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DC lieutenant's lawsuit against TV station tossed out by judge under new anti-SLAPP law. Dave thinks this was a case of poor journalism.

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Read original WTTG-TV story & documents

When I first saw the story above a little more than a year ago, I thought it was unfair to the firefighter who was featured, and missed the real story by failing to track down the people who should be answering the questions. In general, I thought it was a poor job done by the reporter on what was and is a legitimate story.

The person featured in the story is DC Fire & EMS Department Lieutenant Richard Lehan. The report focused on Lt. Lehan's income from the District of Columbia. He was the fire department's top money maker in the overtime category. Similar stories have been done in many cities.

Lehan's feelings about the report were obviously a lot stronger than mine. He filed a defamation lawsuit against WTTG-TV. DC Superior Court Judge Rufus G. King III has now dismissed that suit based on the District of Columbia's new anti-SLAPP law.

SLAPP stands for "strategic lawsuits against public participation". Wikipedia has one of the clearest explanations of a SLAPP I could find:

 A lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Anti-SLAPP laws are generally intended to protect a citizen's right of free speech and, as in this case, have also been used by the news media to do the same.

Richard Lehan's lawsuit is the first dismissal under DC's law.

Drew E. Shenkman and Charles D. Tobin, with Holland and Knight LLP, have written an article about this case. I have forwarded it to's Curt Varone to see if I can encourage him to translate it into English from legalese in one of his columns. Actually it is not that bad, but Curt, a lawyer and firefighter, will do a better job explaining what this all really means. In the meantime here's an excerpt from the article:

In June 2011, Lehan sued for defamation and defamation per se. He alleged that the station's figures were inaccurate and that the report's use of phrases like "racked up" and "month-after-month" were defamatory. He also alleged that the report that he and his brother controlled the assignment of overtime was false.

The station filed a special motion to dismiss under the District's anti-SLAPP statute, D.C. Code §16-5501, et seq., enacted in March 2011. D.C. is the 29th jurisdiction with a law permitting early challenges to SLAPP lawsuits. Under the D.C. statute, if a defendant establishes the lawsuit arose out of "acts in furtherance of the right of advocacy on issues of public interest," the burden shifts to the plaintiff to demonstrate a "likelihood of success" on the merits. If the plaintiff fails, the statute requires the court to dismiss the lawsuit and the judge may award reasonable attorneys' fees.

Now, my complaints about this story have nothing to do with defamation, though I thought there was a fair amount of innuendo with no smoking gun to back it up. If I had been doing the story, I'm sure I too would have featured Lt. Lehan, the top overtime earner. That's a fact important to the story, especially since his later earnings appeared to violate a DC law limiting the amount of overtime a firefighter or police officer can make.

But since there was no indication in reporter Roby Chavez's story (Chavez is no longer with the station) that Lt Lehan was putting in for overtime he didn't earn, my questions would have been directed elsewhere. Instead of spending a lot of time staking out the quarters of Engine 30 trying to get Lt. Lehan to talk, I would have been tracking down, and if necessary staking out, former Chief Dennis Rubin and his assistant chiefs who were ultimately responsible for how the overtime money was spent. They are the people who should have been answering the questions from the reporter and those raised by the council member interviewed in the report.

It isn't just DC. I have brought this same point up many times before elsewhere in the country. If the firefighter or other public servant is legitimately being paid for hours worked, the focus should not be on the person receiving the fat paycheck, but rather the person writing it.

Obviously Judge King has judged that this TV news story was not defamation. That's out of my expertise (though, when I first heard about the lawsuit from a friend, I expressed doubts about its success). I will, however, judge that it was a poor and misguided journalistic effort. 

FULL DISCLOSURE: I have known Lt. Lehan and his brother Ed (also mentioned in the report) for a long time. I like both of them and they both have been kind to me through the years. That said, to my knowledge, I have never talked to either one of them about the story or the lawsuit, and am basing my opinion solely on my experience as a TV reporter who covered the fire service.

In addition, I have some very good friends (or at least did) at WTTG-TV. The station has some wonderful TV journalists on its staff. My comments focus solely on this one story and do not reflect on the news operation as a whole.

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