A federal court judge in California sided with Lance Armstrong and dismissed a class action that alleged he falsely advertised in his autobiographies that he never took performance-enhancing drugs.
In the January 2013 complaint filed after Armstrong confessed to years of doping, class members said they never would have purchased his books – including It’s Not About the Bike and Every Second Counts – if they knew the story was a “fairy tale.” The suit also challenged the marketing materials and other promotional efforts accompanying the books, which the class contended should be classified as unprotected commercial speech.
But U.S. District Court Judge Morrison C. England ruled otherwise, granting Armstrong’s anti-SLAPP (“strategic lawsuits against public participation”) claim in his motion to dismiss. California’s anti-SLAPP law is designed to prevent meritless suits that seek to chill the valid exercise of speaking out on issues of public interest.
Armstrong’s books – first his autobiographies, followed by three others – constituted conduct in furtherance of the exercise of his First Amendment rights, the court said. As a person in the public eye and a topic of widespread public interest, Armstrong’s writings about his life, image, cycling career, and doping were directly connected to the interest about him.
Anti-SLAPP protection does extend to illegal acts committed by defendants. The court concluded, however, that Armstrong’s lies about his use of performance-enhancing drugs did not amount to illegal conduct that would not be shielded by the anti-SLAPP statute. “Plaintiffs fail to provide conclusive evidence that the conduct at issue – Armstrong’s statements that he did not dope, the content of the book, and the promotional materials for the book – is criminally illegal,” the court said. Although the plaintiffs pointed to Armstrong’s smuggling or trafficking of drugs, “drug trafficking and criminal conspiracy is simply not the conduct at issue in this case. The conduct at issue is the speech about the book and Armstrong’s speech about whether he used drugs. Armstrong’s lies about his use of drugs are simply not criminal conduct.”
The putative class members also failed to establish a likelihood of success on their claims, as required by the statute. Statements contained within the books were not commercial speech, the court said, and therefore entitled to the full protection of the First Amendment. In declining to find that Armstrong himself was a “brand” or “product,” the court ruled that his public statements denying his use of drugs were also noncommercial. Finally, the promotional statements relating to Armstrong’s books – despite the court’s determination that they contained “mixed content” of both a commercial and noncommercial nature – were also entitled to free speech protections because they were “inextricably intertwined” with the otherwise fully protected speech.
“The economic reality in this age of technology is that publishing companies and authors must promote the books they publish and write in order to sell them, if publishing houses are to continue to operate and books are to continue to be sold in paper and hard copies,” the judge wrote. The judge found hard to separate the promotional materials for the books from the books themselves. “As such, the promotional materials relating to the books are inextricably intertwined with the books’ contents, which is non-commercial speech. Thus, these promotional materials are also entitled to full First Amendment protection as non-commercial speech.”
Fraud claims similarly did not pass judicial muster. “Plaintiffs here provide absolutely no authority for the notion that the words ‘biography’ and ‘nonfiction’ are guarantees that the work contains only statements that are one hundred percent factual,” Judge England wrote. “Indeed, speaking about oneself is precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts, or tell tall tales.”
To read the decision in Stutzman v. Armstrong, click here.
Why it matters: When balancing the First Amendment and public interest in protecting consumers from books containing false statements, Judge England swung toward “guarding the right to free speech and the free flow of ideas.” He did, however, grant the plaintiffs leave to amend their complaint.