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Mark Goldowitz, # 96418 California Anti-SLAPP Project 1611 Telegraph Ave., Suite 1200 Oakland, California 94612 Phone: (510) 835-0850 x 305 Fax: (510) 465-1985 Special Counsel for Defendant Ilena Rosenthal SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF ALAMEDA Case No. 833021-5 STEPHEN J. BARRETT, M.D., TERRY POLEVOY, M.D., CHRISTOPHER E. GRELL, Plaintiffs, vs. HULDA CLARK, TIM BOLEN, JAN BOLEN, JURIMED, DR. CLARK RESEARCH ASSOCIATION, DAVID P. AMREIN, ILENA ROSENTHAL, AND DOES 1 TO 100 Defendants Case No. 833021-5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ROSENTHAL’S SPECIAL MOTION TO STRIKE PLAINTIFFS’ COMPLAINT AS A SLAPP Date: May 30, 2001 Time: 2 p.m. Dept: 31 TABLE OF CONTENTS INTRODUCTION I. FACTUAL BACKGROUND II. THE COMPLAINT IS SUBJECT TO THE ANTI-SLAPP LAW A. The California Anti-SLAPP Law Was Enacted to Protect the Fundamental Constitutional Rights of Petition and Speech and Is to Be Construed Broadly B. The Allegations of the Complaint Are Covered by C.C.P. � 425.16, Because They Arise from Defendant’s Acts in Furtherance of Her First Amendment Rights to Petition the Government and to Speak out on Public Issues 1. The Allegations in the Complaint 2. The Complaint Arises from Petition and Petition-Related Activity 3. The Complaint Also Arises from Speech and Petition Regarding an Issue of Public Interest III. PLAINTIFFS CANNOT ESTABLISH A PROBABILITY OF PREVAILING ON THEIR CLAIMS A. Most of the Allegations of the Complaint, Including All of Plaintiff Grell’s Allegations, Do Not Involve Defendant Rosenthal B. Defendant’s Posting of Statements by Others Is Protected by Federal Law C. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected Because They Do Not Contain Provably False Assertions of Fact D. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected by the First Amendment, Because Plaintiffs Are Public Figures and Defendant’s Statements Were Not Made with “Actual Malice” 1. Plaintiffs Barrett and Polevoy Are Public Figures 2. Defendant’s Statements Were Not Made with “Actual Malice” E. Defendant’s Statements About Plaintiffs Barrett and Polevoy Are Also Protected by the Common Interest Privilege CONCLUSION INTRODUCTION. Defendant Ilena Rosenthal has been working diligently on behalf of women who have been harmed by breast implants. In the process, she became aware that plaintiffs Barrett and Polevoy had been publishing criticisms of alternative health practices which she believes have helped women suffering from serious health effects of breast implants. In the best tradition of the First Amendment and the Internet, Rosenthal voiced her opinions of said plaintiffs’ positions and campaigns on the Internet. Her statements are protected by the First Amendment, federal, and state law. This lawsuit should be dismissed as a meritless SLAPP (Strategic Lawsuit Against Public Participation). I. FACTUAL BACKGROUND. Defendant Ilena Rosenthal was a successful businesswoman who, in the mid 1990′s, became increasingly concerned about health problems caused by breast implants. After exhaustive study of the issue, she became convinced that hundreds of thousands of women were having their health and well-being threatened by what she came to believe was a very dangerous practice. She also came to appreciate the value of “alternative” medicine in helping such women. In response, she created what has become the world’s largest support group for people harmed by breast implants and other silicone products. She set up an Internet “newsgroup” on the topic, and created an email support list, which has several thousand readers. She has written and spoken out about the dangers of breast implants. (Rosenthal Decl., �� 2-9, 11-14.) In her research, Rosenthal has become aware that silicone manufacturers have sponsored aggressive public relations efforts to hide the true risks of breast implants. Rosenthal also became aware of the activities of plaintiffs Barrett and Polevoy, who have become highly visible as self-proclaimed “quackbusters,” running websites and seeking other publicity for their criticisms of alternative medicine. Barrett in particular has denied the existence of “Multiple Chemical Sensitivity,” which has been experienced in disproportionate numbers by women with breast implants, and he has labelled as a “quack” respected medical practitioners who had personally helped women Rosenthal knew, as well as widely respected health professionals such as Drs. Andrew Weil and Linus Pauling. (Rosenthal Decl., �� 15-21, 42-43.) Rosenthal has become an outspoken critic of Barrett and Polevoy, because she sees their high-profile “quackbusters” campaign and their attempts to discredit those with whom they disagree as a threat to medical freedom. In the best tradition of the First Amendment, Rosenthal posted to Internet newsgroups dealing with health and medicine criticisms by her and others of Barrett and Polevoy. She has thrown back at Barrett and Polevoy their favorite epithet — “quack” –, and has called Barrett a “bully” and “arrogant.” She said that Barrett’s threat to sue her unless she paid him off for posting statements critical of him was an effort to “extort” her. (Rosenthal Decl., �� 22, 27, 29, 47.) In response, plaintiffs, quick to label as “quacks” those with whom they disagree, filed this defamation suit against Rosenthal and other critics. Yet, as discussed below, plaintiffs’ claims against Rosenthal are entirely without merit. All of Rosenthal’s posts are protected by the First Amendment, federal, and/or state law. Plaintiffs’ suit against Rosenthal is a meritless SLAPP. Thus, Rosenthal brings this special motion to strike the Complaint. II. THE COMPLAINT IS SUBJECT TO THE ANTI-SLAPP LAW. A. The California Anti-SLAPP Law Was Enacted to Protect the Fundamental Constitutional Rights of Petition and Speech and Is to Be Construed Broadly. The California Supreme Court has stated that “because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable.” ( Good Government Group of Seal Beach v. Superior Court (1978) 22 Cal.3d 672, 685.) In 1992, in response to the “disturbing increase” in meritless lawsuits brought “to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances,” the Legislature overwhelmingly enacted California�s anti-SLAPP law, Code of Civil Procedure section 425.16, to protect against these SLAPPs. [FN 1] (Subsequent section references herein are to the Code of Civil Procedure unless otherwise indicated.) The anti-SLAPP law was enacted to facilitate “a fast and inexpensive dismissal of SLAPP’s.” ( Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823.) Such speedy dismissal also serves the ends of judicial economy, by reducing the time and resources that courts and litigants must spend on meritless SLAPPs. [FN 1] Subdivision (a) of section 425.16, as amended in 1997, provides: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.” To invoke the protection of the anti-SLAPP statute, a defendant must merely make a prima facie showing that plaintiffs’ cause of action arises from any act of the defendant in furtherance of the right of petition, and/or the right of free speech in connection with a public issue. (� 425.16, subd. (b)(1); [FN 2] Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 819-821.) [FN 2] Subdivision (b)(1) provides: “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 plaintiff has established that there is a probability that plaintiff will prevail on the claim.” In 1997, the Legislature unanimously amended the anti-SLAPP statute to mandate expressly that it “shall be construed broadly.” (Stats. 1997, ch. 271, 1; amending � 425.16, subd.(a).) In 1999, the Supreme Court issued its first opinion construing the anti-SLAPP law, directing that courts, “whenever possible, should interpret the First Amendment and section 425.16 in a manner ‘favorable to the exercise of freedom of speech, not to its curtailment.’” ( Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1119, quoting Bradbury v. Superior Court (1996) 49 Cal.App.4th 1170, 1176.) B. The Allegations of the Complaint Are Covered by C.C.P. � 425.16, Because They Arise from Defendant’s Acts in Furtherance of Her First Amendment Rights to Petition the Government and to Speak out on Public Issues. Subdivision (e) of the anti-SLAPP statute defines the types of acts covered by the law by setting forth four illustrations of acts covered: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any 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. 1. The Allegations in the Complaint. Plaintiffs’ complaint (“Complaint”) contains three causes of action: for libel, libel per se, and conspiracy. As discussed below, all of these causes of action arise from defendant’s petition, petition-related, and speech activity that is covered by the anti-SLAPP law. The Complaint contains many allegations which assert that “defendants” (without specifying which ones) made specific statements. However, the only allegations in the Complaint which specifically allege that defendant Rosenthal made specific statements are the following: On June 28, 2000, she posted a message to a newsgroup containing the false statement that Dr. Barrett had “bunches of $$$$ coming to him to run” his website. (Complaint, � 37.) She “repeatedly posted” “at least one libelous” message to newsgroups. (Id., � 18.) Presumably this refers to the following message discussed in �� 35-36 of the Complaint: Shortly after August 14, 2000, she republished to two Usenet newsgroups messages “accusing Dr. Polevoy of stalking women and urging ‘health activists … from around the world’ to file complaints to government officials, media organizations, and regulatory agencies.” (Id., �� 35-36.) She “posted messages about Dr. Barrett’s threat [to sue her for the allegedly defamatory messages she had posted] accompanied by a copy of the libelous message.” (Id., � 36.) On or about August 18, 2000, she posted to a newsgroup a message falsely stating that “Quackwatch appears to be a power-hungry, misguided bunch of pseudoscientific socialistic bigots,” is an “industry funded organization,” and is being sued by many doctors and health organizations. (Id., � 38.) On October 9, 2000, she posted a message to a newsgroup which referred to Drs. Barrett and Polevoy as “quacks.” (Id., � 39.) The above allegations are contained in the first cause of action, and are incorporated by reference in the second and third causes of action. (Id., �� 49, 54.) 2. The Complaint Arises from Petition and Petition-Related Activity. The messages (1) urging health activists to file complaints to government officials and regulatory agencies (id., �� 35-36), (2) discussing Barrett’s threat to sue her (id., � 36), and (3) stating that Quackwatch is being sued by many doctors and health organizations (id., � 38) are covered under the anti-SLAPP law as “[statement[s] … made before … [an] executive, or judicial proceeding, or any other official proceeding authorized by law,” under 425.16(e)(1), and/or as “statement[s] … made in connection with an issue under consideration or review by …[an] executive, or judicial body, or any other official proceeding authorized by law,” under � 425.16(e)(2). ( Dove Audio v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784 [� 425.16 covers letters soliciting support for administrative complaint as "communications preparatory to or in anticipation of the bringing of an action"]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1110, 1114-1115 [covers statements relating to judicial or official proceedings]; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043 [covers newspaper articles regarding a state investigatory audit]; Lafayette Morehouse v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863 [covers newspaper articles related to board of supervisor hearings and related litigation]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 [covers letter regarding pending lawsuit]; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 821-822 [covers letter soliciting financial support for lawsuit]; eCash Technologies v. Guagliardo (C.D.Cal., 2000) 127 F.Supp.2d 1069, 1077, 1083-1084 [covers letter discussing pending litigation].) [FN 3] [FN 3] A number of other alleged statements which the Complaint attributes to “defendants” generally (but not to defendant Rosenthal specifically) are also covered as petition or petition-related activity under � 425.16(e)(1) and/or (2), including the following: that Grell filed a false report with the FBI (Complaint, � 21(c)); that Barrett has been de-licensed, was disqualified as an expert witness, has violated a federal judge�s injunction, is being investigated by his local police department and district attorney, and brought and/or filed false criminal charges (id., �� 21(a), (j), (q), (t), & (v)); that Polevoy’s medical license should be revoked or suspended, a complaint was filed against him with the FBI’s hate crimes unit, Christine McPhee had to call the police on him for stalking, police reports show that he stalked other females, his website generated too many lawsuits for its hate information and distortions, he should be investigated for violating the Health Professions Procedural Code, and a criminal investigation of “Canadian Quackwatch” should begin immediately (id., � 26(i), (k) – (m), (t) – (w)); that state medical boards are serving the needs of Quackbusters and their paymasters (id., � 27(g)); and that Grell is a courtroom dimwit, filed a lawsuit in the wrong state and in the wrong country, is incompetent at writing lawsuits, filed a false FBI complaint against Clark, and the State Bar should hold a hearing to judge his competence (id., � 28(a) – (d), (f) – (g)). 3. The Complaint Also Arises from Speech and Petition Regarding an Issue of Public Interest. In addition, all the alleged statements by defendant Rosenthal are covered by the anti-SLAPP law as statements “made in a place open to the public or a public forum in connection with an issue of public interest,” or as “any other conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest.” (� 425.16(e)(3) & (4).) Issue of Public Interest. The issue which plaintiffs and their critics address — the validity of alternative medicine — concerns a highly controversial matter which is of great public importance and interest, affecting the health of millions of people and involving billions of dollars. (Rosenthal Decl., �� 23-25 and Exs. M & N.) Indeed, by maintaining websites and publishing and speaking widely about these issues, plaintiffs Barrett and Polevoy themselves must believe that the public is interested in their criticisms of alternative medicine. Thus, defendant’s alleged statements criticizing plaintiffs’ “quackbusting” activities as themselves quackery certainly raise a public issue or an issue of public interest. ( Nicosia v. De Rooy (N.D.Cal., 1999) 72 F.Supp.2d 1093, 1110 [critical statements about biographer of Jack Kerouac are in connection with a public issue]; Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226, 238-240 [statements that a nationally- known political consultant had physically and verbally abused his former wives involved a public issue]; see also Dora v. Frontline Video (1993) 15 Cal.App.4th 536, 542 [1987 documentary about Malibu surfing legends in 1950's involved matter of public interest].) The substantial publicity received by plaintiffs (Rosenthal Decl., �� 54-57) is also evidence that it is a matter of public interest. ( Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650-651.)] Public Forum. Defendant’s statements are statements made in a public forum or a place open to the public. ( Nicosia, supra, and at p. 1096 [website is a public forum]; Reno v. American Civil Liberties Union (1997) 521 US. 844, 853, 870 [Internet is vast platform to address world-wide audience; chat rooms allow any person to become a town crier]; Sipple, supra, and at p. 230 [magazine is a public forum]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476 [newsletter]; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674 [union campaign flyer].) Expressive Conduct. Defendant’s statements are also “any other conduct in furtherance” of defendant’s “constitutional right of free speech in connection with a public issue or an issue of public interest.” (� 425.16(e)(4); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 [statements and letter regarding public issue].) III. PLAINTIFFS CANNOT ESTABLISH A PROBABILITY OF PREVAILING ON THEIR CLAIMS. Once a defendant has made a prima facie showing that the lawsuit arises from petition or speech activity covered by � 425.16, as defendant has here, the burden shifts to the plaintiff to establish a probability of prevailing on its claims, which must be done by competent and admissible evidence. ( Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 820, 830; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15-16, 21 fn. 16, 25.) As discussed below, plaintiffs cannot meet this burden, at least as to defendant Rosenthal. Therefore, her special motion to strike should be granted. A. Most of the Allegations of the Complaint, Including All of Plaintiff Grell’s Allegations, Do Not Involve Defendant Rosenthal. The Complaint alleges libel and conspiracy to libel. A libel complaint must specifically identify the allegedly libelous statements so that the defendant has notice of the particular charges s/he is required to answer. “The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” ( Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.) As discussed above, most of the allegations of the Complaint assert that “defendants” (without specifying which ones) made certain statements; very few of its allegations specifically allege that defendant Rosenthal made specified statements. Indeed, Rosenthal did not engage in any of the acts alleged in paragraphs 7-11, 18-21, 23-34, 38, 42-47, 51- 52, and 58 of the Complaint, except as discussed below. (Rosenthal Decl., �� 33-48.) Further, Rosenthal has never posted any of the alleged statements about plaintiff Grell, of whose existence she was not even aware until this lawsuit was filed. (Rosenthal Decl., � 30.) She never conspired with any of the other defendants. (Rosenthal Decl., � 31.) As discussed below, the statements that defendant Rosenthal did post are not actionable. B. Defendant’s Posting of Statements by Others Is Protected by Federal Law. Shortly after August 14, 2000, defendant Rosenthal did post to newsgroups an opinion piece by Tim Bolen. (Complaint, �� 18, 23, 25(a), 35-36, and Ex. 11.) In addition, on or about August 18, 2000, she did post a message saying “Thank you for posting this,” in response to “JDrew 63929″ for posting a letter by Patricia Nail which was critical of Quackwatch. (Id. at � 38, and Ex. 11, pp. 7-8.) Defendant’s post, as is customary with newsgroups, reposted the original message to which she was responding. (Rosenthal Decl., � 45.) These posts of statements by others are absolutely protected by federal law. In 1996, Congress enacted the Communications Decency Act, which included provisions creating immunity for certain communications on the Internet. 47 U.S.C. 230(c)(1) provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(f)(2) defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…” Section 230(f)(4) defines “access software provider” as “a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.” Section 230(f)(3) defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Section 230(e)(3) provides in relevant part: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” These protections for covered communications were enacted “to promote the continued development of the Internet and other interactive computer services and other interactive media,” and “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” (47 U.S.C. 230(b)(1),(2).) Thus, “[b]y its plain language, � 230[(c)(1)] creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” ( Zeran v. America Online (4th Cir. 1997) 129 F.3d 327, 330, cited with approval in Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684, 692.) By the plain language of � 230(c)(1), this immunity also applies to users, as well as providers, of interactive computer services. Defendant Rosenthal’s posting or reposting of the material from defendant Tim Bolen and from Patricia Nail were posted to Internet newsgroups, and defendant was a “user” of their service. (Complaint, 36, 38; Rosenthal Decl., � 45.) Internet newsgroups are an “interactive computer service,” as defined by � 230(f)(2), because they are an information service or system and also an “access software provider” that “provides or enables computer access by multiple users to a computer server.” (Rosenthal Decl., � 28.) Defendant Bolen and Patricia Nail were the “information content providers” for that material, because they — and not defendant Rosenthal — were responsible for its creation or development. (� 230(f)(3).) Therefore, federal law prevents Rosenthal from being held liable for posting to an Internet newsgroup this information content created or developed by third parties. (� 230(c)(1), (e)(3).) C. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected Because They Do Not Contain Provably False Assertions of Fact. To establish libel, plaintiffs must show that defendant’s statements were “a false and unprivileged publication by writing … which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civil Code � 45.) Truth is an absolute defense against civil liability for defamation. ( Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 552-553.) Plaintiff must show that defendant’s statements contained or implied a “provably false factual assertion.” ( Moyer v. Amador Valley Joint Union High School District (1990) 225 Cal.App.3d 720, 724-725.) Because plaintiffs are public figures (as discussed in III-D-1 below), it is their burden to show falsity. (Id. at p. 724, n.2.) In making the distinction [between fact and opinion], the courts have regarded as opinion any “broad, unfocused and wholly subjective comment,” such as that the plaintiff was a “shady practitioner,” “crook,” or “crooked politician.” Similarly, in Moyer, this court found no cause of action for statements in a high school newspaper that the plaintiff was “the worst teacher at FHS” and “a babbler.” The former was clearly “an expression of subjective judgment.” And the epithet “babbler” could be reasonably understood only “as a form of exaggerated expression conveying the student-speaker’s disapproval of plaintiff’s teaching or speaking style.” ( Copp v. Paxton (1996) 45 Cal.App.4th 829, 837-838 [citations omitted]; see also Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 691, n.5 [citing cases holding that "playing hide and seek" with township funds, "fellow traveler of fascism," "sleazy sleight of hand," "unbelievably unscrupulous character," and "sleazebag" are nonlibelous because phrased in vituperative terms or because language used in "loose or figurative" sense].) In addition, the context of the statements is important for determining whether they are defamatory, in light of the “totality of circumstances.” ( Moyer, supra, at pp. 724-725.) Here, the statements were made in the general cacaphony of an Internet newsgroup, as part of an on-going, free-wheeling and highly animated exchange about health issues. The postings are full of hyperbole, invective, short-hand phrases, and language not generally found in fact-based documents. The tone and context of the newsgroup messages makes clear that they are individual opinions, not assertions of provable fact. (Rosenthal Decl., � 27.) Defendant Rosenthal has posted to Internet newsgroups her opinion that plaintiffs Barrett and Polevoy are “quacks,” that Barrett is “arrogant” and a “bully,” and that Barrett has tried to “extort” her. (See Complaint, �� 21(a) & (b), 25(d) & (s); Rosenthal Decl., �� 47-48.) None of these statements are actionable, because they do not contain provably false assertions of fact. The epithets “quack,” “bully,” and “arrogant” are expressions of subjective judgment which are in the eye of the beholder — exaggerated expressions conveying defendant’s disapproval of plaintiffs’ penchant for labeling those with whom they disagree as “quacks” and for trying to silence opponents with threats of litigation. They are not provably true or false, even though in defendant Rosenthal’s opinion, plaintiffs’ behavior justifies those epithets. (Rosenthal Decl., �� 47-48, 50.) Defendant expressed her opinion that, by threatening to sue her unless she paid him off, Barrett was trying to “extort” her. (Rosenthal Decl., � 47.) This is merely colorful rhetorical hyperbole, based on disclosed facts — no reasonable reader would understand that defendant was asserting that Barrett had committed a crime. ( Greenbelt Cooperative Publishing Association v. Bresler (1970) 398 US. 6, 13-14 [charging local real estate developer with "blackmail" in connection with his effort to get zoning variances not defamatory under First Amendment, because no reader could have thought he was being charged with committing a crime].) D. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected by the First Amendment, Because Plaintiffs Are Public Figures and Defendant’s Statements Were Not Made with “Actual Malice.” 1. Plaintiffs Barrett and Polevoy Are Public Figures. Under the First Amendment, defendants who are sued by “public figures” for defamation have special protections, for two reasons: “First, …public figures are generally less vulnerable to injury from defamation because of their ability to resort to effective “self-help.” Such persons ordinarily enjoy considerably greater access than private individuals to the media and other channels of communication. This access in turn enables them to counter criticism and to expose the fallacies of defamatory statements. Second, and more significantly, … public figures are less deserving of protection than private persons because public figures, like public officials, have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” ( Readers Digest Association v. Superior Court (1984) 37 Cal.3d 244, 253, citing and quoting Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 344-345 [internal citations omitted.) Plaintiffs Barrett and Polevoy are at the very least "limited purpose" public figures with respect to the issues in this lawsuit, one who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." ( Gertz, supra, at 351.) Plaintiffs allege that Barrett "has achieved national renown as a consumer advocate;" that he runs the Quackwatch website, which �is a guide to health fraud, quackery, and intelligent consumer decisions;" and that "[h]e is also a board member of the National Council Against Health Fraud (NCAHF), a nonprofit consumer-protection organization.” (Complaint, � 12.) Barrett has aggressively pursued publicity for himself and his views, actively thrusting himself to the forefront of the controversy over alternative medicine. His Quackwatch website claims more than 1.7 million visitors since January 1997, and he operates five other websites. He claims to have written 48 books and writes weekly columns. In June 2000, he and Polevoy were interviewed on a two-part PBS television show about defendant Hulda Clark. On February 23, 2001, Barrett was interviewed on NBC�s Today show. He authored an article on “How to Spot a Quack” for the March 5, 2001, issue of Time’s monthly magazine “On.” Time Magazine published an article on him in its April 20, 2001, issue, entitled “The Man Who Loves To Bust Quacks,” which states that “he has become one of America’s premier debunkers of what he likes to call quackery.” Barrett himself is quoted in the article as saying: “Twenty years ago, I had trouble getting my ideas through to the media. Today I am the media.” (Rosenthal Decl., �� 55-57 and Exs. O, U, & V.) Plaintiffs also allege that Polevoy “operates a large Web site that exposes health frauds and quackery.” (Complaint, � 13.) Polevoy also runs three other websites, and has actively thrown himself to the forefront of the controversy over alternative medicine. As noted above, last year he and Barrett were interviewed on a two-part PBS television show about defendant Clark. (Rosenthal Decl., �� 42-43, 57.) In these circumstances, plaintiffs Barrett and Polevoy are public figures. Persons and entities with much less prominence have been held to be public figures. (See, e.g., Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 71, disapproved on other grounds, McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 847 n.9 [licensed clinical psychologist who conducted "nude marathon" group therapy sessions]; Montandon v. Triangle Publications (1975) 45 Cal.App.3d 938, 941 [author of book "How to Be a Party Girl," who promoted it by appearing on television and radio programs]; Widener v. Pacific Gas & Electric Co. (1997) 75 Cal.App.3d 415, 433 [documentary film producer]; Readers Digest, supra, at p. 254 [founder of Synanon, a drug rehabilitation program]; Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 675 [personal representative of Howard Hughes]; Dworkin v. Hustler Magazine, Inc. (9 Cir. 1989) 867 F.2d 1188, 1190 ["a prominent and outspoken feminist author"]; Nadel v. Regents of the Univ. of California (1994) 28 Cal.App.4th 1251, 1269 [activists who clashed with university over "People's Park"]; Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195, 205-206 [owner, operator, and manager of a radio station]; Copp v. Paxton, supra, 45 Cal.App.4th at p. 842 [individual who made public statements concerning earthquake safety procedures].) 2. Defendant’s Statements Were Not Made with “Actual Malice.” Under the First Amendment, public figures, in order to recover in a defamation action, must show by clear and convincing evidence that the defendant’s statements were made with “actual malice,” i.e., with knowledge that they were false or with reckless disregard of whether or not they were false. ( Readers Digest, supra, 37 Cal.3d at p. 256.) To do this, plaintiff must show “that the defendant in fact entertained serious doubts as to the truth of his publication.” (Ibid.) “[W]hether any misconduct [by plaintiffs] occurred is irrelevant to the resolution of the issue of [defendants'] subjective state of mind. Instead, it is [defendants'] subjective attitude toward the information they discovered which properly bears on the issue of actual malice.” ( McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 854 n.16.) “The clear and convincing standard requires that the evidence be such as to command the unhesitating assent of every reasonable mind.” ( Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950.) The only statement alleged in the complaint which was made by defendant Rosenthal about any plaintiff and which arguably contains provably false statements of fact is the statement that Barrett had “bunches of $$$$ coming to him to run” his website. (Complaint, � 37.) First, it is highly doubtful that this statement is defamatory, even if false. Second, Rosenthal did not make this statement with “actual malice.” She honestly believes it and does not entertain serious doubts as to its truth. (Rosenthal Decl., �� 35-37.) E. Defendant’s Statements About Plaintiffs Barrett and Polevoy Are Also Protected by the Common Interest Privilege. A communication is also privileged if it is made without malice to an interested person: “(1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (Civil Code � 47(c).) “Malice” means a “state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.” ( Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 745.) Where the communication is not directed to the world at large, but to a smaller group on a subject of interest to them, it is subject to the common interest privilege. ( Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1, 12, 170 Cal.Rptr. 411.) Defendant’s statements were distributed to people in the newsgroups she posted to, who share a common interest in matters related to alternative health. (Rosenthal Decl., �� 27, 53.) Defendant did not post her statements because of any malice, hatred, or ill will towards any plaintiff. (Rosenthal Decl., � 29.) Therefore, her statements are privileged under Civil Code � 47(c). CONCLUSION The policy favoring early disposition of cases which impinge on First Amendment rights applies squarely to this case. Plaintiffs’ lawsuit arises from defendant’s acts in furtherance of her First Amendment petition and speech rights, and is intended to silence, punish and retaliate against her for exercising those rights. Therefore, the Complaint is subject to the anti-SLAPP law. Because plaintiffs cannot show a probability of prevailing on any of their claims against defendant Rosenthal, her special motion to strike the Complaint as a SLAPP should be granted, and the Complaint should be dismissed in its entirety as to her, with prejudice. Dated: May 7, 2001. Respectfully submitted, Mark Goldowitz California Anti-SLAPP Project Special Counsel for Defendant Ilena Rosenthal TABLE OF AUTHORITIES FEDERAL CASES Dworkin v. Hustler Magazine, Inc. (9 Cir. 1989) 867 F.2d 1188 eCash Technologies v. Guagliardo (C.D.Cal., 2000) 127 F.Supp.2d 1069 Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 Greenbelt Cooperative Publishing Association v. Bresler (1970) 398 US. 6 Nicosia v. De Rooy (N.D.Cal., 1999) 72 F.Supp.2d 1093 Reno v. American Civil Liberties Union (1997) 521 US. 844 Zeran v. America Online (4th Cir. 1997) 129 F.3d 327 STATE CASES Beilenson v. Superior Court (1996) 44 Cal.App.4th 944 Bindrim v. Mitchell (1979) 92 Cal.App.3d 61 Bradbury v. Superior Court (1996) 49 Cal.App.4th 1170 Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036 Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106 Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 Copp v. Paxton (1996) 45 Cal.App.4th 829 Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 Dora v. Frontline Video (1993) 15 Cal.App.4th 536 Dove Audio v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777 Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 Good Government Group of Seal Beach v. Superior Court (1978) 22 Cal.3d 672 Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525 Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1 Kahn v. Bower (1991) 232 Cal.App.3d 1599 Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684 Lafayette Morehouse v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855 Ludwig v. Superior Court (1995) 37 Cal.App.4th 8 Macias v. Hartwell (1997) 55 Cal.App.4th 669 Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662 McCoy v. Hearst Corp. (1986) 42 Cal.3d 835 Montandon v. Triangle Publications (1975) 45 Cal.App.3d 938 Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676 Moyer v. Amador Valley Joint Union High School District (1990) 225 Cal.App.3d 720 Nadel v. Regents of the Univ. of California (1994) 28 Cal.App.4th 1251 Pacific Gas & Electric Co. (1997) 75 Cal.App.3d 415 Readers Digest Association v. Superior Court (1984) 37 Cal.3d 244 Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226 Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195 Widener v. Pacific Gas & Electric Co. (1997) 75 Cal.App.3d 415 Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 STATUTES 47 U.S.C. 230 (b)(1) 230 (b)(2) 230 (c)(1) 230 (c)(1) 230 (e)(3) 230 (f)(2) 230 (f)(3) 230 (f)(4) Civil Code 45 47(c) Code of Civil Procedure 425.16 425.16 (a) 425.16(b)(1) 425.16(e) 425.16(e)(1) 425.16(e)(2) 425.16(e)(3) 425.16(e)(4)

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