California Court of Appeal, Fourth Appellate District, May 18, 2009 (not for publication)  

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California appeals court affirms denial of television network’s motion to strike defamation and invasion of privacy complaint; although California Anti-SLAPP statute allows a defendant to strike a complaint that is based on actions protected by First Amendment, in this case gravamen of complaint is the false portrayal of plaintiff as AIDS sufferer and intravenous drug user  

The California Court of Appeals upheld the trial court’s denial of A & E Television Networks’s special motion to strike plaintiff’s complaint for defamation, invasion of privacy, intentional infliction of emotional distress, and injunctive relief under the Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. A & E produced, broadcasted, and released on DVD a documentary called The History of Sex which includes a discussion of the HIV/AIDS epidemic. A picture of plaintiff on the street at night shaking what appears to be a cup and nodding at people walking by is featured while the narrator states: “AIDS had exacted a deadly toll on gay men and [intravenous] drug users . . .”

The Anti-SLAPP statute states: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” To prevail on an Anti-SLAPP special motion to strike, 1) the defendant must prove the challenged cause of action arose from protected activity, in furtherance of defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue, and 2) the court must determine whether the plaintiff has demonstrated a probability of prevailing on the claim.

The court held that the “principal thrust or gravamen” of the claim determines whether the Anti-SLAPP statute applies, and a court must focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it. A & E argued that the act was the “exercise of their free speech rights on an issue of clear public interest, the AIDS epidemic.” Plaintiff asserted that the act was “[A & E] . . . stating (by clear implication) that he is a homosexual or an intravenous drug user and that he suffers from AIDS.” Plaintiff claimed this latter point was not a matter of public interest and should not be protected by the Anti-SLAPP statute. The trial court denied the motion to strike and the appeals court affirmed, holding that although A & E’s documentary was clearly a matter of public interest, A & E’s act of speaking on the AIDS epidemic is not the principal thrust or gravamen of plaintiff’s complaint; the principal thrust or gravamen is the allegedly false portrayal of plaintiff as an intravenous drug user and HIV/AIDS sufferer, which is not a matter of public interest