• In case arising from disclosure of the identity of a former prison gang member and police informant in the documentary television series Gangland, Ninth Circuit affirms in part and denies in part district court’s denial of defendants’ anti-SLAPP motion to strike, finding that California’s anti-SLAPP statute applied to plaintiff’s lawsuit, and that (i) plaintiff met his burden to show a probability of prevailing on his claims for public disclosure of private fact, intentional infliction of emotional distress, false promise and declaratory relief, but (ii) plaintiff failed to establish a probability of prevailing on his claims for appropriation of likeness and negligent infliction of emotional distress, and thus those claims were stricken.

Plaintiff, a former prison gang member and police informant, sued defendants, Gangland Productions, Inc., and A&E Television Network, for including footage of an interview with him in an episode of the television series Gangland without concealing plaintiff’s face or physical identity. Gangland was a documentary television program that explored gang culture, and the episode in question focused on a notoriously violent gang with a white-supremacist reputation, Public Enemy Number 1. Although plaintiff had never been a member of Public Enemy Number 1, he was a childhood friend of one of the co-founders of the gang and, in the interview, he discussed the facts surrounding his friend’s murder, including the theory that fellow gang members had brutally murdered him after he gave a media interview about the gang. The episode featured other gang members discussing the gang’s violent activities. In the broadcast, some individuals’ names and faces were disclosed while certain others’ were concealed. 

Plaintiff alleged that he had received assurances that his face and identity would be fully concealed and that he relied on those promises in agreeing to be interviewed. Prior to taping the interview, plaintiff signed a Program Participation and Release Agreement that defendants argued expressly consented to their unrestricted use of his name and identity and waived his right to any claims based on that use. Plaintiff asserted that he was dyslexic and barely literate and that he signed the release because the interviewer misled him about the document’s nature. Specifically, he claimed that he was led to believe that the release was simply a receipt for the $300 defendants paid him for the interview. 

Plaintiff’s first amended complaint asserted six claims based on defendants’ disclosure of his face and name, including appropriation of likeness, public disclosure of private information, false promise, negligent infliction of emotional distress, intentional infliction of emotional distress and declaratory relief. The district court denied defendants’ motion to strike plaintiff’s complaint under California’s statute addressing Strategic Lawsuits Against Public Participation (Anti-SLAPP statute), finding that defendants had failed to show that revealing plaintiff’s identity in violation of an alleged promise not to do so – the basis for plaintiff’s claims against them – was in furtherance of their exercise of free speech or that including plaintiff’s identity in the program was in connection with a public issue or an issue of public interest. (Read our summary of the district court’s decision here.

On appeal, the Ninth Circuit rejected the district court’s Anti-SLAPP analysis, concluding that the district court framed the initial inquiry in the required two-step analysis too narrowly. The defendant initially bears the burden of showing that the Anti-SLAPP statute applies because the lawsuit arises from defendant’s act in furtherance of its right of petition or free speech. If the defendant meets its burden, the burden then shifts to plaintiff to demonstrate a probability of prevailing on the merits of each of plaintiff’s claims. In the court’s view, the district court improperly focused on plaintiff’s allegations while conducting the initial, defendant-focused analysis. The proper analysis should examine the broadcast overall, rather than erroneously focus on the legality or propriety of including plaintiff’s face in the broadcast. Noting that the district court’s approach would render the second step “superfluous,” the Ninth Circuit reasoned that for purposes of the initial analysis, the inquiry should focus on the legitimate First Amendment rights attached to the broadcast overall. Citing a number of cases, the panel noted that a broadcaster or journalist may satisfy its burden for Anti-SLAPP purposes even if the broadcast involved illegal elements (such as including information unlawfully obtained). Noting that it was “uncontested” that the broadcast itself was protected, the Ninth Circuit concluded that the district court erred in narrowing its analysis to require that the specific inclusion of plaintiff’s face and identity further the public interest. 

Having concluded that defendants satisfied the first step of the analysis, the panel proceeded to consider the viability of each of plaintiff’s claims. The Ninth Circuit noted that, under the appropriate standard for evaluating plaintiff’s claims, the court should not engage in credibility determinations but instead credit the evidence as presented by plaintiff. Plaintiff provided a sworn declaration that he was barely literate and was misled about the content of the release – that he had been told that it was simply a “receipt” for the $300 he received for the interview. The court viewed this evidence as sufficient, at this stage in the proceedings, to establish fraud in the execution of the release, which would render the release void. As a result, the court was unwilling to find that defendants’ release operated as a waiver of any claims plaintiff might have related to the use of his image in the broadcast. 

The court found that plaintiff has shown a reasonable probability of prevailing on four of his claims (public disclosure of private fact, intentional infliction of emotional distress, false promise, and declaratory relief) but not on his claims for appropriation of likeness and negligent infliction of emotional distress. The Ninth Circuit accordingly reversed in part and affirmed in part the district court’s ruling, remanding for further proceedings on the four claims surviving the Anti-SLAPP analysis.