Article first appeared in the Los Angeles Daily Journal.
As reality network programming, pop culture tabloids and social media websites have increasingly hijacked the entertainment landscape in the U.S., actors, non-actors celebrities and noncelebrities, often fall prey to "not-so-real," manufactured dramatization and unauthorized or inaccurate portrayal of their persona and actions. The legislative and judicial branches have sought to avoid the potential harms posed by these precarious forms of entertainment by creating certain safeguards and legal remedies that protect an individual's reputation, privacy, and ownership of name and likeness.
However, the courts' expansion of California's anti-SLAPP statute (Cal. Civ. Proc. Code Section 425.16) into the entertainment arena has inadvertently counteracted those safeguards by providing defendants responsible for creating and disseminating objectionable entertainment and media content with a sword to strike (or slap) away the cognizable claims of those seeking legal redress.
California enacted the anti-SLAPP statute in 1992 to combat the large volume of lawsuits aimed at chilling free speech of individuals and entities, many of which sought to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances, without getting hit by unaffordable lawsuits from large-scale corporations that could out-spend them on litigation with far more extensive resources.
The anti-SLAPP statute, which provides a mechanism for early determination and dismissal of claims impeding on First Amendment rights, as well as recoupment of attorney fees and costs, was and is a necessary safeguard for citizens and activist organizations, such those who have been sued for testifying before their city councils
and county commissions about building permit and zoning change applications, for expressing concerns to school board members, and for reporting violations of environmental laws to regulatory agencies, etc.
Although more than half of the states in the U.S. followed California's lead and enacted similar anti-SLAPP statutes, California's statute has continued to expand, especially into the entertainment and media arena, remaining one of the broadest in the nation. California's anti-SLAPP statute can strike some or all of a plaintiff's claims if a defendant makes a threshold showing establishing he or she was engaged in an act in furtherance of a right of petition or free speech in connection with a matter of public interest (and the plaintiff to whom the burden shifts cannot show a reasonable probability of prevailing on the claim). Protected activity includes "a statement made ... in a public forum, in connection with an issue of public interest" or "any other conduct in furtherance of the right to free speech, in connection with ... an issue of public interest."
California case law has developed such that television programs, publications and websites that either inform and entertain are now considered public for purposes of the anti-SLAPP statute, and an issue of public interest is defined as "any issue in which the public is interested." Tamkin v. CBS Broadcasting Inc., 193 Cal. App. 4th 133 (2011), involved the creation and broadcast of an episode of the television series "CSI: Crime Scene Investigation" that featured a married couple, based on real-life people, one of whom would commit suicide by overdosing on fluoride. Despite security procedures intended to protect the couples' confidentiality, the synopses, which included the couples' real names, were improperly "leaked and posted on various internet Web sites, including to some 'spoiler' Web sites."
The Tamkin court was tasked with determining whether the defendants' activities in the creation and broadcast of the episode satisfied the public-interest requirement of the anti-SLAPP statute. Relying on language from NygÃ¥rd Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008), and in line with the holdings in multiple other cases, the court answered with a resounding "yes," finding that "'an issue of public interest' ... is any issue in which the public is interested" and "need not be 'significant' to be protected by the anti-SLAPP statute."
The Tamkin court's finding - that an issue of public interest really is any issue in which the public is interested and not whether the public should be interested - has
serious repercussions. If the public is interested in the work or the creative process and production behind it, speech or conduct related to that work qualifies for anti-SLAPP protection, no matter what that work entails. Based on this logic, the courts are not required to undergo any qualitative analysis of what constitutes a "public interest."
Where the anti-SLAPP statute was originally contemplated to offset the economic imbalance between corporations and public interest groups, it has now become a first line of attack for defendant television/film networks and producers, bloggers, magazine publications and other individuals and companies engaged in creating and generating entertainment content. Filing the anti-SLAPP motion allows these entertainment providers to stop defamed, shamed and publicly violated victims in their tracks by staying discovery, forcing them to prove their case has visible legal merit prior to any investigation.
Further daunting to these prospective plaintiffs is that if they lose, the defendant is entitled to a mandatory award of reasonable attorney fees (including from any subsequent appeal). These plaintiffs must also anticipate that even if they win, an order denying the anti-SLAPP motion is immediately appealable, and will completely put a halt to the case until the appeal is resolved.
California's growing body of case law in the realm of reality television and entertainment media demonstrates the dangers and negative chilling effect of the SLAPP statute's expanded scope. Those who have been ridiculed by false and humiliating depictions - to name a few, the interviewees in Sacha Baron Cohen's mockumentaries "Borat" and "Bruno," Dave Hester of A&E's hit reality show "Storage Wars," and Brittany Spears in US Weekly's allegedly defamatory sex tape-related article - have all had their claims for false light depiction, defamation, fraud, right to publicity and unfair business practices SLAPPed away at the very outset of the litigation. Why? Because entertainment media works and "pop culture" apparently entail issues of public interest, whether because of the topic or because well-known celebrities are deemed public figures, rendering the work an issue of public interest.
Striking the perfect balance between First Amendment and other individual rights is always tricky, and likely impossible. However, as the anti-SLAPP statute continues to be wielded as a sword, and more victims are rendered defenseless in the face of our nation's growing mass media culture of "celebrity," that hinges on humiliation, ridicule and contrived drama, perhaps the balance has tipped too far.