USDC C.D. California, August 1, 2011

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  • District court denies defendants’ motion to strike under California’s Anti-SLAPP statute, holding that defendants failed to show that disclosing plaintiff's gang nickname and face in their documentary was in furtherance of the exercise of their constitutional right of free speech in connection with a public issue or an issue of public interest.

Plaintiff, a former prison gang member, sued defendants, Gangland Productions, Inc., and A&E Television Network, for showing his face and identifying his gang nickname in an episode of the television series Gangland, in which clips from a taped interview he gave about his previous gang were used. The program was a documentary television show that explored a gang with a white-supremacist reputation similar to plaintiff's former gang. Among the topics plaintiff discussed in the interview were the facts surrounding the murder of a former gang member, including the theory that he was killed by his own gang because he gave an interview about the gang to the media. Plaintiff alleged that he only agreed to be interviewed in reliance on defendants’ promise to conceal his identity and that the woman who interviewed him assured him that his identity would be concealed. 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 signed the release because the interviewer misled him, assuring him it was just 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 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 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.

California enacted its Anti-SLAPP statute to address lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The statute provides for a special motion to strike a cause of action “arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue … unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Defendants filing an Anti-SLAPP motion to strike must make an initial showing that the plaintiff's suit arises from an act in furtherance of defendants’ right of petition or free speech. Once the defendants make that showing, the burden shifts to the plaintiff to establish a probability that it will prevail on its claim.

The court concluded that defendants failed to show that revealing plaintiff's identity was in furtherance of their exercise of free speech. Defendants argued their disclosure of plaintiff’s identity fell within the statute's protection for “other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Specifically, they argued that subject of the television program — gang activity in southern California and the killing of a gang-affiliated police informant — was in connection with an issue of public interest and that their creation of the program was an exercise of free speech. Defendants also argued that their disclosure of plaintiff's identity was in furtherance of that free speech and that plaintiff's claims were complaints about the content of the program.

Plaintiff argued that the proper analysis under the Anti-SLAPP Statute was whether the principal thrust of the claims arose from protected speech. The thrust of his claims were that defendants should have kept their promise and not disclosed his identity. While not disputing that the television program discussing gang-related activity is "in connection with a public issue or an issue of public interest," plaintiff argued that the disclosure of his identity was not, and had defendants concealed his identity, as they had with two other interviewees in that episode, the protected content of the program would not have been affected. The court acknowledged that defendants' television show about gang violence – a generally protected activity – “lurk[ed] in the background” of plaintiff's claims, but held that background activities don’t define the "principal thrust" of the claim for relief.

The court rejected defendants' argument that a broad reading of the statute required that "any communicative activity” would be protected, reasoning that to so hold would be contrary to the California legislature's intent and would “prop[] open floodgates that would drown the courts in the waters of anti-SLAPP litigation.”

After discussing two lines of California appellate cases with differing tests for establishing whether a statement was “in connection with a public issue or an issue of public interest,” the court declined to choose one test over the over, finding instead that defendants’ disclosure of plaintiff's identity during the episode failed both tests. Defendants' revelation of plaintiff's identity was not in connection with a public issue or an issue of public interest, even though the court agreed with defendants’ argument that the subject matter of their program was of public interest. Even if viewers of the program were curious about plaintiff's identity, curiosity does not make its disclosure of public interest. Plaintiff's identity was not of concern to a substantial number of people, even if gang activity in southern California is, and the challenged statement – the disclosure of plaintiff's identity – and defendants' asserted public interest – gang violence – were not closely related. The court agreed with plaintiff that the absence of his identity from the show would not have impacted the content or defendants' ability to communicate their protected speech. The public's knowledge of plaintiff's identity would not improve the general knowledge of gang-related activity and defendants also could not turn otherwise private information into a matter of public interest by broadcasting the information to a large number of people.

Finding that defendants had failed to meet their burden under the Anti-SLAPP statute, the court concluded that it need not determine plaintiff's probability of prevailing on his claims.