Motion for Reconsideration Filed in Sarah Palin’s Defamation Case Against the New York Times

Sarah Palin’s attorneys are trying to salvage her defamation claim against the New York Times – which was dismissed with prejudice by U.S. District Judge Jed Rakoff of the Southern District of New York only one month ago – by filing a new motion for reconsideraton criticizing the judge’s early-stage evidentiary hearing and subsequent decision to dismiss her complaint with prejudice before permitting an amended complaint.

We previously covered Palin’s defamation suit against The New York Times and Judge Rakoff’s decision to dismiss her complaint with prejudice at the pleading stage, see  Palin originally sued the newspaper over an editorial published in June 2017, in which the Times cited a map from her political action committee illustrating certain congressional districts marked with crosshairs.  Palin asserted that the map wrongfully linked the 2011 shooting in Arizona that injured Congresswoman Gabby Giffords to Palin’s political action committee.  The newspaper published a correction one day later that denied any connection between Palin’s political action committee and the Arizona shooting.

As a public figure claiming defamation, Palin is required to plead that the author acted with actual malice.  Following an evidentiary hearing, Judge Rakoff determined that Palin did not sufficiently allege enough clear and convincing evidence to show that the New York Times’ author published the editorial with the knowledge that the statements were false or with reckless disregard as to their falsity.  The court found that the primary author of the purportedly defamatory statement did not act with actual malice in this instance.

Palin’s legal team is now challenging Judge Rakoff’s decision to dismiss the complaint with prejudice, in contending that the court “incorrectly presumed based on limited legal briefing that she could never adequately allege actual malice.” In her motion for reconsideration filed on September 25, Palin argues that her proposed amendment complaint would cure the purported deficiencies upon which the court based its dismissal with prejudice based on new facts which have come to light, and that the court is bound to accept as true her allegations about the author’s motivations.

We will continue to provide updates on this case following the court’s decision on whether to vacate its prior judgment.

Joy in Who-Ville? Playwright Wins Fair Use Copyright Dispute in Parody of “Grinch”

It’s not quite what Dr. Seuss envisioned: Kind-hearted and cheerful Cindy-Lou Who from the childhood classic “The Grinch That Stole Christmas” becomes a cynical adult who was thrown in prison after murdering her abusive husband, the Grinch.  Such is the premise of “Who’s Holiday!” – a play characterized by its playwright as “a dark comedic work with explicit language geared towards only adult audiences.”

The Southern District of New York recently agreed with the playwright that the play constituted fair use and therefore did not infringe on Dr. Seuss Enterprises L.P.’s copyright in the well-known children’s book or related trademarks.  See Lombardo et al. v. Dr. Seuss Enterprises, L.P., Case No. 1:16-cv—09974 (S.D.N.Y. Sept. 15, 2017).  The ruling allows plaintiffs to proceed with the show’s off-Broadway run, after the performances were delayed in November 2016 following cease and desist threats from Dr. Seuss Enterprises.

U.S. District Judge Alvin K. Hellerstein found that the play serves as a parody of Grinch and thus is a transformative work because it “recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy-Lou Who – a symbol of childhood innocence and naiveté– in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture and murder.”

“Who’s Holiday” – We’re Not in Who-Ville Anymore

The plot of the play in question reads more like a tawdry novel than of a timeless children’s tale for the holiday season.  “Who’s Holiday” takes place 43 years after the end of Grinch and chronicles Cindy-Lou’s traumatic relationship with the Grinch character.  Cindy-Lou – who now drinks hard alcohol and abuses prescription pills – tells the audience that she engaged in sexual intercourse with the Grinch when she turned eighteen, resulting in a pregnancy.  She married the Grinch (“When I told my parents they weren’t pleased in the least / I mean, who wants their baby girl deflowered by a beast”) and moved into his cave at the top of Mount Crumpit.

As the marriage deteriorated after years of unemployment, lack of heat and hunger, Cindy Lou and the Grinch engaged in a physical struggle which resulted in the Grinch falling off a cliff and dying.  Cindy Lou was arrested for his murder, convicted and sent to prison.  The play begins soon after her release from prison, as she speaks to the audience in rhyming phrases while purportedly waiting for guests to arrive for a Christmas party.

In a commentary on the play’s plot, the court noted: “[T]he Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou’s naiveté, Who-Ville’s endlessly-smiling, problem-free citizens and Dr. Seuss’ rhyming innocence, all appear ridiculous.”

Fair Use and Parody

To promote science and the arts, courts have developed the fair-use doctrine, which permits unauthorized copying in some circumstances, with the goal of furthering copyright’s purpose.  According to one of copyright law’s seminal cases – Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994) – the “threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.”  Id.  In Campbell, the Supreme Court determined that the defendant’s rap video parodied the notable “Oh Pretty Woman” song because the rap video was “clearly intended” to invoke, and scorn, the original song.

Seuss Enterprises claimed that “Who’s Holiday” infringed on its intellectual property rights because the play “does not poke fun of, ridicule, comment upon, criticize, or otherwise transform Grinch.”  Instead of a parody entitled to fair use protection, Seuss contended that the play was a sequel – a derivative work subject to copyright laws.  Seuss asserted: “Turning Charlie Brown into a middle-aged drug addict would not be parody, and turning Cindy-Lou Who into a middle-aged widow is not parody, either.”

The playwright plaintiff, on the other hand, argued that the play was an obvious parody in that it contrasted Cindy-Lou Who’s innocence and cheer with R-rated topics such as profanity, teen-age pregnancy, drug and alcohol abuse, domestic violence and murder.  Additionally, the playwright claimed that the play was transformative in that it “contains original dialogue, a newly devised plot, and the structure, tone and themes of the Play are materially different from that of the Grinch.”

The court agreed with plaintiffs, in finding that the play needed to evoke the style and message of Grinch in order for there to be an object of the parody. By poking fun at the “utopic depiction of Who-Ville,” the play “turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”  The play was not, as the Seuss estate asserted, a duplicate of the children’s classic designed “to avoid the drudgery in working up something fresh” but instead functioned as a reimagining that merely played on the book’s premise.

Thus, the court held that the play constituted fair use and did not infringe on Seuss’ copyright in Grinch.  The court also determined that the play wouldn’t impact the market for the original Grinch, because there was no logical claim that the two would serve as competing substitutes, or, as the court wrote, “no possibility that consumers will go see the play in lieu of reading ‘Grinch’ or watching an authorized derivative work,” since they would appeal to such different audiences.

FTC Takes Action Against Social Media Influencers

This morning, the FTC announced that it had reached a settlement in its first-ever complaint against individual social media influencers and that it had sent warning letters to other prominent influencers. In addition, the FTC announced that it had updated previous guidance on influencer campaigns.


The settlement involves Trevor Martin and Thomas Cassell, owners of CSGO Lotto, an online multi-player game. Martin and Cassell are also social media influencers who have gaming channels on YouTube with millions of followers. Starting in 2015, both men posted videos of themselves playing the game and discussing how they had won money. They engaged in similar activities on other platforms, including Twitter and Instagram. None of the videos or posts, however, mentioned any connection to the company. Martin and Cassell also paid other influencers to promote the game on social media. Most of individuals did not disclose their connections to the company and the few who did only did so “below the fold.”

Last year, various media outlets broke the news that Martin and Cassell ran the CSGO Lotto site. Many fans who had assumed that the men’s reviews were unbiased became upset, controversy followed, and the game shut down. Now we know that the FTC got involved, as well. As part of the proposed settlement with the Commission, Martin and Cassell are prohibited from misrepresenting that any influencer is an independent user. Instead, any connection between an influencer and the product being promoted must be disclosed in a “clear and conspicuous manner.”

Warning Letters

In April, we noted that the FTC staff had sent “educational letters” to more than 90 social media influencers, reminding them of their obligation to disclose any connection they have to the companies whose products they promote. Today, the FTC announced that they had sent new “warning letters” to 21 of those influencers.

The new letters cite specific posts that concerned the FTC staff and explained why those posts might not comply with the Endorsement Guides or the FTC Act. For example, some of the letters noted that the staff believe that tagging a brand is an endorsement of the brand. “Accordingly, if you have a material connection with the marketer of a tagged brand, then your posts should disclose that connection.” Other letters stated that simply thanking a brand is not a sufficient disclosure. And others reminded influencers that disclosures must be easy to find, and that consumers shouldn’t be required to click a link in order to find them.

Updated Guidance

The FTC also released an updated document with answers to frequently asked questions. This version includes more than 20 new answers addressing specific questions that marketers and influencers may have about whether and how to disclose material connections in their posts. For example, the document covers topics such as including tags in pictures, disclosures on Instagram, disclosures on Snapchat, how to disclose free travel, and terms that can be used in disclosures.

Stay tuned for more coverage of these developments.

Palin v. The New York Times Co.: Newspaper Wins, Palin Loses

Bottom line: Yesterday, on August 29, 2017, Southern District of New York Judge Jed S. Rakoff dismissed, with prejudice, Sarah Palin’s defamation complaint against the New York Times Company.

The dispute arose from an editorial first published on June 14, 2017, following the mass shooting of Republican lawmakers at a baseball field in which Rep. Steve Scalise and several others were wounded.  In describing the shooting and making a connection to previous gun-related violence in Arizona that wounded former Rep. Gabrielle Giffords, the newspaper’s editorial board wrote that the “link to political incitement was clear.”  The editorial provided background on the 2011 Arizona shooting by stating that “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The Court (federal district court in the Southern District of New York) dismissed – at the pleading stage – Mrs. Palin’s complaint for defamation, with prejudice, arising from the NYT editorial.

The Court noted that, in her complaint, Mrs. Palin attempted to show that the NYT acted as if it had a collective brain, rather than by showing that the individual responsible for the statement acted with actual malice.   “This will not suffice,” the Court explained.  Rather, the “state of mind required for actual malice would have to be brought home to the persons in the [media defendant’s] organization having responsibility for the publication of the [statement].”  And, in any event, the Court found following an evidentiary hearing, the primary author of the allegedly defamatory statement did not act with actual malice, and Mrs. Palin’s factual allegations to the contrary could not salvage her claim.

The Court’s dismissal of the action at the earliest possible opportunity is noteworthy – it is important to dismiss meritless defamation cases at the outset so that those in the news media are assured that they may exercise their First Amendment rights without being unduly burdened by having to pay for expensive, groundless litigation.  Here, the law is clear that public figures like Mrs. Palin, who seek damages for alleged defamatory statements, must meet a very high standard above and beyond simply proving that the statements about them were false.  They also must prove by clear and convincing evidence, with particularized facts, that the publisher made the statements with actual malice (meaning that the publisher made the statements with knowledge that the statements were false or with reckless disregard as to their falsity).

In the US, speech on matters of public concern is at the heart of First Amendment protection.  Snyder v. Phelps, 131 S.Ct. 1207 (2011).  The bedrock principle behind the First Amendment is that we trust the people.  The people – not government officials — are in charge.  We trust their judgment to get to the right result, and so we have to give them information.  The people have to have information to know what is going on in government, and that’s where the press comes in.  The public has a right – a need, actually – to be informed about important events about public figures, and the press has to be afforded the freedom to report on such topics without fear of reprisal in the form of expensive, meritless litigation.

Or as the judge explained in dismissing Mrs. Palin’s suit, there is  “a profound national commitment to the principle that debate on public issues be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  (citing New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).

The very first sentence of this thoughtful (and correct) opinion sums it up: “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States.”  And “if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure [like Mrs. Palin] must be limited to those cases where the public figure has a plausible factual basis for complaining that [an erroneous, hurtful statement] was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity” (i.e., with “actual malice”).

Finally, the Court explained that the NYT’s editorial board is clearly not a fan of Mrs. Palin.  But it isn’t required to be under the law.

Palin v. The New York Times Co.: Newspaper Mounts Robust Defense to Defamation Lawsuit

The New York Times is defending itself against a defamation lawsuit brought by former Alaska Governor and Republican vice presidential candidate Sarah Palin, as the newspaper asserted in a recent motion to dismiss that the statements alleged as defamatory in Palin’s complaint are not actionable as defamation and that Palin has not plausibly pled actual malice.

The dispute in Palin v. The New York Times Co., Case No. 1:17-cv-04853 (S.D.N.Y.), centers on an editorial published on June 14, 2017, following the mass shooting of Republican lawmakers at a baseball field in which Rep. Steve Scalise and several others were wounded.  In describing the shooting and making a connection to previous gun-related violence in Arizona that wounded former Rep. Gabrielle Giffords, the newspaper’s editorial board wrote that the “link to political incitement was clear.”  The editorial provided background on the 2011 Arizona shooting by stating that “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The New York Times published a correction and apology the following day, in which the newspaper clarified that the map published by the political action committee placed certain electoral districts under stylized crosshairs but did not place the actual Democratic politicians representing those districts under crosshairs themselves. The newspaper’s correction also stated that “no such link was established” between political rhetoric and the 2011 shootings.

Despite the correction and apology, Palin filed her lawsuit against the newspaper on June 27, 2017, contending that she was unlawfully defamed based on the editorial’s use of her name as a link to the shootings.  The complaint alleged that The Times “falsely stated as a matter of fact to millions of people that Mrs. Palin incited Jared Loughner’s January 8, 2011 shooting rampage.”  Moreover, according to the complaint, The Times had knowledge when it published the editorial that no connection existed between Palin’s political activities and the Arizona shooting, based on a series of articles previously published by the newspaper suggesting that the violent attack was not politically motivated.

In its motion to dismiss, The Times countered the allegations by asserting that (1) the complaint fails to state a viable defamation claim because challenged statements are neither “of and concerning” Palin nor actionable as defamation, and (2) Palin has not adequately pled “actual malice” – a required showing given that Palin clearly is a public figure.  U.S. District Judge Jed S. Rakoff set oral argument for July 31, 2017 and stayed discovery until then.

Failure to State a Viable Defamation Claim

First, The Times contends that, as a defamation plaintiff, Palin must plead and prove that the allegedly defamatory statements were “of and concerning” her.  According to its motion, the complaint wrongfully alleges that the editorial falsely accused Palin personally of inciting the Arizona shooting when, in fact, the editorial only mentions Palin’s name in stating that the crosshairs map at issue had been circulated by a political action organization affiliated with her.  Because the plain language of the editorial mentions “Sarah Palin’s political action committee” and not Palin herself, The Times argues that the editorial refers only to the conduct of an entity and not to the actions of the person in question.

As to the alleged defamation itself, The Times claims that Palin’s fundamental contention – that there is “no link” between the crosshairs map and Loughner’s shooting – is just as speculative as the editorial.  Because Loughner’s true motivations for the shooting remain unknown, The Times contends that whether he was influenced by the crosshairs map or by any other political discourse is not capable of being proven true or false – and therefore the meaning attributed to the editorial is not actionable in defamation.

Failure to Plead Actual Malice

As a public figure, Palin faces a heavy burden for proving defamation.  According to the motion to dismiss, the Second Circuit has specifically held that a public figure must plead “plausible grounds” to infer actual malice by alleging “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of” actual malice.”  See Biro v. Conde Nast, 807 F.3d 541, 546 (2d Cir. 2015).  Because the newspaper has published other articles reporting that there was no connection between the Arizona shooting and crosshairs map, and because it published a correction the following day, The Times argues that Palin’s argument contending that the newspaper deliberately sought to defame her is baseless.

Although Palin’s complaint contends that the newspaper failed to follow its own journalistic policies and such errors serve as proof of actual malice, The Times rebuts that assertion by arguing that even an “extreme departure from professional standards” is insufficient to demonstrate actual malice.  Relating to the correction published the next day and whether it was adequate to correct the challenged statements, The Times claims that because actual malice is measured at the time of publication, any subsequent correction is not probative of the defendant’s state of mind at the time of publication.  Moreover, the newspaper’s decision to publish any correction serves to undermine any claim of actual malice, according to the motion to dismiss.

Disgorgement Damages

Palin’s complaint requested disgorgement of the newspaper’s “ill-gotten gains” in the form of advertising revenue derived from the editorial. The Times contends that this request is improper, claiming that the only remedy for defamation is an action for damages – the “actual harm caused to the reputation of the person defamed.”  The newspaper argues that there is no precedent for seeking disgorgement of advertising revenue as an element of damages in a defamation action and that such an award would be precluded by the First Amendment as it would serve as “gratuitous” recovery.

Defamation Law Series: Texas Court Holds that “Rhetorical Flourishes” In Article Do Not Support Defamation Claim

The Texas Fifth Court of Appeals in Dallas recently dismissed defamation claims against a Dallas magazine, finding that although a headline and article could be interpreted as criticism of a former symphony orchestra volunteer, the statements functioned as non-actionable opinions.

In September 2013, D Magazine published an article titled: “The Talented Mr. Reyes: How a man of meager means and a mysterious past duped Dallas society.” The article chronicled the tale of Jose Reyes, who worked for Bank of America and volunteered at the Dallas Symphony Orchestra (DSO).  Reyes’ volunteer position ended after allegations that he “crashed” society parties without an invitation and overstepped his boundaries in communicating with the press.  Although Reyes denied these allegations, the DSO terminated his volunteer post in July 2013 and issued a press release stating that he was no longer affiliated with the organization.  The press release prompted D Magazine to follow up with an article.  Following the article’s publication, Reyes was fired from his job at Bank of America.

Reyes sued the magazine for defamation and the DSO on claims of conspiracy and tortious interference with this employment relationship.  Both defendants filed motions to dismiss the claims; the trial court partially granted but also partially denied the motions. On appeal, the Fifth Court examined identified fifteen statements from the article that Reyes contended were defamatory.  The statements included:

  • The article’s headline, which referenced Reyes’ “meager” means, “mysterious past and to his “duping” of Dallas society;
  • A statement addressing complaints that he “crashed parties, blustered his way into photos, and misrepresented his role with charities”;
  • Several statements characterizing his behavior with the DSO as exaggerating his importance to the organization; for example, the article stated that “Reyes bought the last-expensive ticket and then stood at the front door greeting guests, as if to ‘appear that he was a huge sponsor’”; and
  • A discussion of the DSO’s 2013 Gala Launch Party, in which the article stated that “No one claimed to have invited him, and one key [ ] sponsor was incensed by his presence.”

To be actionable for defamation, a statement must assert an “objectively verifiable” fact as opposed to a constitutionally-protected opinion.  See Main v. Royall, 348 S.W. 381, 389 (Tex. App. – Dallas 2011).  Subjective opinions are not capable of possessing a defamatory meaning because such descriptions amount to personal judgments that “rest[] solely in the eye of the beholder.”  Avila v. Larrea, 394 S.W. 3d 646, 659 (Tex. App. – Dallas 2012).

In D Magazine v. Reyes, the Fifth Court determined that none of the 15 statements identified by Reyes could support a defamation claim.  While Reyes contended that some of the article’s descriptions (such as “party-crasher”) suggested something objectionable or undesirable about him, the court concluded that the statements merely served as opinions that Reyes did not “fit” within Dallas society and therefore were not actionable.

Judge Michael O’Neill, who wrote the opinion, reasoned: “The language of ‘crashing’ parties and ‘blustering’ into photos certainly includes some rhetorical flourish.  But the significant underlying presence here, and through much of the article, is the Reyes was not welcome.  That is an opinion, not a verifiable fact.”

Additionally, Reyes pleaded that the article taken as a whole was defamatory, even if none of the 15 specific statements met the standard.  The court denied this supplemental claim, concluding that because it previously had addressed the allegations individually and determined that they were not defamatory, “stating them in concert does not change their meaning.”

Pertaining to the claims against DSO, the court ruled that it did not have jurisdiction and declined to hear them.

Defamation Law Series: Melania Trump Settles Her Libel Lawsuit Against Daily Mail

First Lady Melania Trump reportedly has settled her lawsuit against the British tabloid newspaper, Daily Mail, for about $2.9 million plus costs.

Mrs. Trump originally filed her lawsuit in September 2016 in Maryland based on allegations that Daily Mail, among others, had republished defamatory statements when it reported rumors that she had previously worked as a high-end escort.  The Maryland court ultimately dismissed the action against Daily Mail on jurisdictional grounds.  A discussion of that decision may be found here.

Mrs. Trump subsequently re-filed the lawsuit in February 2016 in New York, claiming damages of at least $150 million.

In addition to agreeing to pay the alleged settlement amount, Daily Mail has issued an apology in which it stated that:  “We accept that these allegations about Mrs [sic] Trump are not true and we retract and withdraw them.”  Daily Mail’s entire apology may be found here.

Defamation Law Series: California Court of Appeal SLAPPS Several Claims Asserted Against Boxer Floyd Mayweather

The California Court of Appeal recently dismissed several claims asserted against the famous professional boxer, Floyd Mayweather, Jr., by his ex-fiancé, Shantel Jackson.

Mayweather and Jackson had been involved in an on-again, off-again romantic relationship.  Jackson alleged that she had ended her relationship with Mayweather after he had become violent on several occasions.  Before the end of their relationship, however, Jackson was purportedly pregnant with twins, and at Mayweather’s request, provided him with a copy of a sonogram of the twins.

After Jackson allegedly refused Mayweather’s attempts to reconcile, Mayweather posted on his Facebook and Instagram accounts: “the real reason me and Shantel Christine Jackson @MissJackson broke up was because she got an abortion, and I’m totally against killing babies.  She killed our twin babies.  #ShantelJackson #Floyd Mayweather #TheMoneyTeam #TMT.”  Mayweather also posted a copy of the sonogram and a summary medical report regarding the pregnancy.

The next day, Mayweather discussed the purported abortion during a radio interview, claiming that Jackson terminated the pregnancy because she was concerned about the impact it would have on her appearance.  Mayweather also stated that she had undergone extensive cosmetic surgery procedures, including on her nose, chin, and cheeks.

Based in part on these allegations, Jackson filed a complaint against Mayweather asserting claims for, inter alia, invasion of privacy (public disclosure of private facts), invasion of privacy (false light portrayal), defamation, and intentional and negligent infliction of emotional distress.  Mayweather filed an anti-SLAPP motion to strike those five causes of action.

When ruling on an anti-SLAPP motion, courts engage in a two-part test.  First, the defendant must establish that the claim arises from activity protected by the anti-SLAPP statute.  Second, if the defendant makes the requisite showing, the plaintiff must demonstrate the merit of the challenged claim by establishing a probability of success on the merits.

The Court here found that the first prong had been satisfied because Mayweather and Jackson are high-profile individuals who are the subject of extensive media scrutiny.  The Court thus concluded that Mayweather’s postings and interview comments about the relationship, the pregnancy and its termination, and Jackson’s alleged cosmetic surgery, constituted celebrity gossip that concerned an issue of public interest.

With respect to the second prong, the Court found that Jackson had failed to establish a probability of success on the five causes of action to the extent that they were based on Mayweather’s alleged statements about Jackson.

Invasion of privacy (public disclosure of private facts).  To prevail on a claim for invasion of privacy based on public disclosure of private facts, the plaintiff must demonstrate (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) is not of legitimate public concern.

Focusing on the fourth element of legitimate public concern, that Court observed that “newsworthiness” is a complete bar to liability for the publication of truthful information.  The Court acknowledged that Mayweather’s statements about Jackson concerned private information and that disclosure would be offensive to the reasonable person.  The Court nonetheless concluded that “given Jackson’s high profile and voluntary disclosure on social media of many aspects of her personal life, the publication of those otherwise intimate facts must necessarily be considered newsworthy under the broad definition of that term developed and applied by the Supreme Court . . . .”

Jackson was, however, allowed to proceed with her claim to the extent it was based on Mayweather’s posting of the sonogram and medical report because posting those items constituted a “morbid and sensational” prying into Jackson’s private life that served no legitimate public purpose.

Defamation.  To prevail on a claim for defamation, a plaintiff must establish (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injury or causes special damage.  The parties did not dispute that Jackson was a public figure, which therefore required her to demonstrate “actual malice,” i.e., that Mayweather’s statements were made with knowledge of their falsity or with reckless disregard of whether they were false.

Jackson argued that Mayweather’s posts about who ended the relationship and the reason for the breakup contained false statements of fact.  The Court agreed that Mayweather’s statements were not opinion, but rather, assertions of fact capable of being proven true or false.  The Court found, however, that “more is required.”  Specifically, Jackson had failed to contest Mayweather’s declaration that she had an abortion, and as a result, Mayweather’s statement that he ended the relationship for that reason was not defamatory.  The Court concluded that “the allegedly false part of the posts (the cause of the breakup) did not expose Jackson to contempt, ridicule or other reputational injury.”  In reaching that decision, the Court noted that even Jackson’s own evidence of harm centered on the consequences of disclosing the abortion, not on Mayweather’s role in, or reason for, ending the relationship.

The Court also found that Mayweather was not liable for defamation based on his statements that Jackson had undergone extensive cosmetic surgery.  In reaching that conclusion, the Court highlighted that Jackson did not contest that she had cosmetic surgery.  While Jackson asserted that Mayweather had lied when he stated that she had surgery to change her nose, chin, and cheeks, the Court observed that Jackson failed to address how that alleged exaggeration created a different and negative effect from which the truth would have produced.  The Court thus found that falsity could not be proven because the challenged statement was substantially true.

The Court similarly refused to consider Jackson’s claim that she was defamed by Mayweather’s statement that she had an abortion due to her concern about her appearance.  Jackson had failed to include that allegation in the complaint, precluding the Court from reaching the merits of that argument.

Invasion of privacy (false light portrayal).  Jackson’s false light claim was based on the same statements as her claim for disclosure of private facts; namely, Mayweather’s assertion that he ended the relationship because Jackson had an abortion and his comments about her alleged cosmetic surgery procedures.  In dismissing this claim, the Court found that it suffered from the same “fatal defects” as her defamation claim:  “Mayweather’s allegedly false explanation for the couple’s breakup did not expose Jackson to ‘hatred, contempt, ridicule, or obloquy; his exaggerated description of the extent of Jackson’s cosmetic surgery was, in substance, truthful.”

Intentional and negligent infliction of emotional distress.  The Court found that none of Mayweather’s radio interview statements or postings, including the posting of the sonogram and medical record, could be characterized as “atrocious conduct” that was intolerable in civilized society.  As a result, Mayweather’s statements could not form the basis of an intentional infliction of emotional distress claim.

Jackson was allowed to proceed with her other causes of action to the extent they were not premised on Mayweather’s protected speech.

Stop The Press’s Anti-SLAPP: Federal Judge In Georgia Denies CNN’s Motion To Strike In Defamation Suit

A federal court in the Northern District of Georgia recently denied CNN’s motion to strike in a defamation lawsuit, ruling that Georgia’s anti-SLAPP statute has no application in federal court.  This places the court on the side of the D.C. Circuit and squarely against the First, Fifth, and Ninth Circuits, which have all applied state anti-SLAPP laws in federal court.  CNN has appealed and will ask the Eleventh Circuit to weigh in.

The Lawsuit

David Carbone is the former CEO of St. Mary’s Medical Center in West Palm Beach, Florida, and he is suing CNN for defamation in Georgia federal court.  According to the lawsuit, CNN published twenty-five reports relating to the infant mortality rate for open-heart surgery at St. Mary’s.  Carbone alleges that CNN’s reports identified that St. Mary’s mortality rate for such surgeries was three times the national average, but that CNN intentionally manipulated statistics to fabricate its claim.  He also alleges that CNN included his name and picture in connection with its reports, thus allegedly making the communications about him (a requirement under Georgia’s defamation law).  Carbone states that he was forced to resign because of CNN’s reports and that he has received “multiple vile and hateful telephone calls.”  The case is Carbone v. Cable News Network, Inc., Case No. 1:16-cv-01720-ODE in the Northern District of Georgia.

Like many states, Georgia has an anti-SLAPP statute (O.C.G.A. § 9-11-11.1), which applies to suits against “a person or entity arising from an act . . . which could reasonably be construed as an act in furtherance of the person’s or entity’s right of petition or free speech . . . in connection with an issue of public interest or concern.”  Under that law, the person or entity being sued can then strike the claim unless the court determines that the nonmoving party has established that there is a probability that it will prevail on the claim.

Carbone raised a number of arguments opposing CNN’s motion.  Most notably, however, he argued that the anti-SLAPP law is a procedural device that was inapplicable in federal court.  Given the importance of this issue – particularly in the communication, publication, media, and entertainment fields – a number of entities, including the MPAA, filed amicus briefs in favor of CNN’s position.


In considering Carbone’s argument, the court looked to Federal Rule of Civil Procedure 12(b), which governs motions to dismiss in federal court.  The court determined that the federal statute “answers the question in dispute, namely the necessary pleading standard for the Plaintiff to maintain his case at this stage.”   Citing the Supreme Court’s interpretations of Rule 12(b)(6)’s “failure to state a claim upon which relief can be granted” in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the court found that Rule 12(b) “directly conflicts with Georgia’s anti-SLAPP statute” by “essentially creat[ing] a Rule 12(b)(6) ‘plus’ standard for cases with a First Amendment nexus.”

The court reasoned that while Rule 12(b)(6) requires “plausibility” on the face of the complaint, the anti-SLAPP law requires a “probability of prevailing.”  “The Supreme Court has been clear that ‘[a]sking for plausib[ility] . . does not impose a probability requirement at the pleading stage’ ‘[a]nd, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that recovery is very remote and unlikely.”’” (Opinion, page 6 (quoting Twombly).)  The court thus reasoned that Georgia’s anti-SLAPP law created an additional hurdle for plaintiffs in federal court, and was in conflict and could not co-exist with Rule 12.

The court rejected CNN’s Motion to Strike, finding the anti-SLAPP law inapplicable.  It likewise rejected CNN’s Motion to Dismiss, finding that Carbone had met the pleading standard to maintain a claim for defamation.  On February 21, CNN appealed the court’s decision to the Eleventh Circuit.  As of March 9, the case is stayed pending the outcome of that appeal.

The Current Circuit Split And Newsham

There is circuit split on this issue.  The First, Fifth, and Ninth Circuits have all applied state anti-SLAPP laws in federal court, while the D.C. Circuit refused to do so.  The Carbone court sided with the latter.

In U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999), the Ninth Circuit found that California’s anti-SLAPP statute applied in federal court.  It reasoned that the statute did not “result in a ‘direct collision’ with the Federal Rules” and that the laws “‘could exist side by side … each controlling its own intended sphere of coverage without conflict.’”  Id. (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749-750 and 752 (1980)).  As the Ninth Circuit explained:

LMSC correctly points out that the Anti–SLAPP statute and the Federal Rules do, in some respects, serve similar purposes, namely the expeditious weeding out of meritless claims before trial. This commonality of purpose, however, does not constitute a “direct collision”—there is no indication that Rules 8, 12, and 56 were intended to “occupy the field” with respect to pretrial procedures aimed at weeding out meritless claims. . . .  The Anti–SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules: the protection of “the constitutional rights of freedom of speech and petition for redress of grievances.”

Id. at 972–73.  Given the absence of “direct collision” between the laws, the Newsham court made the “‘typical, relatively unguided Erie choice’” and found that the appellant “ha[d] not identified any federal interests that would be undermined by application of the anti-SLAPP provisions urged by the relators here.”  Id. at 973 (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)).  “On the other hand, . . . California has articulated the important, substantive state interests [of protecting the constitutional rights of freedom of speech and petition] furthered by the Anti-SLAPP statute.”  Id.  The Ninth Circuit thus found that the statute applied in federal court.

Which Way Will The Eleventh Circuit Go?

CNN has appealed the district court’s order, and the Eleventh Circuit will need to decide if it agrees with the D.C. Circuit or the First, Fifth, and Ninth Circuits.

Anti-SLAPP laws are powerful tools for defendants, especially those in the communication, publication, media, and entertainment realms.  Not only do they present a way for defendants to attack pleadings early in the case, they do so using the “probability of prevailing” standard and normally permit a successful defendant to recover its attorneys’ fees and costs.  See, e.g., Cal. Code Civ. Proc. § 425.16(c)(1); O.C.G.A. 9-11-11.1(b.1).  California, like Georgia and many other states, expressly affirms its interest in protecting the constitutional rights of free speech and petition in the text of the anti-SLAPP statute.  See Cal. Code Civ. Proc. § 425.16(a); O.C.G.A. 9-11-11.1(a).

The question of whether those laws apply in federal court is therefore a significant one.  If, for example, a plaintiff can avoid an anti-SLAPP law by suing in one federal court versus another, that could lead to forum shopping.

Stay tuned for updates.

The California Court Of Appeal Weighs In: The Development And Production Of An Entertainment Program Is Protected Under The Anti-SLAPP Statute

In a recent 50-page published opinion, the California Court of Appeal determined that offensive and derogatory language on a movie set was protected activity under the anti-Strategic Lawsuit Against Public Participation (or anti-SLAPP) statute because the conduct was part of the behind-the-scenes process for making a movie.

The case pitted Marlon Wayans – an actor who wrote and starred in the comedy A Haunted House 2 – against an extra on the film named Pierre Daniel.  Daniel brought a harassment suit against Wayans and others involved in the production, alleging that he was subjected to offensive and racially charged language on the set and in a tweet that compared Daniel to the cartoon character of Cleveland Brown (originally from the television program Family Guy).

A majority panel of the Court of Appeal of the State of California, Second Appellate District, affirmed the lower court’s dismissal of Daniel’s lawsuit and struck down claims of racial harassment, misappropriation of likeness, false light, and intentional infliction of emotional distress under California’s anti-SLAPP statute.

The California Appellate Court Concluded That The Anti-SLAPP Statute Applied To The Plaintiff’s Claims

Wayans brought the motion to strike under Section 425.16 of the California Code of Civil Procedure, arguing that the plaintiff’s claims were based on activity protected by the anti-SLAPP statute.  Section 425.16 delineates the categories of “protected activity” under the anti-SLAPP statute, including “conduct in furtherance of the exercise of the … constitutional right of free speech in connection with a public issue or an issue of public interest.”  Cal. Civ. Proc. Code § 425.16(e)(4).

Prior California precedent served as a guide for the Court’s reasoning.  In Tamkin v. CBS Broad. Inc., 193 Cal. App. 4th 133, 142-43 (2011), the Court held that the defendants’ acts, which allegedly included using the plaintiffs’ actual names in a draft of an episode of the television show CSI, and dissemination of synopses based on this draft to casting agencies, were acts in furtherance of the defendants’ right of free speech.  The Court reasoned that, because the acts “helped to advance” the creation of a television show – itself an exercise of free speech – defendants’ acts were “protected activity.”  Id.  Here, Wayans contended that the alleged comments and activity played a role in the movie’s creative process.  For example, he claimed that some of the alleged racially charged language assisted in adding to the film’s improvisational comedy and dialogue.  Thus, Wayans asserted that the acts helped to advance the movie’s development – and therefore implicated his constitutional free speech rights.

The Court found that all of the alleged misconduct was based “squarely” on Wayans’ exercise of free speech – the creation and promotion of a full-length film, including the off-camera development process.  This was true even for comments made off-camera that did not involve the plot of the movie itself, the Court reasoned.

In determining that the complaint was subject to an anti-SLAPP motion, the Court found that the public interest requirement was satisfied as well – i.e., that the speech-related conduct was “in connection with … an issue of public interest.”  An “issue of public interest” under the anti-SLAPP statute is simply “any issue in which the public is interested.”  Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008); Tamkin, 193 Cal. App. 4th at 143.  The issue does not need to be “significant” to be protected by the anti-SLAPP statute; it is enough that it is one in which the public takes interest.  Tamkin, 193 Cal. App. 4th at 143.  Citing the “longevity and breadth” of Wayans’ acting career and calling him a “popular and prolific entertainer,” the Court reasoned that the very making of A Haunted House 2 was “an issue of public interest.”

As such, the Court found that prong one of the anti-SLAPP statute was easily satisfied.

Plaintiff Failed to Meet Prong 2 of the Anti-SLAPP Statute

After determining that the alleged misconduct was a protected activity under the anti-SLAPP statute, the Court then reasoned that Daniel failed to satisfy prong 2 – he had failed to meet his burden to show a reasonable probability of success on his claims.  Specifically, the Court found that Daniel failed to demonstrate that the alleged acts of harassment created an abusive environment under the California Fair Employment and Housing Act.

As for the other claims, the Court affirmed the lower court’s decision on the misappropriation of Daniel’s name and likeliness, finding that he waived that claim by signing a broad release that permitted the use of his image in connection with promoting the movie.

The Court also found that Daniel could not prevail on his false light and intentional infliction of emotional distress causes of action.  The Court’s reasoning with respect to those claims can be found here.