Cases of Note: La-La Land and the Anti-SLAPP Statute
Cases of Note: La-La Land and the Anti-SL APP Statute
Bruce Strauch 0 1
Bryan M. Carson 0 1
Jack Montgomery 0 1
0 Western Kentucky University , USA
1 Bruce Strauch , The Citadel
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Cases of Note — La-La Land and the Anti-SLAPP Statute
John Doe v. Gangland Productions, Inc;
A&E Television Networks, UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT, 2013 U.S. App. LEXIS 19102.
Defendant Gangland Productions takes
TV viewers up close and personal with
America’s most vicious street gangs
and law enforcement’s valiant battles
to barely contain them. In their search
for low-life horror stories, they decided
to take a look at a white supremacist
gang called “Public Enemy Number
1” or “PEN1 Death Squad.” This last
bit of creativity is derived from their
devotion to an anarcho-punk/deathrock
band “Rudimentary Peni.”
And that comes from the lead gui
tarist having learned that the clitoris is
a rudimentary penis. Said guitarist is a fan of
H.P. Lovecraft and has personally spent time in mental institutions.
Well, the show certainly sounds like fun.
Meth-freak killers covered in jailhouse
swastikas and invocations to Odin.
Plaintiff John Doe (although what the
point of concealing his identity is now beats
me) was a police informer induced to talk to
the Gangland producer. Doe had never been
a member of said gang of drooling, stone-killer
Nazis, but he had been a childhood friend of
Scott Miller, a co-founder of the fun-loving
group. And, wouldn’t you know, Miller had
been “allegedly” murdered by them.
And now we get a nice question of fact.
Doe says he wore a hat and bandana as he
entered the interview room and insisted his life
wouldn’t be worth a dare-I-say plug nickel if
his identity got out. He said Producer induced
him to remove the garb, promising his face
would be concealed by the production process.
Producer asserts Doe wore nothing, and was
shown on the monitor how he would appear. He
also provided photos of himself displaying his
artistic gang tattoos. He further signed a release
that permitted the revelation of his identity and
“…acknowledges that revealing Participant’s
real name and identity in the Program may be
dangerous for Participant and may result in
bodily harm or death to Participant.”
Sure. That makes sense. They were paying him Hollywood moolah.
Doe claims he signed a document he was
told was “just a receipt” for his $300 payment.
Against the Grain / November 2013
He said he is dyslexic and illiterate.
Why do I have no trouble believing that?
That he had his girlfriend with him, but she
was not allowed to read the document because
it was just a receipt. And he never got a copy
of what he signed.
Whether he signed or not, why did they do this to him? Were they looking for a sequel when he was rubbed out?
And Now For His Fifteen
Minutes of Fame
The show aired on the History
Channel. Some of the Public Enemy
charmers talked about their penchant for
savage violence and their excessive drug
consumption. Their faces were obscured.
Then Doe’s face appeared in utter detail
along with his nickname.
The episode dealt with the sudden demise of
co-founder Scott Miller who had been unwise
enough to be interviewed on TV.
Um, just like this? Well, sort of.
His face had been covered, but he was easily
identified by his tattoos and personal traits.
Yes, the meth-twitch and those permanent
SS flashes inked on your throat are kind of a
And Doe, with his face revealed and his
nickname aired, chatted about murder, identity
theft, and the meth commerce.
And I’m sure he about had a cow while watching the show.
And so — Presumably from a Hidden
Location — Doe filed suit.
And it was the predictable tortsy stuff: (1)
appropriation of likeness; (2) public disclosure
of private fact; (3) false promise; (4) negligent
infliction of emotional distress; (5) intentional
infliction of same. He says he was evicted from
his apartment and barraged with death threats.
He is no longer employable as a snitch, and
he’s had a whole bunch of emotional distress.
Gangland Productions filed an anti-SLAPP
motion which was denied and then appealed.
We previously encountered anti-SLAPP
(Strategic Lawsuit Against Public
Participation) in this exciting column in a lust-soaked
Paris Hilton lawsuit. It’s a California statute
designed to protect free speech against ruinous
frivolous lawsuits. But Paris’ suit had merit
because Hallmark had shamelessly exploited
her image without payment of the requisite big
bucks. Hilton v. Hallmark Cards, 599 F.3d
894, 903 (9th Cir. 2010).
Documentary TV shows are just the sort of
free speech exercise in connection with an issue
of public interest it’s meant for.
And there’s no point in going through the
three, densely-packed pages of legal jabber
establishing that. And Gangland has met their
initial burden under anti-SLAPP.
But that doesn’t mean that TV can’t be sued
for libel, invasion of privacy, etc. In the second
phase of the analysis, they look at whether the
suit is frivolous, or to the contrary, Doe has a
likelihood of winning. Wilson v. Parker,
Covert & Chidester, 28 Cal. 4th 811, 821 (2002).
At this stage of the suit, the effect of the
release is not determined. He signed it, but he
can demonstrate fraud in the execution if he
can show he did not know what he was signing.
Vill. Northridge Homeowners Ass’n v. State
Farm Fire & Cas. Co., 50 Cal. 4th 913, 921
(2010). And at best being able to read a sign
for beer is a pretty classic demonstration. Along
with being brain dead.
Public Disclosure of Private Facts
Well, his identity was certainly disclosed
to the public. Gangland does not dispute that
connecting a person “with a violent gang, if
done involuntarily, may be offensive and
objectionable to the reasonable person.”
I know that’s just the legal jargon, but it’s
almost like they’re trying to be funny.
If they lied to him and then exposed his
face, that sure does seem kind of extreme and
outrageous and the sort of thing that would
cause severe emotional distress.
This is nothing more than fraud, which goes
back to the release issue.
AND the Ninth Circuit held that
anti-SLAPP applies, but TV can’t go around
willy-nilly handing people over to PEN1
Death Squads and remanded the case for Doe
to make his case.
If he lives that long.