Federal Courts Continue to Decide California Anti-SLAPP Motions, Despite Criticism

To prevail on their anti-SLAPP motion, the Armstrong defendants first needed to demonstrate they were engaged in free speech activities involving a public issue. Section 425.16 provides no definition of “public interest” or “public issue.” But Chief Eastern District Judge Morrison C. England Jr. found a direct relationship between “the asserted public interest” in Armstrong himself and “the challenged statements” made in the books and their promotional campaigns by the Armstrong defendants. In the Ninth Circuit, private matters involving famous people can be deemed private in anti-SLAPP motion determinations. But Judge England noted that “the Armstrong Books do not concern only the personal details of Armstrong's life ' they concern his public cycling career and cheating in the Tour de France' public activities.”

The class action plaintiffs then argued that anti-SLAPP protection didn't apply here because the doping controversy involved criminal activity. But Judge England observed that “drug trafficking and criminal conspiracy is simply not the conduct at issue in this case. The conduct at issue is the speech about the book and Armstrong's speech about whether he used drugs.”

Under anti-SLAPP procedure, the court next looked at whether the class action plaintiffs demonstrated a “reasonable probability” of prevailing on their causes of action. On this, the district judge decided that the Armstrong autobiographical books weren't the kind of “commercial speech” covered by the California consumer laws at issue. On Sept. 10, 2013, the court granted the defendants' anti-SLAPP motion. But the judge denied attorney fees to the defense lawyers on the ground that he was permitting the plaintiffs to file an amended complaint.

A few days later, the Ninth Circuit issued an anti-SLAPP decision in Doe v. Gangland Productions Inc., 11-56325. The plaintiff had filed suit after his identity was revealed in an episode of A&E's Gangland TV series, for which he had been interviewed. At issue was whether the Doe plaintiff knowingly signed a release consenting to the broadcast of his identity.

The Ninth Circuit first ruled on the program defendants' anti-SLAPP motion that interviewing the plaintiff for the program was “in furtherance of Defendants' right of free speech.” The appeals court added that, “because Defendants demonstrated a public interest in the broad topics of Gangland, they satisfied the public interest requirement under the anti-SLAPP statute.”

However, the appeals court found that Doe had shown a reasonable probability of proceeding on some of his claims. “At this stage in the proceedings,” the Ninth Circuit noted, “Plaintiff has made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void.” But the appeals court decided that the plaintiff's claims for violation of his right of publicity under Calif. Civ. Code '3344 and for negligent infliction of emotional distress should be struck from the complaint. (A claim for intentional infliction of emotional distress remains in the case.) The former allegation failed to survive in light of '3344(d)'s newsworthiness exception; the latter because Doe failed to show that the program defendants additionally had a legal obligation not to broadcast his identity.

Stutzman and Gangland Productions are just two examples of the federal courts' highly active participation in the anti-SLAPP arena. Yet in Makaeff, Chief Judge Kozinski insisted that California's anti-SLAPP statute is a specialized law meant “to extricate certain defendants from the spiderweb of litigation.” Thus, Kozinski implored in his concurrence that reads like an op-ed: “Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.

Ninth Circuit federal appeals court Chief Judge Alex Kozinski recently questioned whether federal courts should hear motions to strike under California's “ant-SLAPP” statute. California Civil Code '425.16 is aimed at protecting parties against lawsuits filed to suppress involvement in free speech activities. In Makaeff v. Trump University LLC, 715 F.3d 254 (9th Cir. 2013), which allowed an anti-SLAPP motion to proceed, Judge Kozinski nevertheless wrote in a concurrence that the state statute “cuts an ugly gash through” the “integrated program of pre-trial, trial and post-trial procedures” set out in the Federal Rules of Civil Procedure.

The anti-SLAPP law may be used to strike state, but not federal, law claims. However, it is frequently used in California state and federal courts, both of which continue to interpret how the statute's provisions should be applied.

In Stutzman v. Armstrong, 2:13-CV-00116 (C.D. Calif. 2013), for example, the U.S. District Court for the Eastern District of California considered an anti-SLAPP motion filed by cycling athlete Lance Armstrong, his publishers, agent-manager and cycle team owner in a class action that claims Armstrong's books contained misleading information. The suit, which was filed after the public revelations about Armstrong's involvement in a performance-enhancing drug controversy, charges that instead of “truthful and honest works of nonfiction biography,” Armstrong's books ' including the best-selling It's Not About the Bike: My Journey Back to Life and Every Second Counts ' are really fictional works. The consumer complaint alleges negligent misrepresentation, fraud and deceit, and violations of California's consumer legal remedies, unfair competition and false advertising statutes.

To prevail on their anti-SLAPP motion, the Armstrong defendants first needed to demonstrate they were engaged in free speech activities involving a public issue. Section 425.16 provides no definition of “public interest” or “public issue.” But Chief Eastern District Judge Morrison C. England Jr. found a direct relationship between “the asserted public interest” in Armstrong himself and “the challenged statements” made in the books and their promotional campaigns by the Armstrong defendants. In the Ninth Circuit, private matters involving famous people can be deemed private in anti-SLAPP motion determinations. But Judge England noted that “the Armstrong Books do not concern only the personal details of Armstrong's life ' they concern his public cycling career and cheating in the Tour de France' public activities.”

The class action plaintiffs then argued that anti-SLAPP protection didn't apply here because the doping controversy involved criminal activity. But Judge England observed that “drug trafficking and criminal conspiracy is simply not the conduct at issue in this case. The conduct at issue is the speech about the book and Armstrong's speech about whether he used drugs.”

Under anti-SLAPP procedure, the court next looked at whether the class action plaintiffs demonstrated a “reasonable probability” of prevailing on their causes of action. On this, the district judge decided that the Armstrong autobiographical books weren't the kind of “commercial speech” covered by the California consumer laws at issue. On Sept. 10, 2013, the court granted the defendants' anti-SLAPP motion. But the judge denied attorney fees to the defense lawyers on the ground that he was permitting the plaintiffs to file an amended complaint.

A few days later, the Ninth Circuit issued an anti-SLAPP decision in Doe v. Gangland Productions Inc., 11-56325. The plaintiff had filed suit after his identity was revealed in an episode of A&E's Gangland TV series, for which he had been interviewed. At issue was whether the Doe plaintiff knowingly signed a release consenting to the broadcast of his identity.

The Ninth Circuit first ruled on the program defendants' anti-SLAPP motion that interviewing the plaintiff for the program was “in furtherance of Defendants' right of free speech.” The appeals court added that, “because Defendants demonstrated a public interest in the broad topics of Gangland, they satisfied the public interest requirement under the anti-SLAPP statute.”

However, the appeals court found that Doe had shown a reasonable probability of proceeding on some of his claims. “At this stage in the proceedings,” the Ninth Circuit noted, “Plaintiff has made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void.” But the appeals court decided that the plaintiff's claims for violation of his right of publicity under Calif. Civ. Code '3344 and for negligent infliction of emotional distress should be struck from the complaint. (A claim for intentional infliction of emotional distress remains in the case.) The former allegation failed to survive in light of '3344(d)'s newsworthiness exception; the latter because Doe failed to show that the program defendants additionally had a legal obligation not to broadcast his identity.

Stutzman and Gangland Productions are just two examples of the federal courts' highly active participation in the anti-SLAPP arena. Yet in Makaeff, Chief Judge Kozinski insisted that California's anti-SLAPP statute is a specialized law meant “to extricate certain defendants from the spiderweb of litigation.” Thus, Kozinski implored in his concurrence that reads like an op-ed: “Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.