Sounds More Like Garth Knight to Me

Cross v. Facebook, Inc., No. A148623 (D1d2 Aug. 9, 2017) 

Plaintiff here is Jason Cross, aka, Mikel Knight. No, not Michael Knight—a young loner on a crusade to champion the cause of the innocent, the helpless, the powerless, in a world of criminals who operate above the law. It’s Mikel Knight, a performer of really awful Country/Rap music, who (if one believes the internets) goes around the country with his “Maverick Dirt Road Street Team,” using aggressive and sometimes violent tactics to peddle his merch, harass women, and get in all kinds of traffic accidents.

If the music weren’t bad enough, the tactics have made some folks upset. So they set up a Facebook page called “Families Against Mikel Knight,” which—depending on your point of view—either warns others about Knight and his peeps, or threatens him and ruins his livelihood. Knight sued Facebook, demanding that they take the page down. Facebook said no.

So Knight sues on various theories, which draws an inevitable anti-SLAPP motion. The trial court finds the whole case arises from public activity because Facebook is a public forum and the group’s statements addressed a public issue. It found the bulk of Knight’s claims were barred by the federal Communications Decency Act, but that he showed a likelihood of prevailing on a set of claims alleging violations of his right of publicity. Everyone appealed.

There’s not really a serious fight over the “arising from” prong of the test. Knight tries to claim that one of his claims arises from Facebook’s terms and conditions, not the posted content, but the court doesn’t buy it. He also claims that he’s within the commercial speech exception under § 425.17. But that’s wrong too. Essentially none of the elements of the exception are present. Facebook really doesn’t sell goods or services, the content at issue isn’t Facebook’s own speech, and it doesn’t contain representations of fact about Facebook’s products.

On the merits, the CDA, 47 U.S.C. § 230, says that a provider or user of an interactive computer service cannot be treated as a publisher or speaker of information that appears on its platform due to the acts of someone else. Essentially, if you create an online forum, you can’t be liable for others’ speech on it. (With some inapplicable exceptions.) That dooms Plaintiff’s claims against Facebook, so far as they are grounded in the group’s speech.

There’s some argument that the claims based on the right of publicity fall within a CDA exception for certain claims grounded in intellectual property law. But the Court of Appeal decides it doesn’t need to resolve that debate because even if the CDA didn’t give an immunity, Knight hasn’t made a prima facie case of a right of publicity violation anyway. Whether common law, statutory, or bootstrapped into the Unfair competition law, all right of publicity claims require the defendant to actually use the plaintiff’s likeness. Here, Facebook simply let its users use its platform to post their content. Facebook itself, however, didn’t actually put that content to use. Facebook might have tendered some ads on the same page as the group’s content, but that was too attenuated to the content to meet the use requirement. So CDA or not, these claims failed too.

The trial court thus should have granted to motion as to all of Knight’s claims.

Reversed in part and remanded to enter dismissal and calculate attorneys’ fees.