The producers of the documentary television series Gangland have invoked California’s anti-SLAPP law to trim claims from a lawsuit brought by a former prison gang member turned police informant who alleges they reneged on an agreement to shield his identity.
The plaintiff, referred to in court papers as John Doe, sued Gangland Productions Inc. and A&E Television Networks LLC after his identity was revealed in a 2010 episode of the show, which aired on The History Channel. The revelation allegedly endangered his life and cost him his apartment and his job as an informant.
The producers, who asserted that the plaintiff had signed a form releasing them from liability, fired back with a motion under a California statute that permits defendants to toss any lawsuit deemed a “strategic lawsuit against public participation”— or a SLAPP. On August 1, 2011, U.S. District Judge Andrew Guilford denied their motion to strike the complaint on freedom-of-speech grounds.
However, the U.S. Court of Appeals for the Ninth Circuit on Monday disagreed with Guilford’s dismissal in a unanimous ruling, written by Judge Harry Pregerson.
The anti-SLAPP law has been the subject of some controversy within the Ninth Circuit, where some judges have questioned whether the federal courts should be enforcing the statute at all since it is procedural, not substantive, in nature. On April 17, in a consumer case brought against Trump University, judges Alex Kozinski and Richard Paez urged appointment of an en banc panel to decide whether to reverse a 1999 precedent, U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., which permitted federal courts to apply the state statute. The Consumer Attorneys of California has filed an amicus brief opposing rehearing.
Monday’s ruling seems to indicate “the anti-SLAPP statute is still alive and well in federal court,” said Jeremy Rosen, a partner at Horvitz & Levy in Encino, Calif., and an expert on California’s anti-SLAPP statute.
Kelli Sager, a partner at Davis Wright Tremaine in Los Angeles, who represents A&E and Gangland Productions, did not return a call for comment.
“Obviously we’re pleased with the ruling and pleased that my client gets to move forward with his case,” said plaintiff attorney Eric Schiffer, a partner at Schiffer Buus in Costa Mesa, Calif.
Gangland, which aired from 2007 and 2010, gave insider accounts of America’s most notorious street gangs.
The plaintiff claims he was a childhood friend of Scott Miller, one of the co-founders of the white supremacist gang Public Enemy Number 1, who allegedly was murdered by some of the gang’s other members. The plaintiff agreed to be interviewed for an episode about that gang for $300, as long as his face wasn’t revealed, according to the Ninth Circuit opinion.
One of the producers testified that she didn’t remember the plaintiff requesting that his identity be concealed, while the plaintiff, who claims he is dyslexic, illiterate and has “extreme difficulty reading,” believed he was signing a receipt for his $300 payment, not a release from liability.
In reversing Guilford’s dismissal of the anti-SLAPP motion, the Ninth Circuit found that the broadcast, even if unlawful, was protected free speech and played an integral role in the plaintiff’s claims. “But for the broadcast and Defendants’ actions in connection with that broadcast, Plaintiff would have no reason to sue Defendants,” Pregerson wrote.
The court also disagreed with Guilford’s analysis that the plaintiff’s personal identity—and not just in the broader issue of gang violence—needed to be a matter of public interest. “They were not required to show a specific public interest in Plaintiff,” Pregerson wrote of the show’s producers.
Addressing the merits on the motion for the first time, the Ninth Circuit let stand the plaintiff’s claims for false promise, declaratory relief, intentional infliction of emotional distress, and public disclosure of private fact. But it tossed his claims for appropriation of likeness and negligent infliction of emotional distress.
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