D.C. High Court Upholds the District’s Anti-SLAPP Act, in Win for Home Rule

On November 13, the D.C. Court of Appeals, sitting en banc, issued a unanimous opinion in Banks v. Hoffman, holding that the D.C. Council did not exceed its authority by passing the Anti-SLAPP Act.¹ In so doing, the Court reversed a prior panel decision, which David Reiser analyzed for this blog,² and rendered a decision touching multiple hot-button legal topics, including D.C. Home Rule and lawsuits targeting expression protected by the First Amendment.

This piece breaks down the en banc decision in three parts.  Part 1 is a primer on D.C. Home Rule—which is central to the decision. Part 2 describes the concerns posed by “SLAPPs” (an acronym for strategic lawsuits against public participation); why the Council passed its Anti-SLAPP Act; and what the District’s Anti-SLAPP Act does. Part 3 puts those pieces together, discussing the reasons the Court gives in Banks for holding that the Council did not exceed its authority under Home Rule by passing the Anti-SLAPP Act.

1. The Home Rule Act and Its Limits

The United States Constitution vests Congress with plenary power to legislate for D.C.³ In 1973, Congress passed the Home Rule Act, granting D.C.’s inhabitants the “powers of local self-government”⁴ and delegating to D.C.’s government “certain legislative powers.”⁵ That delegation’s purpose was to “relieve Congress of the burden of legislating upon essentially local District matters.”⁶ And that delegation was broad, conferring the Council with legislative power over the District that resembles the power of a state legislature over a state, subject to specified exceptions.⁷

One such carveout—and the one at the center of Banks—precludes the Council from enacting “any act, resolution, or rule with respect to any provision of Title 11 [of the D.C. Code] (relating to organization and jurisdiction of the District of Columbia courts).”⁸ Thus the Council may not alter the structure, jurisdiction, or fundamental powers of the District’s judiciary.⁹ But to what extent the Council may otherwise modify the District’s judicial system is open to debate—and the key question that was before the Banks Court.

2. The D.C. Council’s Anti-SLAPP Act

Against this backdrop, the D.C. Council passed the Anti-SLAPP Act in 2010—the legislative move that arguably exceeded the Council’s authority under the Home Rule carveout discussed above.  “SLAPP” is a term used to describe meritless lawsuits “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.”¹⁰ The goal of such suits is to chill First Amendment-protected expression by miring the targeted speaker in protracted and costly litigation.¹¹ An illustration from today’s headlines is the suit brought by President Trump against the Wall Street Journal involving the paper’s publication of an article about a lewd birthday card drawn for Jeffrey Epstein—which the Journal has argued is a SLAPP intended to punish the Journal for its reporting and chill criticism of the President.¹² But SLAPPs are not a new phenomenon, and since the 1990s their prevalence has inspired dozens of state legislatures around the country, and the D.C. Council, to adopt anti-SLAPP laws that aim to curb these abusive suits and reduce the threat that they will chill free expression.¹³

D.C.’s Anti-SLAPP Act is akin to those enacted elsewhere and has three key features intended to curb SLAPPs.  First, it empowers defendants to file a “special motion to dismiss” and, if they 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,” it becomes the plaintiff’s burden to “demonstrate[] that the claim is likely to succeed on the merits” or suffer dismissal.¹⁴ That burden requires the plaintiff to “present evidence—not simply allegations” that would permit a properly instructed jury to find in the plaintiff’s favor on the merits.¹⁵ Second, the D.C. law provides that upon the filing of such a special dismissal motion, discovery must be stayed until that motion is resolved, unless it “appears likely that targeted discovery will enable the plaintiff to defeat the motion” and that discovery would not be “unduly burdensome,” in which case the court may order “specified discovery.”¹⁶ Third, the law provides that a party who succeeds on such a special motion to dismiss is generally entitled to attorneys’ fees—a presumption that can be overcome only when “special circumstances in the case make a fee award unjust.”¹⁷

3. The En Banc Decision in Banks

With this understanding of Home Rule and D.C.’s Anti-SLAPP Act, the legal issue at the heart of Banks comes into clearer view.  The Council has, through the Anti-SLAPP Act, modified the procedural rules that apply to the adjudication of certain claims (i.e., those deemed SLAPPs by the law). But the Council may not under the Home Rule Act enact “any act, resolution, or rule with respect to any provision of Title 11 [of the D.C. Code] (relating to organization and jurisdiction of the District of Columbia courts).” And heightening the tension, Title 11 mandates that the District’s Superior Court adhere to the Federal Rules of Civil Procedure (which do not contain any of the Anti-SLAPP mechanisms in D.C.’s law) unless D.C.’s courts duly modify those rules through a procedure not used here.  There was thus reason to think, at least at first blush, that the Council had exceeded its authority by enacting the Anti-SLAPP Act because that law was an enactment related to Title 11 that purported to modify the rules of procedure applicable in the District’s courts.

This legal question came to a head in Banks. In the late aughts, the American Psychological Association was publicly criticized for allowing psychologists to consult on national security investigations and, according to some, colluding with the United States government to support the torture of detainees.¹⁸ In response, the APA commissioned a law firm to independently review whether APA officials had colluded with government officials to support torture, resulting in the publication by the APA of a report critical of three retired military psychologists.¹⁹ The psychologists then sued the APA and the law firm that prepared the report for defamation.²⁰ When the APA and the law firm moved to dismiss the suit under the Anti-SLAPP Act, the psychologists argued that the law contravenes the Home Rule Act and is void. As David Reiser wrote in September 2023, the D.C. Court of Appeals initially accepted that argument in part, holding that certain aspects of the D.C. Anti-SLAPP Act exceeded the Council’s authority under Home Rule.²¹ But in January 2024, the Court agreed to rehear the case en banc.²²

Earlier this month, the Court gave us its (final) answer, reversing itself and holding that the Council did not exceed its authority by passing the Anti-SLAPP Act.²³ The Court reached that holding by broadly construing the Council’s authority to legislate for the District and narrowly construing the Home Rule Act’s limitation on the Council’s power to modify the judiciary’s handling of claims.

Reviewing the legislative history of the Home Rule Act, Title 11, and the Court’s precedents, the Court held that the Home Rule Act prevents the Council only from “directly amend[ing]” Title 11 or “otherwise alter[ing] the District’s courts’ structure, jurisdiction or fundamental powers”—and does not prevent the Council from enacting rules within those parameters that modify the adjudication of claims or create new procedural rules for litigants.²⁴ The Court further held that the Anti-SLAPP Act does not trespass those boundaries.  The Court supported this conclusion by reasoning that (i) it was undisputed that the Council may take far more drastic steps than those in the Anti-SLAPP Act, including extinguishing claims, shifting them outside the court system, and bestowing individuals with immunities from suit; and (ii) in the Court’s view, the Anti-SLAPP Act does not conflict with or displace the procedural rules otherwise operative in the District’s courts, so there is no conflict between the Anti-SLAPP Act and Title 11.²⁵

Big picture, the Court placed heavy weight on its view that Congress granted the Council sweeping power to legislate for the District, and the Court was unconvinced that the Home Rule Act’s limitation on laws that affect the District’s judiciary was meant to prevent the Council from enacting an anti-SLAPP law similar to those enacted by state legislatures across the country.

And yet there are reasons to question the Court’s unanimous decision. As a matter of the Home Rule Act’s plain text, it is difficult to see how the Anti-SLAPP Act is not an act “with respect to any provision of Title 11,” especially when Title 11 speaks expressly to the procedural rules applicable in the District’s courts and seemingly prevents the Council from requiring District courts to apply any rule inconsistent with the Federal Rules.  And there is also room to question the Court’s characterization that the D.C. anti-SLAPP rules do not conflict with the rules that otherwise control (the Federal Rules as modified by the District’s courts).²⁶ Requiring a plaintiff to put forth evidence before discovery or suffer dismissal appears on its face to prevent the Superior Court from “conducting its business according to the Federal Rules of Civil Procedure.”²⁷

Conclusion

Putting aside whether Banks was correctly decided, the upshot is that the Council’s Anti-SLAPP Act will remain enforceable in the District’s courts. But as David Reiser’s earlier article explained, there remain many legal and policy questions regarding anti-SLAPP laws, including to what extent they might apply in federal diversity cases (where federal “procedure” applies but state “substantive” law controls), and whether these laws serve their intended purpose or are part of a legal edifice that has made it too difficult to hold accountable those who cause harm by lying about others in the public sphere.²⁸ Notably, under current D.C. Circuit precedent the District’s anti-SLAPP law does not apply in federal diversity cases because, in that court’s view, the anti-SLAPP law impermissibly conflicts with the Federal Rules of Civil Procedure.²⁹

For now, practitioners on both sides of the “v” would do well to remember that the Anti-SLAPP Act continues to apply in the District’s courts. In this era of threats to D.C. Home Rule, however, Banks’s most important mark may be in the Court’s reaffirming (i) the Council’s broad authority under existing law to legislate for D.C. and (ii) that the limits on that authority must be narrowly construed so as not to defeat the Home Rule Act’s “overarching purpose of promoting self-governance.”³⁰

¹Banks v. Hoffman, No. 20-CV-0318, 2025 WL 3166324 (D.C. Nov. 13, 2025).

²David A. Reiser, The D.C. Court of Appeals Invalidates Part of the Anti-SLAPP Act, https://www.zuckerman.com/blog/dc-court-appeals-invalidates-part-anti-slapp-act/ (Sept. 19, 2023).

³Const., Art. I § 8, cl. 17; see also Palmore v. United States, 411 U.S. 389, 397 (1973).

⁴Banks, 2025 WL 3166324, at *2 (quoting D.C. Code § 1-201.02(a)).

⁵D.C. Code § 1-201.02(a).

⁶Id.

⁷Andrew v. Am. Import Ctr., 110 A.3d 626, 628–29 (D.C. 2015); D.C. Code § 1-203.02.

⁸D.C. Code § 1-206.02(a)(4).

⁹Banks, 2025 WL 3166324, at *5.

¹⁰Competitive Enterprise Institute v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (quoting Council of the District of Columbia, Report of Committee on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010)).

¹¹Banks, 2025 WL 3166324, at *5; Mann, 150 A.3d at 1226.

¹²Defendants’ Mot. to Dismiss at 20, Trump v. Dow Jones & Company, 1:25-cv-23232-DPG (S.D. Fl. Sept. 22, 2025), ECF No. 35.

¹³See Anti-SLAPP Legal Guide, Reps. Comm. for Freedom of the Press, www.rcfp.org/anti-slapp-legal-guide (last visited Nov. 25, 2025).

¹⁴D.C. Code § 16-5502(a)–(b).

¹⁵Mann, 150 A.3d at 1220–21.

¹⁶D.C. Code § 16-5502(c)

¹⁷Khan v. Orbis Business Intelligence Ltd., 292 A.3d 244, 252 (D.C. 2023); D.C. Code § 16-5504(a).

¹⁸Banks v. Hoffman, 301 A.3d 685, 693 (D.C. 2023).

¹⁹Id.

²⁰Id. at 690.

²¹David A. Reiser, The D.C. Court of Appeals Invalidates Part of the Anti-SLAPP Act, https://www.zuckerman.com/blog/dc-court-appeals-invalidates-part-anti-slapp-act/ (Sept. 19, 2023).

²²Banks v. Hoffman, 308 A.3d 201 (Mem.) (D.C. 2024).

²³Banks, 2025 WL 3166324, at *1.

²⁴Id. at *2–9.

²⁵Id. at *9–10.

²⁶Id.

²⁷Id. at 9 (alteration adopted) (quoting D.C. Code § 11-946).

²⁸Supra n.2.

²⁹Tah v. Global Witness Publishing, Inc., 991 F.3d 231, 238–39 (D.C. Cir. 2021).

³⁰Banks, 2025 WL 3166324,at *4.