Friday, July 29, 2016

If I Say Glitter Gave Me IIED, Will Mariah Win an Anti-SLAPP Motion?

Brodeur v. Atlas Entertainment, Inc., No. B263379 (D2d8 Jun 27, 2106)

There’s a scene in American Hustle where Jennifer Lawrence’s character blows up a microwave oven by cooking some food that is wrapped in foil. During the course of an argument about it between her and her husband—played by Christian Bale—Lawrence yells that she had “read that it takes all of the nutrition out of our food.” When Bale proclaims that’s “bullshit,” Lawrence says she read it in an article by “Paul Brodeur.”

American Hustle
was loosely based on the FBI’s late 1970s Abscam sting operation, which took down six Congressmen and various other politicians on corruption charges. Although the caper at the film
s core is mostly made up, the movie weaves various historical facts from the 1970s into the plot. As the opening title explains: “Some of this actually happened.” One of these historical facts is that Paul Brodeur is a real dude who—in 1977—wrote a series of articles about the hazards of microwave radiation in the The New Yorker and then book called The Zapping of America. Brodeur’s work did not, however, claim that microwave ovens render food un-nutritional.

Brodeur sued the studio and various others associated with the film, claiming that the movie’s attributing to him a false scientific claim he never made defamed him. The studio filed an anti-SLAPP motion, which the trial court denied because American Hustle did not entail “a public issue or an issue of public interest.” The studio appeals.

The Court of Appeal finds that the subject matter of American Hustle is sufficiently a matter of public interest to meet the first prong of the analysis. As the court explains it: “we can see no basis for concluding that a farcical scene about microwave ovens—clearly emanating from matters in which the public was interested during the relevant decade—is anything other than protected activity within the meaning of the anti-SLAPP statute.” I suppose. And because the offhand comment of a fictional character (and a character generally portrayed as wacky and a little unhinged at that) is not the kind of thing that anyone would perceive to be an assertion of objective fact, there’s just no actionable defamation and thus no chance of success. So the motion should have been granted.

I don’t find the court
’s arising from analysis very satisfying. Suffice it to say, the anti-SLAPP statute and the analysis it entails do not line up very coherently with lawsuits arising from fictional works of art. The conduct and speech at the heart of the statute’s protections are two Ps in SLAPP: “Public Participation.” So it covers litigation and other forms of government petitioning. It also protects statements in public fora and “other conduct in furtherance,” but for these two latter categories, the statements or conduct must be connected to a public issue. The type of stuff the legislature had in mind was “participation in matters of public significance,” see § 425.16(a), i.e., political stuff, albeit broadly construed: speechifying, rallies, protest, pamphleteering, non-fiction journalism, etc.

While art is clearly and deservedly entitled to the strong protections of the First Amendment, not all First Amendment protected activities are addressed by the anti-SLAPP statute. And, frankly, they don’t need to be. No doubt, we intuitively want art to be protected by the anti-SLAPP regime, because, after all, only jerks sue people for making art. We feel really strongly that way down here in the Second District—Hollywood’s home court. (For proof, check out Defendants’ list of amici.) So, when these silly claims arising from fictional works of art get filed, we try dutifully to pound their square pegs into the round hole of the anti-SLAPP protection.

Which leads invariably down this facile path of trying to decide if works of essentially fiction or abstract representation address matters “of public interest.” Was microwave safety an issue of public interest? The style of the 1970’s? ABSCAM? Paul Brodeur? Is a movie an issue of public interest simply because people are interested in the movies? What if it’s not a very popular movie? Or a movie about a not very popular topic? Or an abstract or surreal movie where it’s not too clear what the “issues” are? Does David Lynch get less protection than Oliver Stone? And what about art and music? Is The Reaper (Catalan Peasant in Revolt) anti-SLAPP protected but not Composition with Red, Yellow, and Blue? Does Whitey’s on the Moon get protection but not Space Is the Place?

I don’t claim to have all the answers here, but a few things seem pretty clear. First, § 425.16(e)(3) applies to “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” A movie is not “written or oral statement.” Nor is it a public forum or a place open to the public. Nor are most performances or exhibitions of art. So, generally speaking, these kinds of things don’t fall within (e)(3). We can think up hypothetical examples where they might, but most of the time, they just don’t.

So then we’re left with (e)(4): “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” As I have been saying for years now, somebody needs to come up with a coherent theory on (e)(4).* Because, read literally, it covers a claim for wiretapping to win a high-profile litigation. And a claim for sexual discrimination in hiring a newscaster or in assigning a lawyer to cases. And a claim for bribing a lawyer to get his client’s private documents for use in a political smear campaign. And a claim that a teacher was denied tenure on the basis of her race. And a PI claim for food poisoning contracted from the craft services table while working on a documentary about James Madison. (OK, I made up that last one. But the others are real.) Some have been held protected, some not, and I’ve never seen a good answer why.

In any event, it seems, at least to me, that (e)(4) shouldn’t be read so broadly to invoke the strong medicine of the anti-SLAPP remedy just because the operation of a law firm, a media or entertainment business, or an educational institution generally and broadly touches on First Amendment-implicating activity. It’s not like there aren’t any number of ambiguous words in (e)(4) to interpret it so that it covers stuff that is more or less consistent with the (e)(1)-(3). Has nobody heard of ejusdem generis?

None of which is meant to justify this totally stupid lawsuit. It deserved to be dismissed on a demurrer for precisely the reason the court points out in addressing the merits prong of the analysis.

Reversed.

*
Big project. Working on it. 

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