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16-CV-458 (Lead)
16-CV-459, 16-CV-500 (Consolidated)
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-CV-458
Lead
RUBY NICDAO, Appellant,
v.
TWO RIVERS PUBLIC CHARTER SCHOOL,
INCORPORATED, ET AL., Appellee.
No. 16-CV-459
Consolidated
LARRY CIRIGNANO, Appellant,
v.
TWO RIVERS PUBLIC CHARTER SCHOOL,
INCORPORATED, ET AL., Appellee.
No. 16-CV-500
Consolidated
JONATHAN DARNEL, Appellant,
v.
TWO RIVERS PUBLIC CHARTER SCHOOL,
INCORPORATED, ET AL., Appellee.
Appeal from the Superior Court of the District of Columbia
Civil Action No. 2015 CA 009512 B
REPLY BRIEF OF APPELLANT LARRY CIRIGNANO
Mathew D. Staver*
Horatio G. Mihet
Roger K. Gannam
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
(407) 875-1776
(407) 875-0770 FAX
Attorneys for Appellant Larry Cirignano
Clerk of the CourtReceived 08/21/2019 05:30 PM Filed 08/21/2019 05:30 PM
i
LIST OF PARTIES, AMICI, AND COUNSEL
1. Two Rivers Public Charter School, Plaintiff
2. Two Rivers Board of Trustees, Plaintiff
3. Michael L. Murphy, Counsel for Plaintiff
4. Cary Joshi, Counsel for Plaintiff
5. Ora N. Nwabueze, Counsel for Plaintiff
6. Benjamin L. Bailey, Counsel for Plaintiff
7. Bailey Glasser LLP, Counsel for Plaintiff
8. Robert Weiler, Jr., Defendant
9. Jonathan Darnel, Defendant
10. John Garza, Counsel for Defendant Darnel
11. Garza Law Firm, P.A., Counsel for Defendant Darnel
12. Lauren Handy, Defendant
13. Ruby Nicdao, Defendant
14. Alexander C. Vincent, Counsel for Defendant Nicdao
15. Thomas Brejcha, Counsel for Defendant Nicdao
16. Stephen M. Crampton, Counsel for Defendant Nicdao
17. Michael J. DePrimo, Counsel for Defendant Nicdao
18. Shulman, Rogers, Gandal, Pordy & Ecker, P.A.,
Counsel for Defendant Nicdao
19. Thomas More Society, Counsel for Defendant Nicdao
20. Larry Cirignano, Defendant
21. Mathew D. Staver, Counsel for Defendant Cirignano
22. Horatio G Mihet, Counsel for Defendant Cirignano
23. Roger K. Gannam, Counsel for Defendant Cirignano
ii
TABLE OF CONTENTS
LIST OF PARTIES, AMICI, AND COUNSEL ........................................................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iv
INTRODUCTION ..................................................................................................... 1
LEGAL ARGUMENT ............................................................................................... 1
I. TWO RIVERS CANNOT SATISFY ITS BURDEN TO
DEMONSTRATE WITH EVIDENCE, NOT MERELY
ALLEGATIONS, THAT IT IS LIKELY TO SUCCEED ON THE
MERITS. .......................................................................................................... 1
A. Two Rivers Does Not Have Standing to Bring Its Claims Against
Cirignano. .............................................................................................. 1
1. This Court Must Make a Threshold Standing Determination
Despite Two Rivers’ Efforts to Evade Scrutiny. ........................ 1
2. Two Rivers Must Travel on the Complaint It Filed, Which
Does Not Allege Injury to Two Rivers as an Entity. .................. 3
3. Two Rivers Cannot Ignore That It Has No Members for
Whom to Bring a Claim. ............................................................. 4
4. Two Rivers Waived Hindrance by Not Raising It Below. ......... 5
5. Even If Not Waived, No Cognizable Financial Hardship or
Privacy Hindrance Exists. ........................................................... 6
B. Two Rivers Cannot Succeed on Its Claim for Intentional Infliction
of Emotional Distress Against Cirignano Because the Record
Shows and Two Rivers Admits Cirignano’s Protected Speech Was
on a Broad Issue of Public Interest........................................................ 8
1. Cirignano’s Speech on the Broad Public Issue of Abortion Is
Entitled to Special First Amendment Protection. ....................... 9
2. The Overall Context, Content, and Form of Cirignano’s
Protected Speech Was Directed Towards the Broad Public
Issue of Abortion. ......................................................................10
3. Two Rivers Did Not and Cannot Show Cirignano Targeted
Students. ....................................................................................13
iii
4. Two Rivers Makes No Attempt to Show Cirignano’s Lone
Act of Peaceful Sign-Holding Was so Outrageous and
Extreme as to Go Beyond All Bounds of Decency or Was
Utterly Intolerable. ....................................................................14
C. Two Rivers Is Required to Bring Evidence, Not Mere Allegations
of a Conspiracy, and It Did Neither. ...................................................15
D. Two Rivers Ignores That Private Nuisance Is Not a Separate Tort
in This Jurisdiction. .............................................................................18
E. Cirignano’s Lone Act of Peaceful Expression in a Public Forum
Could Not, as a Matter of Law, Constitute an Actionable Private
Nuisance. .............................................................................................18
II. TWO RIVERS’ ATTEMPT TO EXPAND THE RECORD ON APPEAL
IS IMPERMISSIBLE AS A MATTER OF LAW AND DOES NOT
CHANGE THE FACT THAT CIRIGNANO’S PROTECTED SPEECH
CANNOT SERVE AS A BASIS FOR TWO RIVERS’ MERITLESS
CLAIMS. .......................................................................................................19
CONCLUSION ........................................................................................................20
CERTIFICATE OF SERVICE ................................................................................21
iv
TABLE OF AUTHORITIES
CASES
Airline Pilots Ass’n v. Twin City Fire Ins. Co., 803 A.2d 1001 (D.C. 2002) ............ 4
Am. Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38 ((D.D.C. 1998) .......... 5
Atracqchi v. GUMC Unified Billing Servs., 788 A.2d 559 (D.C. 2002) ................. 17
Cohen v. California, 403 U.S. 15 (1971) .............................................................. 9,10
Competitive Enter. Inst. v. Mann, 150 A.3d 1213 (D.C. 2016) .......................... 16,17
Crockett v. D.C., 95 A.3d 601 (D.C. 2014) ............................................................... 2
D.C. v. Beretta, 872 A.2d 633 (D.C. 2005) ............................................................. 18
D.C. v. ExxonMobile Oil Co., 172 A.3d 412 (D.C. 2017) ......................................... 2
D.C. v. Fowler, 497 A.2d 456 (D.C. 1985) ............................................................. 18
D.C. v. Patterson, 667 A.2d 1338 (D.C. 1995) ....................................................... 20
D.C. Transit Sys., Inc. v. Milton, 250 A.2d 549 (D.C. 1969) .................................. 20
Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799 (D.C. 1999) ...................... 17
Friends of Tilden Park, Inc. v. D.C., 806 A.2d 1201 (D.C. 2002) ......................... 2,4
Grayson v. AT&T Corp., 15 A.3d 219 (D.C. 2011) .................................................. 2
Griva v. Davison, 637 A.2d 830 (D.C. 1994) ..................................................... 16,17
Hercules & Co., Ltd. v. Sham Rest. Corp., 613 A.2d 916 (D.C. 1992) ................... 18
Hollingsworth v. Perry, 570 U.S. 693 (2013) ............................................................ 2
Hunter v. United States, 606 A.2d 129 (D.C. 1992) .................................................. 5
Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968)................................ 10
Kowolski v. Tesmer, 543 U.S. 125 (2004) .............................................................. 6,7
v
Madden v. D.C. Transit Sys., Inc., 307 A.2d 756 (D.C. 1973) ................................ 17
Mental Hygiene Legal Serv. v Cuomo, 13 F. Supp. 3d 289 (S.D.N.Y. 2014) ........... 8
Ortberg v. Goldman Sachs Grp., 64 A.3d 158 (D.C. 2013) .......................... 14,15,19
Passou v. D.C., 77 A.3d 383 (D.C. 2013) ................................................................. 2
Poola v. Howard Univ., 147 A.3d 267 (D.C. 2016) ................................................ 15
Powers v. Ohio, 499 U.S. 400 (1981) ..................................................................... 6,7
Reese v. Wells, 73 A.2d 899 (D.C. 1950) ................................................................ 19
Reno v. ACLU, 521 U.S. 844 (1997) ....................................................................... 10
Snyder v. Phelps, 562 U.S. 443 (2011) .................................... 8,9,10,11,12,13,14,15
Thornton v. Norwest Bank of Min., 860 A.2d 838 (D.C. 2004) ................................ 5
Town Crier, Inc. v. Hume, 721 F. Supp. 99 (E.D. Va. 1989) .................................... 4
Weishapl v. Sowers, 771 A.2d 1014 (D.C. 2001) ............................................... 16,17
Wood v. Neuman, 979 A.2d 64 (D.C. 2009) ............................................................ 19
STATUTES
D.C. Sup. Ct. Rule 5.2................................................................................................ 7
D.C. Sup. Ct. Rule 12............................................................................................... 17
1
INTRODUCTION
In its effort to save its meritless claims against Defendant–Appellant Larry
Cirignano, Plaintiff–Appellee Two Rivers Public Charter School argues from
allegations it did not plead, ignores its burden of proof under the Anti-SLAPP Act,
attempts to bypass the essential elements of its claims, and ignores this Court’s
binding precedents. Two Rivers compounds its futility with evidentiary assertions
from a record not properly before this Court. The Court should reverse the Superior
Court and dismiss with prejudice Two Rivers’ meritless claims against Cirignano.
LEGAL ARGUMENT
I. TWO RIVERS CANNOT SATISFY ITS BURDEN TO
DEMONSTRATE WITH EVIDENCE, NOT MERELY
ALLEGATIONS, THAT IT IS LIKELY TO SUCCEED ON THE
MERITS.
A. Two Rivers Does Not Have Standing to Bring Its Claims
Against Cirignano.
1. This Court Must Make a Threshold Standing
Determination Despite Two Rivers’ Efforts to
Evade Scrutiny.
Two Rivers claims this Court has no jurisdiction to address questions of
standing because it was not part of Cirignano’s Special Motion to Dismiss under the
Anti-SLAPP Act. (Cons. Br. Two Rivers Public Charter Sch. (“Cons. Br.”) 8–9.)
This contention is plainly erroneous. First, Cirignano’s Memorandum of Points and
Authorities in Support of his Special Motion to Dismiss, filed February 1, 2016,
expressly raises Two Rivers’ lack of standing as a reason Two Rivers cannot succeed
2
on the merits. (Mem. Pts. Authorities1 4.) Second, “[s]tanding is a threshold
jurisdictional question which must be addressed prior to and independent of
the merits of a party’s claim.” Grayson v. AT&T Corp., 15 A.3d 219, 229 (D.C.
2011) (emphasis added); D.C. v. ExxonMobile Oil Co., 172 A.3d 412, 419 (D.C.
2017) (standing is a “threshold jurisdictional question” that a plaintiff cannot avoid
and must satisfy in all matters). As this Court has acknowledged, the standing
inquiry in this Court is identical to that of the Article III federal courts. See, e.g.,
Passou v. D.C., 77 A.3d 383, 389 n.6 (D.C. 2013); Friends of Tilden Park, Inc. v.
D.C., 806 A.2d 1201, 1206 (D.C. 2002).
Because the standing inquiry mirrors that in federal courts, all plaintiffs—
including Two Rivers here—must be able to demonstrate standing at all stages of
litigation. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) (“Article III
demands that an actual controversy persist throughout all stages of litigation. . . .
That means that standing must be met by persons seeking appellate review just as
it must be met by persons appearing in courts of first instance.”). This Court, too,
has demanded that a plaintiff demonstrate standing throughout the entire litigation
process, including on appeal, because it is a threshold jurisdictional inquiry. See
Crockett v. D.C., 95 A.3d 601, 604 (D.C. 2014).
1 See App. 004 (“Additional eFiling Document to . . . Cirignano’s Special
Motion to Dismiss . . . .”).
3
Thus, because standing is a threshold jurisdictional question and represents an
“irreducible constitutional minimum” that all plaintiffs must satisfy, Pasou, 77 A.3d
at 389, Two Rivers cannot escape the constitutional prerequisite to demonstrate
standing throughout the litigation. Its contentions to the contrary are meritless.
2. Two Rivers Must Travel on the Complaint It
Filed, Which Does Not Allege Injury to Two
Rivers as an Entity.
For the first time in this litigation, Two Rivers contends that it is bringing its
claims against Cirignano in its own capacity, not representatively. (Cons. Br. 9–10.)
The Superior Court likewise indicated Two Rivers has standing in its own right.
(Cons. Br. 10 (citing App. 92).) Both Two Rivers and the Superior Court, however,
ignored the fundamental inquiry concerning standing, and their conclusions are
erroneous. Two Rivers did not allege any injury to itself, as an entity. Indeed, every
one of its claims purportedly arises from injuries allegedly sustained by its students.
The actual allegations of Two Rivers’ Complaint specify Two Rivers is pursing the
claims of third parties (Two Rivers students) and not its own claims. Two Rivers
begins by alleging it seeks “to protect the well-being of students at Two Rivers” as
purportedly “responsible for the safety and emotional well-being of the students.”
(App. 112.) Every purported injury Two Rivers alleges in its Complaint is to its
students. (See, e.g., App. 116–17 ¶ 13 (alleging students menaced by Defendants’
activities, Defendants’ signs directed at students, Defendants disrupt students’
4
learning environment)); App. 133, ¶ 73 (alleging students injured by Defendants’
alleged activities). No purported injuries to Two Rivers are alleged.
As a matter of binding law, Two Rivers’ failure to plead actual injuries to
itself is fatal to its standing contentions now. Two Rivers is limited to the claims it
actually pleaded, and is stuck with the Complaint it actually filed. Indeed, “a
plaintiff’s relief in a civil action is limited to his complaint. The fact that [other]
allegations in the case at bar could establish a case [for a different action] is
immaterial because that claim is not made.” Airline Pilots Ass’n v. Twin City Fire
Ins. Co., 803 A.2d 1001, 1005 (D.C. 2002) (emphasis added); Town Crier, Inc. v.
Hume, 721 F. Supp. 99, 105 (E.D. Va. 1989) (same). Two Rivers cannot now
re-plead on appeal that which it did not plead in its Complaint. Because it failed to
allege injury to itself, Two Rivers has failed to establish the irreducible constitutional
minimum of standing. Friends of Tilden Park, 806 A.2d at 1206 (“The sine qua non
of constitutional standing to sue is an actual or imminently threatened injury . . . .”).
3. Two Rivers Cannot Ignore That It Has No
Members for Whom to Bring a Claim.
Associational standing requires an organization to demonstrate it has
members that would otherwise have standing to sue. Friends of Tilden Park, 806
A.2d at 1207. Two Rivers’ conveniently ignores this prerequisite in its brief. (Cons.
Br. 10–14.) As a matter of binding law, Two Rivers’ failure to establish actual
membership is fatal to its associational standing claims. (Br. Appellant Larry
5
Cirignano (“Cirignano Br.”) 20–24.) Indeed, “[t]he threshold requirement for even
applying this test is that the organization has actual members or indicia of
membership.” Am. Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 50 n.12
((D.D.C. 1998) (emphasis added).
4. Two Rivers Waived Hindrance by Not Raising It
Below.
Now on appeal, Two Rivers argues a hindrance to its non-existent members’
abilities to bring their own claims (Cons. Br. 12–14), but failed to allege hindrance
in its Complaint or raise it below. “It is fundamental that arguments not raised in the
trial court are not usually considered on appeal.” Thornton v. Norwest Bank of Min.,
860 A.2d 838, 842 (D.C. 2004). Even points asserted, but “not asserted with
sufficient precision [in the trial court] to indicate distinctly the party’s thesis will
normally be spurned on appeal.” Hunter v. United States, 606 A.2d 129, 144 (D.C.
1992).
Even if Two Rivers had members that theoretically could be hindered in
bringing their own claims, Two Rivers utterly failed to plead it. Nor did Two Rivers
allege that its non-member students are somehow hindered in bringing their own tort
claims against Cirignano. As the Superior Court observed, on the record, Two
Rivers’ Complaint makes no mention of such a hindrance. (App. 099 (noting
purported hindrance “was not in the, on the face of the complaint” (emphasis
added).) Two Rivers’ hindrance argument is therefore waived.
6
5. Even If Not Waived, No Cognizable Financial
Hardship or Privacy Hindrance Exists.
Financial impediments to litigation are not alone sufficient to make a
hindrance showing. Furthermore, any purported hindrance posed by Two Rivers’
supposed privacy concerns for its non-member students can be alleviated by readily
available safeguards. Thus, even if not waived, Two Rivers has identified no
cognizable hindrance supporting third-party standing.
First, under binding Supreme Court precedent, neither indigency nor the
inability to afford an attorney is itself a sufficient hindrance to satisfy third-party
standing requirements. See Kowolski v. Tesmer, 543 U.S. 125, 130–31 (2004). In
Kowolski, lawyers for indigent clients claimed third-party standing because without
attorneys the clients would face obstacles to litigation. 543 U.S. at 132. The Supreme
Court held that indigence and the inability to fund litigation were not sufficiently
hindering. Id. (“[W]e do not think that the lack of an attorney here is the type of
hindrance necessary to allow another to assert the indigent defendants' rights.”
(emphasis added)).
Two Rivers selective reliance on a quote from Powers v. Ohio, 499 U.S. 400
(1981), is unavailing. (Cons. Br. 13.) In Powers, the inability to fund litigation or
afford an attorney was not the primary concern. Financial hurdles were but one of
many obstacles involved:
7
The barriers to a suit by an excluded juror are
daunting. Potential jurors are not parties to the jury
selection process and have no opportunity to be heard at
the time of their exclusion. Nor can excluded jurors easily
obtain declaratory or injunctive relief when discrimination
occurs through an individual prosecutor's exercise of
peremptory challenges. . . . [I]t would be difficult for an
individual juror to show a likelihood that discrimination
against him at the voir dire stage will recur. And, there
exist considerable practical barriers to suit by the excluded
juror because of the small financial stake involved and the
economic burdens of litigation. The reality is that a juror
dismissed because of race probably will leave the
courtroom possessing little incentive to set in motion the
arduous process needed to vindicate his own rights.
499 U.S. at 414–15 (emphasis added). Because the inability to finance litigation or
afford an attorney was the sole obstacle in Kowolski, while Powers considered
economics as but one obstacle among many, Kowolski controls, and Two Rivers’
financial hindrance argument fails.
Second, Two Rivers supposes privacy concerns as obstacles to its non-
member students’ suing Cirignano. (Cons. Br. 13.) But courts across the country,
including the Superior Court below, already employ adequate and effective
safeguards to protect minors’ identities. For example, the Superior Court’s rules
demand redaction of minors’ names from pleadings. See D.C. Sup. Ct. Rule 5.2(a).
Thus, identity protection for any minor student of Two Rivers seeking to sue
Cirignano is mandatory. Moreover, the use of pseudonyms to avoid disclosing
minors’ identities, and other precautions such as redacting documents and sealing
8
portions of the record, are readily endorsed and approved by courts. See, e.g., Mental
Hygiene Legal Serv. v Cuomo, 13 F. Supp. 3d 289, 301–302 (S.D.N.Y. 2014).
B. Two Rivers Cannot Succeed on Its Claim for Intentional
Infliction of Emotional Distress Against Cirignano Because
the Record Shows and Two Rivers Admits Cirignano’s
Protected Speech Was on a Broad Issue of Public Interest.
Without evidence or even a complaint allegation in support, Two Rivers
baldly asserts Cirignano’s protected speech was part of an “ill-conceived and poorly-
executed plan” to stop a Planned Parenthood facility from being constructed next to
Two Rivers and that Snyder v. Phelps, 562 U.S. 443 (2011), provides no protection
for his speech. (Cons. Br. 23.) Instead, Two Rivers feigns that Cirignano’s single act
of protected expression in a traditional public forum2 constitutes conduct so extreme
and outrageous that it goes beyond all bounds of decency. (Cons. Br. 23.) These
arguments fail for four separate and independent reasons: (1) Two Rivers cannot
escape the fact that Cirignano’s protected expression was solely on the
unquestionably broad and public issue of abortion; (2) Two Rivers’ allegations
demonstrate Cirignano’s protected expression was only made in the broad context
of abortion as a whole; (3) Two Rivers did not and cannot demonstrate that
Cirignano targeted any student of Two Rivers; and (4) Two Rivers cannot escape
2 The Superior Court held Two Rivers’ Complaint against Cirignano arises out of
his protected speech (App. 097), and Two Rivers concedes the point (Cons. Br. Two
Rivers Public Charter Sch. 6 (“[D]efendants satisfy the first prong of the D.C. Anti-
SLAPP Act”).)
9
binding law holding that Cirignano’s single, isolated act of peacefully holding a sign
in a traditional public forum cannot constitute conduct so outrageous and extreme as
to go beyond all bounds of decency or be utterly intolerable. Two Rivers’ intentional
infliction of emotional distress claims against Cirignano fail as a matter of law.
1. Cirignano’s Speech on the Broad Public Issue of
Abortion Is Entitled to Special First Amendment
Protection.
As the Supreme Court held in Snyder, protected expression—even if found
utterly offensive and contemptuous—cannot support a claim of intentional infliction
of emotional distress. Snyder, 562 U.S. at 458. Because Cirignano’s “speech was at
a public place on a matter of public concern, that speech is entitled to special
protection under the First Amendment. Such speech cannot be restricted simply
because it is upsetting or arouses contempt.” Id. at 458 (emphasis added).
Despite this unequivocal holding, Two Rivers conjures a position that
Cirignano’s speech is not entitled to special protection in the presence of children.
(Cons. Br. 24.) But, the presence of children in a traditional public forum has never
been held a sufficient justification for suppressing otherwise protected expression.
Indeed, the Supreme Court has repeatedly and unequivocally held to the contrary.
See, e.g., Cohen v. California, 403 U.S. 15, 21 (1971) (rejecting government’s claim
that it could “legitimately” curtail expression “in order to protect the sensitive [i.e.,
children] from otherwise unavoidable exposure to appellants’ crude form of
10
protest”); Reno v. ACLU, 521 U.S. 844, 875 (1997) (government’s interest in
protecting children cannot justify restricting protected speech in traditional public
forum); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 688-69 (1968)
(government must still comply with demands of First Amendment even if attempting
to protect children). Thus, “the mere presence of unwitting listeners [and children]
does not serve automatically to justify curtailing all speech capable of giving
offense,” Cohen, 403 U.S. at 21, because the government “may not reduce the adult
population to only what is fit for children.” Reno, 521 U.S. at 875 (internal quotation
marks omitted). Two Rivers’ attempts to circumscribe all speech in the traditional
public forum around its location to “that which would be suitable for the sandbox”
is a constitutionally defunct proposition. See Reno, 521 U.S. at 875.
2. The Overall Context, Content, and Form of
Cirignano’s Protected Speech Was Directed
Towards the Broad Public Issue of Abortion.
In its otherwise constitutionally deficient argument, Two Rivers gets one thing
correct: Snyder teaches that the context, content, and form of speech in a traditional
public forum is relevant to its protection. (Cons. Br. 24.) But Two Rivers utterly
missed the rest of the story as it relates to Cirignano’s speech. The Supreme Court
explained: “What Westboro said, in the whole context of how and where it chose to
say it, is entitled to ‘special protection’ under the First Amendment, and that
protection cannot be overcome by a jury finding that the picketing was outrageous.”
11
562 U.S. at 458. The considerations for this Court are thus simple: “what was said,
where it was said, and how it was said.” Id. at 454.
Cirignano’s “what was said” is constitutionally analogous to the speech the
Snyder Court deemed protected. First, the Supreme Court noted that “[t]he content
of Westboro’s signs plainly relate[d] to broad issues of interest to society at large.”
562 U.S. at 454. Two Rivers contends that Cirignano’s content was not on a matter
of public interest, but rather focused on getting students to “take private action to
stop the Planned Parenthood.” (Cons. Br. 24.) Two Rivers’ own Complaint,
however, graphically refutes Two Rivers’ own argument—it includes a picture of
Cirignano’s expression:
(App. 117 (“Pictured Above: Defendant Larry Cirignano”).) The only issue
addressed in Cirignano’s expression is abortion as a whole, and nothing is directed
at students of Two Rivers in particular. There is no question that abortion is of public
interest. (See Cirignano Br. at 16.) Thus, the total “content” of Cirignano’s
12
expression—the “what was said”—constitutionally mirrors Snyder. Two Rivers’
contention that Cirignano “targeted” students with his message is unsupported.
As to the context—the “where it was said, and how it was said”—Cirignano’s
protected speech likewise occurred in a public forum, and peacefully. “Westboro
conducted its picketing peacefully on matters of public concern at a public place
adjacent to a public street. . . . We have repeatedly referred to public streets as the
archetype of a traditional public forum . . . .” Id. (emphasis added) (internal quotation
marks and citations omitted). Two Rivers’ Complaint and Brief both demonstrate
Cirignano also peacefully picketed, in the archetypical traditional public forum of a
public sidewalk. (App. 127, ¶¶ 52, 54 (alleging Cirignano held a sign on the public
sidewalk near Two Rivers); Cons. Br. 25 (noting Cirignano held his sign “on the
sidewalk”).)
No matter, says Two Rivers. It claims Cirignano cannot rely on Snyder
because Cirignano’s context—holding his sign on a public sidewalk “at times [he]
knew students would be trying to enter the building”—is distinguishable. (Cons. Br.
25.) But this is a distinction without a difference under Snyder. The Snyder plaintiff
claimed Westboro’s expression did not deserve First Amendment protection because
it was “in connection with his son’s funeral” at a time that would “exploit[] the
funeral as a platform to bring their message to a broader audience.” Snyder, 562 U.S.
at 455. The Supreme Court rejected the argument. First, “[t]he fact that Westboro
13
spoke in connection with a funeral cannot by itself transform the nature of
Westboro’s speech” or remove its constitutional protection. Id. at 454. Second, the
fact that it was in conjunction with the funeral and used to gain further attention to
the message in no way diminished its protection because it took place on the public
sidewalk, and peacefully. Id. at 455.
The same considerations apply to Cirignano. That he might have engaged in
expression at a time when people are known to be in the area does not diminish the
protection of his peaceful speech, in a public forum, on a public issue. Thus,
Cirignano’s speech falls squarely within the protection of Snyder, and not even a
jury finding that it was outrageous could overcome that protection. See id. at 458.
Two Rivers’ intentional infliction of emotional distress claims against Cirignano fail
as a matter of law.
3. Two Rivers Did Not and Cannot Show Cirignano
Targeted Students.
Even if, disregarding Snyder, Cirignano’s speech protection could be
diminished by children in the audience, Two Rivers has not and cannot show
Cirignano targeted students and not the broader public issue of abortion. (Cons. Br.
26.) Indeed, Two Rivers concedes in its brief, some “Defendants used some signs
with the broader issues of abortion.” (Cons. Br. 24.) But Two Rivers omits that
Cirignano used one sign on one occasion, on the broad issue of abortion. (App.
117 (depicting Cirignano peacefully holding sign on broad issue of abortion); App.
14
127, ¶¶ 52, 54 (same)). Two Rivers’ only support for the notion that Cirignano
“targeted” students of Two Rivers is a reference to statements and signs of other
defendants. (Cons. Br. 24 (citing App. 126 ¶ 46.a, 127 ¶ 55, both alleging Defendant
Darnel directed speech to students).) As Cirignano has demonstrated (Cirignano Br.
3–5), however, the only allegations against him show a single act of peacefully
holding a sign on the broad issue of abortion in a traditional public forum. There is
no support for a claim that Cirignano targeted or spoke to students, or otherwise left
the First Amendment protections of Snyder.
4. Two Rivers Makes No Attempt to Show
Cirignano’s Lone Act of Peaceful Sign-Holding
Was so Outrageous and Extreme as to Go
Beyond All Bounds of Decency or Was Utterly
Intolerable.
Two Rivers contends this Court’s decision in Ortberg v. Goldman Sachs Grp.,
64 A.3d 158 (D.C. 2013), is inapposite to Cirignano’s speech. (Cons. Br. 26.) But
Two Rivers misses this Court’s Ortberg point: the extreme and outrageous
requirement “is not an easy one to meet,” and “[l]iability will only be imposed for
conduct so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.” 64 A.3d at 163 (emphases added).
Moreover, this Court held that peaceful demonstrations in a traditional public forum
cannot—as a matter of law—meet this test. Id. at 163–64.
15
Two Rivers’ flails and fails to distinguish Ortberg on the fact that Two Rivers’
claims involve a school and not “one of the world’s leading investment banks.”
(Cons. Br. 26.) To be sure, if Two Rivers’ efforts to distinguish Snyder are its
windmill (see supra pt. I.B.2), then its attempts to distinguish Ortberg are its shaving
basin.3 Under Snyder and Ortberg, Cirignano’s peaceful and protected expression in
a public forum cannot be extreme and outrageous conduct sufficient to support an
intentional infliction of emotional distress claim.
C. Two Rivers Is Required to Bring Evidence, Not Mere
Allegations of a Conspiracy, and It Did Neither.
Two Rivers, remarkably, claims its conspiracy claim is likely to succeed on
the merits because the pleading standard for a complaint is “not onerous.” (Cons.
Br. 27 (citing Poola v. Howard Univ., 147 A.3d 267, 276 (D.C. 2016)).) Though the
conspiracy pleading standard may be minimal, it is not non-existent. Moreover,
Two Rivers is required to bring evidence, not mere allegations, showing it is likely
to succeed on the merits to overcome Cirignano’s anti-SLAPP special motion to
dismiss. Two Rivers fails on both counts.
For its conspiracy claim, Two Rivers was required to plead all of the essential
elements, including
3 See In re Lehman Bros. Holdings Inc., 435 B.R. 122, 136 n.5 (S.D.N.Y. 2010) (“In
addition to tilting at windmills, Don Quixote mistook a barber's common shaving
basin for the solid gold helmet of Mambrino, which was believed to be enchanted
with great power.”).
16
an agreement between two or more persons; (2) to
participate in an unlawful act, or in a lawful act in an
unlawful manner; and (3) an injury caused by an unlawful
overt act performed by one of the parties to the agreement
(4) pursuant to, and in furtherance of, the common
scheme.
Weishapl v. Sowers, 771 A.2d 1014,1023 (D.C. 2001) (emphasis added); see also
Griva v. Davison, 637 A.2d 830, 849 (D.C. 1994) (agreement an “essential element”
of conspiracy claim).
Two Rivers faults Cirignano for citing these cases because they were decided
after summary judgment, rather than at the pleading stage. (Cons. Br. 28.) But Two
Rivers, again, misses the point: (1) the standards for an anti-SLAPP motion do not
mirror those of a motion to dismiss for failure to state a claim, and the burden of
proof is on Two Rivers, not Cirignano; and (2) these authorities still provide the
essential elements of a conspiracy claim, which Two Rivers utterly failed to plead.
First, because this matter was before the Superior Court on Cirignano’s anti-
SLAPP special motion, and because Cirignano demonstrated (as Two Rivers
concedes, see supra note 2) that its claims arise out of his protected speech, the
burden is on Two Rivers to produce evidence showing likely success on the
merits, which is far greater than the burden of opposing a motion to dismiss for
failure to state a claim. Compare Competitive Enter. Inst. v. Mann, 150 A.3d 1213,
1220–21 (D.C. 2016) (holding, on anti-SLAPP motion, plaintiff must “present
evidence—not simply allegations—and that the evidence must be legally sufficient
17
to permit a jury . . . to reasonably find in the plaintiff's favor”), and id. at 1237 (noting
Anti-SLAPP Act “impose[s] requirements and burdens on the claimant that
significantly advantage the defendant” (emphasis added)), with Fingerhut v.
Children’s Nat’l Med. Ctr., 738 A.2d 799, 803 (D.C. 1999) (noting on motion to
dismiss for failure to state a claim defendant must show “beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief”), and Atracqchi v. GUMC Unified Billing Servs., 788 A.2d 559, (D.C. 2002)
(noting Rule 12(b)(6) standard advantages plaintiff because allegations “taken as
true and construed in the light most favorable to the plaintiff” and that complaint
cannot be dismissed “even if the court doubts that the plaintiff will ultimately
prevail”). The anti-SLAPP procedure entirely shifts the burdens and advantages. See
Mann, 150 A.3d at 1237 (teaching anti-SLAPP procedure “is a reversal of the
allocations of burdens for dismissal of a complaint under . . . Rule . . . 12(b)(6).”
(emphasis added)). Thus, Two Rivers must shoulder the burden mandated by the
Anti-SLAPP Act under Mann, and demonstrate with evidence that its claims are
likely to succeed. Two Rivers did not and cannot satisfy this burden.
Second, Two Rivers failed even to satisfy the lower burdens of Rule 12(b)(6)
by failing to allege the required elements of a conspiracy claim under this Court’s
Weishapl and Griva precedents, supra. If Two Rivers cannot plead the essential
elements, it fails to state a claim. See, e.g., Madden v. D.C. Transit Sys., Inc., 307
18
A.2d 756, 757 (D.C. 1973); Hercules & Co., Ltd. v. Sham Rest. Corp., 613 A.2d 916,
926 (D.C. 1992). If Two Rivers cannot even state a claim, it necessarily cannot be
likely to succeed on the merits of the claim. Two Rivers’ failure to plead the
essential element of an agreement is fatal to its conspiracy claim against Cirignano.
D. Two Rivers Ignores That Private Nuisance Is Not a Separate
Tort in This Jurisdiction.
Two Rivers’ private nuisance argument skips over the critical question of
whether the claim exists in this jurisdiction. As Cirignano showed in his Brief, it
does not. (Cirignano Br. 34–35 (citing, inter alia, D.C. v. Beretta, 872 A.2d 633, 646
(D.C. 2005) (en banc); D.C. v. Fowler, 497 A.2d 456, 461 (D.C. 1985).) Two Rivers
cannot demonstrate a likelihood of success on a claim that does not exist.
E. Cirignano’s Lone Act of Peaceful Expression in a Public
Forum Could Not, as a Matter of Law, Constitute an
Actionable Private Nuisance.
Even if a private nuisance claim existed, Two Rivers’ allegations against
Cirignano would fail to state it. Two Rivers asserts that Defendants’ protests
“targeted” its students (Cons. Br. 32–33)—which cannot be established as to
Cirignano (see supra pt. I.B.3)—and that Defendants have unreasonably interfered
with Two Rivers’ use and enjoyment of its facilities (Cons. Br. 32–33). But Two
Rivers again fails to employ the correct standard.
According to Two Rivers, it need only show Cirignano “interfer[ed] with the
physical condition of the land, disturb[ed] the comfort of its occupants, or
19
threaten[ed] future injury or disturbance.” (Cons. Br. 31.) But Two Rivers ignores
the rest of the necessary requirements. As this Court has made clear, Two Rivers
was required to plead (and on an anti-SLAPP motion, prove with evidence) that
Cirignano’s alleged acts were to some degree permanent. “To be actionable as a
nuisance, the offending thing must be marked by some degree of permanence
such that the continuousness or recurrence of the things, facts, or acts which
constitute the nuisance give rise to an unreasonable use.” Wood v. Neuman, 979
A.2d 64, 78 (D.C. 2009) (emphasis added); see also Ortberg, 64 A.3d at 168 (same).
Thus, “some degree of permanence is an essential element of the conception of
nuisance.” Reese v. Wells, 73 A.2d 899, 902 (D.C. 1950) (emphasis added). Two
Rivers did not and cannot allege that Cirignano’s single alleged incident of peaceful
protest involves any degree of permanence, and its private nuisance claim must fail.
II. TWO RIVERS’ ATTEMPT TO EXPAND THE RECORD ON APPEAL
IS IMPERMISSIBLE AS A MATTER OF LAW AND DOES NOT
CHANGE THE FACT THAT CIRIGNANO’S PROTECTED SPEECH
CANNOT SERVE AS A BASIS FOR TWO RIVERS’ MERITLESS
CLAIMS.
Two Rivers devotes twenty percent of its argument to what it plainly admits
is “evidence the [Superior] Court did not consider in making its decision.”
(Cons. Br. 34.) In fact, most of what Two Rivers asks this Court to consider pertains
entirely to what Two Rivers acknowledges is not properly part of the record in this
appeal. (Cons. Br. 35 (“[T]he Court made clear that it did not consider this evidence
20
in making its ruling.”).) Two Rivers nevertheless asks this Court to consider such
“evidence” in this appeal. The Court should reject Two Rivers’ invitation.
First, the Superior Court properly disregarded Two Rivers’ last-minute
evidence dump, first revealed to Defendants the morning of the hearing. (App. 024–
25.) Second, Two Rivers’ request to expand the scope of the record on appeal, such
as by adding post-hearing record materials or altogether new “evidence,” is
prohibited as a matter of law. See, e.g., D.C. v. Patterson, 667 A.2d 1338, 1347 (D.C.
1995) (“Appellate review is limited to matters appearing in the record before us . . .
.”); D.C. Transit Sys., Inc. v. Milton, 250 A.2d 549, 550 (D.C. 1969) (“Appellate
review is limited to the record before us.”).
Moreover, nothing proffered by Two Rivers shows it “likely” that “targeted
discovery” under the Anti-SLAPP Act will enable Two Rivers to overcome
Cirignano’s special motion to dismiss. The time for Two Rivers to produce or proffer
“evidence” to oppose Cirignano’s special motion to dismiss or support targeted
discovery was when Two Rivers filed its opposition to Cirignano’s motion, not the
morning of the hearing, and not in this appeal.
CONCLUSION
For all of the foregoing reasons, and those in Cirignano’s initial Brief, this
Court should reverse the Superior Court’s decision and dismiss with prejudice the
claims against Cirignano under the Anti-SLAPP Act.
21
DATED this August 21, 2019.
/s/ Roger K. Gannam
Mathew D. Staver*
Horatio G. Mihet
Roger K. Gannam
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
(407) 875-1776
(407) 875-0770 FAX
Attorneys for Appellant Larry Cirignano
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was filed this August 21,
2019 through the Court’s EFS system, which effect electronic service on the
following parties or counsel of record:
Michael L. Murphy
Bailey Glasser LLP
1054 31st Street NW, Suite 230
Washington, DC 20007
For Appellee
/s/ Roger K. Gannam
Attorney for Appellant Larry Cirignano