lover.” Cf. Buckley v. Littell, 539
F.2d 882, 893-94 (2d Cir. 1976) (distinguishing the factual allegation that a plaintiff was a
member of the Communist Party from the statement of opinion that plaintiff is “a fellow traveler
of fascism”); Smith v. Sch. Dist. of Phila., 112 F. Supp. 2d 417, 429 (E.D. Pa. 2000) (holding that
general accusations of being “racist and anti-Semitic” state opinion and not fact). While the
allegation that Ms. Fairbanks displayed a “white power gesture” is arguably more ambiguous
than an allegation that the plaintiff flipped someone off or performed the Nazi salute, this
ambiguity is not clearly fatal to her suit against Ms. Roller.
“While courts [of different jurisdictions] are divided in their methods of distinguishing
between assertions of fact and expressions of opinion, they are universally agreed that the task is
a difficult one.” Ollman, 750 F.2d at 978. “Where the question of truth or falsity is a close one,
a court should err on the side of nonactionability.” Liberty Lobby, 838 F.2d at 1292. But since
actual malice presents a clearer question and requires dismissal of the case, I need not decide
whether Ms. Roller’s tweet constitutes a protected statement of opinion.
B.
The First Amendment requires public figures suing in defamation to establish by clear
and convincing evidence that the defendant’s fault rises to the level of “actual malice.” Liberty
Lobby, 838 F.2d at 1292. That is, public figures must establish that the defendant made the
allegedly defamatory statement “with knowledge that it was false or with reckless disregard of
whether it was false or not.” Sullivan, 376 U.S. at 280. Because free debate inevitably leads to
some mistaken statements and punishment of these statements would chill the freedom of
speech, reckless disregard requires a “high degree of awareness of . . . probable falsity.”
Garrison v. La., 379 U.S. 64, 74 (1964). “The actual malice inquiry focuses on the defendant’s
8
state of mind at the time of publication.” Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106, 118
(D.C. Cir. 2017).
Ms. Fairbanks seeks to prove actual malice in four ways. First, she alleges that Ms.
Roller knew the “okay” symbol is not a white power gesture. Pl.’s Opp. to Mot. Dismiss 11.
Second, she alleges that Ms. Roller failed to perform due diligence consistent with professional
standards of journalism. Id. Third, she alleges that Ms. Roller, as a gatekeeper journalist, has a
motive to smear Ms. Fairbanks’ reputation as a competing grassroots journalist and “continues a
campaign of smears.” Id. at 11-12; see also Am. Compl. 2. Fourth, she argues that Ms. Roller’s
“failure to issue a single correction or retraction” suggests her recklessness about truth. Pl.’s
Opp. to Mot. Dismiss 11; but see Am. Compl. ¶ 17 (implying that Ms. Roller deleted her tweet);
Compl. 2 (alleging that Ms. Roller deleted her tweet before learning of this lawsuit).
None of these arguments comes close to satisfying the First Amendment’s demanding
standard for public figures bringing defamation actions. Ms. Fairbanks’ first argument fails
because she has not pled facts sufficient to support her conclusory allegation that Ms. Roller
knew the falsity of her statement.10 Her second and third arguments fail because, even “an
extreme departure from professional standards” coupled with an illicit motive does not satisfy
the actual malice standard. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 665
(1989); see also Parsi v. Daioleslam, 890 F. Supp. 2d 77, 81 (D.D.C. 2012) (“Subjective ill-will
10
Ms. Fairbanks alleges, “Roller knew at the time of her publishing that Fairbanks was a long-
time civil rights writer, journalist, and advocate, who backed Donald Trump’s candidacy for the
Presidency only also after protesting civil rights violations against a wide range of citizens,
including women and African-Americans, and after Fairbanks had previously backed Bernie
Sanders’s presidential bid. Roller knew Fairbanks was not using ‘white power’ signals before
she published her false stories on April 28, 2017.” Am. Compl. ¶ 11. But the second sentence is
conclusory and the first fails to provide a “clear and convincing” basis for finding that Ms. Roller
knew the “okay” gesture does not symbolize white power. See Liberty Lobby, 838 F.2d at 1292.
9
does not establish actual malice, nor does a malevolent motive for publication. Even highly
unreasonable conduct constituting an extreme departure from the standards of investigation and
reporting ordinarily adhered to by responsible publishers does not establish actual malice.”)
(internal citation omitted). And her fourth argument fails because Ms. Roller’s failure to correct
her statement does not show that she had actual malice when she published it. See Kahl, 856
F.3d at 118 (requiring evidence of actual malice at the time of publication); see also Lohrenz v.
Donnelly, 223 F. Supp. 2d 25, 56 (D.D.C. 2002) (“[T]here is no duty to retract or correct a
publication . . . .”). Especially given the public debate about the “okay” hand gesture at the time
of Ms. Roller’s tweet, Ms. Fairbanks’ allegations do not provide clear and convincing evidence
of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and
tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and
hand gesture to provoke, or troll, people like Ms. Roller—whether because the gesture was
actually offensive or because they would think that it was offensive—not that Ms. Fairbanks was
the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a
claim and her case should be dismissed.
C.
Dismissing the Amended Complaint for failure to state a claim does not moot
Ms. Roller’s anti-SLAPP motion since the motion seeks attorneys’ fees in addition to dismissal.
The District of Columbia’s anti-SLAPP statute seeks to protect people from “Strategic Lawsuits
Against Public Participation” or SLAPPs—that is, from illegitimate lawsuits designed to
discourage free speech on issues of public interest. See Abbas v. Foreign Policy Grp., 783 F.3d
1328, 1332 (D.C. Cir. 2015). Among other things, the statute establishes a mechanism for early
dismissal of SLAPPs and enables defendants who win dismissal under the statute to recover their
attorneys’ fees. D.C. Code §§ 16-5502(a)-(b), 16-5504(a). But Ms. Fairbanks argues that the
10
anti-SLAPP statute does not properly apply in federal courts exercising diversity jurisdiction
over local law claims.
A federal court sitting in diversity generally applies local substantive law and federal
procedural rules. Hanna v. Plumer, 380 U.S. 460, 465 (1965) (citing Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938)). If local substantive law and the Federal Rules of Civil Procedure answer
the same question in different ways, the Federal Rules of Civil Procedure control unless they
exceed the authorization of the Rules Enabling Act. Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 559 U.S. 393, 398-99 (2010). The United States Court of Appeals for the
District of Columbia Circuit has already determined under this framework that “[a] federal court
exercising diversity jurisdiction . . . must apply Federal Rules 12 and 56 instead of the D.C. Anti-
SLAPP Act’s special motion to dismiss provision.” Abbas, 783 F.3d at 1337. And it has
determined that this holding prevents an award of attorneys’ fees under the anti-SLAPP statute
since the relevant provision requires a defendant to invoke the special motion to dismiss
provision successfully. See id. at 1337 n.5 (citing D.C. Code § 16-5504(a)).
Ms. Roller argues that the District of Columbia Court of Appeals’ subsequent decision in
Competitive Enterprise Institute v. Mann, 150 A.3d 1213 (D.C. 2016), supersedes Abbas. She
notes that Mann clarified two facts about the District’s anti-SLAPP statute that differ from the
understanding in Abbas. Memo. ISO Anti-SLAPP Mot. 5. First, Mann held that the anti-SLAPP
statute creates substantive rights. Mann, 150 A.3d at 1226. Second, it held that the statute’s
“likely to succeed” standard of proof for special motions to dismiss mirrors the summary
judgment standard of proof under Federal Rule of Civil Procedure 56. Id. at 1238 n.32.
Mann’s articulation of District law—and not Abbas’s interpretation of it—controls. See
Payne v. D.C. Gov., 722 F.3d 345, 353 (D.C. Cir. 2013) (noting that District of Columbia Court
11
of Appeals decisions provide binding interpretations of District law). But I am also bound to
follow Abbas as the law of the Circuit unless Mann “clearly and unmistakably” resolves the
question at issue. See Easaw v. Newport, 253 F. Supp. 3d 22, 34 (D.D.C. 2017). Two of my
colleagues have already determined that Abbas remains binding after Mann. See Libre by Nexus
v. Buzzfeed, Inc., 2018 WL 2248420 at *9 (D.D.C. May 16, 2018); Deripaska v. Associated
Press, 2017 WL 8896059 at *3 (D.D.C. Oct. 17, 2017). Indeed, I am not aware that any judge in
this District has awarded attorneys’ fees under the anti-SLAPP statute since Mann.
Because Abbas’s application of the Shady Grove framework does not depend on either of
the points that Mann later clarified, I join my colleagues in concluding that Abbas controls. The
reasoning in Abbas begins with the observation that the anti-SLAPP statute and 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.” Abbas, 783 F.3d at 1333-34. Mann does nothing to
disturb this understanding of District law.
Abbas goes on to observe that the anti-SLAPP statute and the Federal Rules of Civil
Procedure answer the same question in different ways: “[U]nlike 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.” Id. at 1334. And Mann confirms this conclusion. As Ms. Roller
notes, Mann clarifies that the anti-SLAPP statute’s “likelihood of success on the merits” standard
mirrors the Rule 56 summary judgment standard, requiring that “the evidence suffices to permit
a jury to find for the plaintiff.” 11 Mann, 150 A.3d at 1238 n.32. But like a mirror, the anti-
SLAPP statute reverses the image that it reflects: Mann agrees with Abbas that the statute differs
11
Ms. Roller’s other observation—that Mann clarified the substantive nature of the anti-SLAPP
statute—confirms that the Shady Grove framework applies and does not alter how. See Memo.
ISO Anti-SLAPP Mot. 5.
12
from Rule 56 by requiring the plaintiff to show a likelihood of success on the merits instead of
placing the burden on the defendant. Id. And Mann adds that the statute’s dismissal standard
differs from Rule 12 by requiring the plaintiff to produce evidence rather than allowing the
plaintiff to rely on the allegations in her complaint. Id. at 1233; see also Libre by Nexus, 2018
WL 2248420 at *9. In short, Mann does not align the District’s anti-SLAPP statute with the
Federal Rules. Instead, it expressly states that the statute “is not redundant relative to the rules of
civil procedure.” Mann, 150 A.3d at 1238.
The final question that Abbas addressed under the Shady Grove framework is whether
Federal Rules of Civil Procedure 12 and 56 exceed the authorization of the Rules Enabling Act.
See Shady Grove, 559 U.S. at 398. Abbas held that Rules 12 and 56 do not. Abbas, 783 F.3d
1336-37. As a local court, Mann had no occasion to explore the validity of the Federal Rules.
Thus, Mann does not undermine Abbas in this respect either.
According to Ms. Roller, “Mann could not have spoken more ‘clearly and unmistakably’
to . . . whether the standards imposed by [the anti-SLAPP statute] are the same or different than
those imposed by the Federal Rules of Civil Procedure.” Memo. ISO Anti-SLAPP Mot. 5. I
believe it “clearly and unmistakably” confirms Abbas’s determination that they differ. In any
event, it does not show that the anti-SLAPP statute should apply in federal court. So I am bound
by the law of the Circuit and must dismiss Ms. Roller’s anti-SLAPP motion.
IV.
Some countries criminalize gestures that others may take as racist or hateful. See, e.g.,
Strafgesetzbuch (StGB) (Penal Code), § 130, http://www.gesetze-im-internet.de/
englisch_stgb/englisch_stgb.html#p0080 (German law criminalizing incitement to hatred against
certain groups, which has been used to prosecute individuals who perform the Nazi salute); Code
13