Television and the Public Interest

Musero v. Creative Arts Agency, LLC, No. B305066 (D2d7 Dec. 15, 2021)

This is a Desny case where plaintiff, a screen Writer, accuses his former Agent of stealing an idea for a TV show called Main Justice and giving it to his other more-famous, client. Agent filed an anti-SLAPP motion, which the trial court denied, finding that Writer came forward with enough evidence to show a shot at success on the merits. The Court of Appeal affirms, but for a different reason.

None of the activity in this case involves speech in a public forum. So the Defendant needs to show that acts that make up an essential element of plaintiff's claim are "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.” Code Civ. Proc. § 415.16(e)(4). 

As the Supreme Court explained in Wilson v. CNN, (e)(4) encompasses two general types of “other conduct.” (1) Non-speech Conduct that its itself expressive, e.g., “the burning of flags, the wearing of armbands, and the like”; and (2) conduct that is not, in itself, inherently expressive, but which “facilitates expression.” The Court of Appeal here does not focus on that distinction here. But in finding the (e)(4) test satisfied, the Court describes that relevant conduct as Agent's alleged “participation in the creation and development of” the other version of Main Justice. That seems to view the conduct as expressive. As that conduct makes out Desny's element of the use of the idea in breach of an implied agreement to pay for use, the “arising from” part of (e)(4) is satisfied.

But (e)(4) also requires the conduct to relate to public issue. The trial court thought it was satisfied because the “other” Main Justice was supposedly about Eric Holder and his role as the first Black U.S. Attorney General, which is an issue of public concern. As the Court of Appeal explains, however, that runs afoul of FilmOn v. Doubleverify, which seeks to avoid overgeneralization in the public issue inquiry. FilmOn requires a close examination of the public interest in the context of the facts of the case, looking to the speaker, the audience, and the purpose of the speech. This case isn't about the public exhibition of a TV show about a historic figure. It is about the private act of Agent's taking Writer's idea—which was more of a regular procedural about the DOJ—and giving it to Agent's other client. That did not meaningfully contribute to a public conversation about any issue of public interest.

Affirmed.

This is a pretty solid analysis of the public interest element post-FilmOn, and it makes a larger point that I've been harping on for a long time. A flaccid analysis of (e)(4) basically subjects any cause of action against a defendant whose business touches on media or the arts subject to an anti-SLAPP motion. If conduct in furtherance means anything, for instance, that “helps” make a TV show, and if it's enough that the public is interested in TV, we've just created a huge procedural hurdle that sweeps way too broadly to protects stuff that has nothing to do with free speech. Wilson narrowed the analysis for non-expressive “in furtherance” conduct by requiring the conduct to meaningfully foster some legit First Amendment interest. And FilmOn gave teeth to the public issue requirement by looking closely at the actual speech or conduct at issue asking if it really contributes to some meaningful public conversation. This has been a project long in the making, and not without its wrong turns. But it seems to have righted the ship quite a bit.