Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer 🌞! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.

Saturday, May 23, 2020

Anti-SLAPP slaps justice, but Richard Simmons survives dismissal in privacy suit over tracking device

Sensational Simmons in 2011
(Angela George CC BY-SA 3.0)

In telephone consultation with an attorney-colleague just the other day, I had occasion to climb onto my soapbox and preach my anti-anti-SLAPP gospel.  I'm not sure when he hung up, but I kept preaching, because it's about the message, not the audience.

And then as if to say to me, "you go, girl," Richard Simmons popped up in my newsfeed.  More on that in a minute.

'Anti-SLAPP'

Anti-SLAPP is a mostly statutory court procedure meant to diffuse "strategic lawsuits against public participation," that is, essentially, to dispose quickly of lawsuits that are meant principally to harass a defendant who is participating in public life in a way protected by the First Amendment, namely, speaking or petitioning.

The prototype case is a land developer who sues environmental protestors for a tort such as interference with contract.  An anti-SLAPP statute allows the protestor-defendant to obtain a quick dismissal, because the plaintiff knows the protestor is not a business competitor, and the plaintiff's true aim is harassment via tort litigation.  Anti-SLAPP may be useful if, say, and I'm just spitballing here, you're a sexual assault complainant suing a politician with a habit of counterclaiming for defamation.  But the far more common use of anti-SLAPP motions is when a mass-media defendant is sued for, well, anything.

The communications bar loves anti-SLAPP.  And what's not to love?  What anti-SLAPP statutes demand varies widely across the states.  A defendant's anti-SLAPP motion might require only that the plaintiff re-submit the complaint under oath, or more aggressive statutes demand that the court hold a prompt hearing and dismiss the complaint if the plaintiff cannot show probability of success on the merits, a stringent pretrial standard reserved usually for preliminary injunctions.  Whatever the statute requires, the universal takeaway is that the blocking motion is good for the defense, providing another way to slow down litigation and require more money, time, and exertion by the plaintiff—who, let's not forget, usually is a victim of injury, even if the injury has not yet been adjudicated to be the fault of the defendant.

My problems with anti-SLAPP are legion, not the least of which is that the communications defense bar hardly needs a new defense at its disposal.  We already have the most overprotective-of-free-speech tort system in the world.   Without diving deep today, it will suffice to say that my opposition to anti-SLAPP fits neatly into my broader position that the famous civil rights-era innovation in First Amendment law embodied in New York Times v. Sullivan (U.S. 1964) should rather be described as an infamous and pivotal turn down a wrong and dangerous road, which is why courts around the world have widely rejected the case's central holding.  My position makes me about the most despised person at any communications defense bar conference, so I mostly skip the social events, after I've redeemed my free drink tickets.

Along Came Richard Simmons

When I talk about the abusive deployment of anti-SLAPP, I'm usually talking about the plaintiff's inability to prove Sullivan "actual malice," which, as a subjective standard, requires evidence of the defendant's state of mind.  In an especially wicked cruelty, a typical anti-SLAPP motion requires the plaintiff to show likelihood of success in proving defendant's actual-malicious state of mind before the plaintiff is allowed to use litigation discovery to collect evidence—all of which remains in the defendant's possession.

Bastion of the First Amendment
(2015 image by Mike Mozart CC BY 2.0)
So the rules of the game in First Amendment defamation are first rigged against the plaintiff, and then, when the plaintiff dares to complain anyway, we punish the audacity.  Rubbing salt into the wound, anti-SLAPP laws may also then require the plaintiff to pay the corporate media defendant's legal fees, a bankrupting prospect for the everyday-Joe plaintiff who might have been victimized by the careless reporting of a profits-churning transnational news company.

What I don't usually talk about is the kind of thing that apparently happened lately to Richard Simmons.  The once-and-future fitness guru—don't miss Dan Taberski's podcast Missing Richard Simmons (e1), which, however "morally suspect," might be my favorite podcast ever—alleged in a California invasion-of-privacy lawsuit that celebrity gossip rag In Touch Weekly hired someone to put a tracking device on Simmons's car.  As media, do, and maybe now you to start to see the problem, In Touch Weekly asked for dismissal under California's powerful anti-SLAPP statute, putting to the test Simmons's audacious challenge to the shining gold standard of American journalism.

Fortunately in this case, a trial judge, and this week a California court of appeal, held that news-gathering through trespass, or intrusion, is not what anti-SLAPP is made to protect.  Correspondingly, there is no First Amendment defense to the tort of invasion of privacy by intrusion.  So Simmons's case may resist anti-SLAPP dismissal.

Also fortunately, Richard Simmons has the financial resources and determination to fight a strong invasion-of-privacy case all the way through an appeal before even beginning pretrial discovery.  This isn't his first rodeo.  Richard Simmons is a survivor.

Someone needs to give Richard Simmons a law degree, and one day I won't feel so alone at the comm bar cocktail party.

The case is Simmons v. Bauer Media Group USA, LLC, No. B296220 (Cal. Ct. App. 2d App. Dist. 4 Div. May 21, 2020).  Parent-company Bauer Media Group, by the way, owned the gossip magazines that lost to Rebel Wilson in her landmark Australian defamation case.

Now move those buns.

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