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.  
 

A Political Song for (Maybe) Michael Jackson to Sing

Serova v. Sony Music Entm’t, B280526A (D2d2 Jan. 8, 2020)

This is an anti-SLAPP case that I wrote about when the original opinion came out in 2018. The key question is whether Sony’s claims that Michael Jackson is the singer on three vocal tracks on an album issued after his demise are “in connection with a public issue.” If so, the claims are properly subject to a motion to strike under Code of Civil Procedure § 425.16(e)(3) or (4). The Court of Appeal held they were, but then the case got granted and held pending the Supreme Court’s decision in FilmOn, which definitively interpreted the public interest requirement.

Now on remand, the Court of Appeal says it would reach the same result, even in light of FilmOn. It is true that in the FilmOn analysis, a commercial context can weigh against speech being addressed to an issue a public interest. But it’s not necessarily dispositive. Here, the speech at issue addressed whether Michael Jackson was really the singer of those songs. Given Michael Jackson’s prominence as an artist, discussions about whether his final work was really his work are address an issue of public interest, even if they are made in connection with selling the album. This seems reasonable.

But the Court goes on, in an analysis that’s basically identical to the prior appeal, to find that Plaintiff can’t prevail on the merits because the statements are non-commercial speech that is absolutely protected by the First Amendment. As I said in my prior post, I’m a bit skeptical on this point. But we’re already only a hairs breadth from giving First Amendment protection to stone cold bribery, and it seems like fraud is just next in the hopper.

Reversed.

In any event, I implore you, again, to listen to this.

The Way Way Back

Rand Resources, LLC v. City of Carson, No. S235735 (Cal. Feb. 4, 2019).

Somehow I managed to miss this Supreme Court anti-SLAPP decision from the beginning of the year. I covered the Court of Appeal decision, and then mentioned the Supreme Court decision in in my post on the Eddie Money case. But I just forgot to write it up.

Anyway, the decision mostly presages the Supreme Court’s decisions in Wilson and FilmOn, and I’m mostly only going back to it for completeness/using this as a research tool purposes. It’s not news.

The dispute is over an alleged conspiracy to replace the company designated to be the City of Carson’s exclusive agent in recruiting a football team to move to Carson. There’s basically three groups of claims. 

The first bucket of claims allege that the City lied about breaching its contract with the Original Agent (the plaintiff) and steered the business to New Agent. There are supposedly some secret emails between various City officials and New Agent, as well as some lies City officials told to Original Agent. While these statements form the basis of the claims, per Park, they nonetheless fell outside of the anti-SLAPP statute because: (1) they were too attenuated to any public decision to be in connection with an official proceeding under Code of Civil Procedure § 425.16(e)(2); and (2) although Original Agent argued that the statements were related to bringing a football team to Carson, they more specifically related to who the city should use as an agent to carry out that goal. 

While bringing football to Carson might be an issue of public interest to bring the case under § 425.16(e)(4), who gets to be the agent isn’t. Here—somewhat previewing his opinion in FilmOn—Justice Cuellar makes clear that the focus of the public interest inquiry should be the actual speech at hand, not some general topic that it might tangentially relate to. And while it is theoretically possible that the agent selection issue could be a public issue, the City didn’t come forward with any evidence to show that to be the case. 

The second group concerns a claim for promissory fraud. Here, there is a Park problem. The actual fraudulent statement—something about renewing the Original Agent’s contract—is not protected activity. Although the claim alleges some other more arguably protected statements that Original Agent contends show bad intent, the fraud claim does not arise from those statements. They are just evidence.

The third bucket of claims, however, are different. They are claims against New Agent for interfering with Original Agent’s contract with the City. The interference took two forms. First, New Agent lobbied the City not to renew Original Agent’s contract and to hire New Agent instead. Second, New Agent communicated with the NFL in efforts to convince it to relocate a team in Carson. The Court holds that first type of statements are covered by (e)(2), since they were communications meant to influence and official decisions. The the second were covered by (e)(4) since, unlike the selection of the agent, the issue of bringing a football team to Carson was and public interest issue. 

Court of Appeal reversed in part.

No Rams, No Chargers, But Maybe Intentional Interference

Rand Res., LLC v. City of Carson, No. S235735 (Cal. Feb. 4, 2019)

I gave this anti-SLAPP case short shrift when it was decided by the Court of Appeal, thinking that it was a pretty straightforward application of the rule that would soon be enunciated by the Supreme Court in Park, decided shortly thereafter. The Supreme Court granted review. In a unanimous opinion by Justice Cuellar, the Court parses the case a little more closely than I or the Court of Appeal did.

Eddie Money + Employment Litigation = SLAPP?

Symmonds v. Mahoney, No. B283529 (D2d1 Feb. 1, 2019)

Eddie Money fired his Drummer, who has cancer and a bad back. Drummer sued under FEHA, alleging disability and age discrimination. Eddie filed an anti-SLAPP motion, alleging that the claims arose from his First Amendment Protected write to make his music without being hassled by the man. Which the trial court, quite sensibly, denied.

But the Court of Appeal reverses. 

The Public Issue Standard in a Post-Truth World

Filmon.com v. Doubleverify, Inc., No. B264074 (D2d3 Jul. 25, 2017)

Defendant here sells some kind of service where it sniffs out whether adbuys on the Internet are really effective. One part of this service is to uncover whether the sites on which its customers’ ads are displayed have adult content or are commonly used as channels for copyright infringement. Defendant rated Plaintiff’s site—which purports to be a free and legal content streaming site—as containing both of those things. Plaintiff sued Defendant for various libel-ish torts. Defendant filed an anti-SLAPP motion, which the trial court granted. Plaintiff appeals.

A Fair Report of Your Own Complaint Is Still a Fair Report

Healthsmart Pac., Inc. v. Kabateck, No. B264300 (D2d1 as modified Jan. 10, 2017)

This is an appeal of a granted anti-SLAPP motion arising from allegations that some plaintiff lawyers defamed a hospital when they gave statements about the litigation in the press. Unsurprisingly, the order is affirmed.

"I Can Do Whatever the F@%k I want. I’m a Super Lawyer!"

Abuemeria v. Stephens, No. B264542 (D2d6 Apr. 27, 2016)

Justice Gilbert starts off this opinion with a little flair:

The parties in this case are neighbors. Appellants ignored Rodney King’s famous entreaty. Instead of getting along, they initiated events resulting in a brawl with respondent.

I Thought they Were All Gang Prosecutors?

Willard v. Kelley, No. G050340 (D4d3 Jul. 21, 2015)

A candidate for OC Auditor-Controller challenged his opponent’s ballot designation as misstating his occupation. The challenge failed. The defending candidate sought his attorneys’ fees under Code of Civil Procedure § 1021.5, which permits fee awards in cases that substantially further the public interest. While prior cases have held that there can be a significant public benefit when candidates for office are permitted to disseminate their views on issues pertinent to an election, a ticky-tack fight over whether one candidate properly described his occupation doesn’t rise to that level. So the trial court properly declined to award fees under § 1021.5.