SUPREME_.
SUPREME COURT COPY «=s«FILE
FEB 2 §2017
Jerge Navarrete Clerk
No. 8235735
SUPREME COURT OF CALIFORNIA
RAND RESOURCES,LLCet al.,
Plaintiffs, Appellants, and Respondents,
V.
LEONARD BLOOM,et al.,
Defendants, Respondents andPetitioners. |
After a Decision by the Court of Appeal
Second Appellate District, Division One
Case No. B264493
On Appeal from the Los Angeles Superior Court
The Honorable Michael L. Stern
Case No. BC564093
APPLICATION TO FILE AMICI CURIAE BRIEF
AND AMICI CURIAE BRIEF OF MEDIA ENTITIES IN SUPPORT
OF DEFENDANTS AND RESPONDENTS
DAVIS WRIGHT TREMAINE LLP
KELLI L. SAGER (SBN 120162)
*THOMASR. BURKE(SBN 141930)
ROCHELLEL. WILCOX (SBN 197790)
DAN LAIDMAN(SBN 274482)
865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
(213) 633-6800tel
(213) 633-6899 fax
No. 8235735
SUPREME COURT OF CALIFORNIA
RAND RESOURCES,LLCet al.,
Plaintiffs, Appellants, and Respondents,
Vv.
LEONARD BLOOM,et al.,
Defendants, Respondents and Petitioners.
After a Decision by the Court ofAppeal
Second Appellate District, Division One
Case No. B264493
On Appeal from the Los Angeles Superior Court
The Honorable Michael L. Stern
Case No. BC564093
APPLICATION TO FILE AMICI CURIAE BRIEF
AND AMICI CURIAE BRIEF OF MEDIA ENTITIES IN SUPPORT
OF DEFENDANTS AND RESPONDENTS
DAVIS WRIGHT TREMAINE LLP
KELLI L. SAGER (SBN 120162)
*THOMASR. BURKE (SBN 141930)
ROCHELLE L. WILCOX (SBN 197790)
DAN LAIDMAN(SBN 274482)
865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
(213) 633-6800tel
(213) 633-6899 fax
TABLE OF CONTENTS
Page
APPLICATION TO SUBMIT AMICI CURIAE BRIEF...eeeeeeeeeeeeee2
I. SUMMARYOF ARGUMENT.......ccccceccceeseeeseceeceeeecesteneesseesseesseeeee 5
II. THE SLAPP STATUTE MUST BE BROADLY
CONSTRUED TO PROTECT FREE SPEECH.........ceeeeeseseeeees 1]
I. THE COURT OF APPEAL’S DECISIONIN THIS CASE
FOLLOWSA LINE OF AUTHORITY THAT
IMPERMISSIBLY CONSTRUES THE PUBLIC
INTEREST REQUIREMENT NARROWLY.........:cccceseeesseeteesees 17
A. Focusing On The Specific Plaintiff Or Statement
AtIssue, Instead Of The Broad Topic Of The
Speech, Is Error. 2.0.0.0... ee eeeseeeeeeeeeseeeeeeeeneeeeees sesesneseneeneneeenenes 17
B. Some Courts Have Applied An Unnecessary And
Unduly Restrictive Framework For Evaluating The
“Public Interest” Language In The Anti-SLAPP
Statute. oo... ceccecseccessseceesseecsecescessneeceseevseneesseeeeseseesessseesseeenee 24
IV. THIS COURT SHOULD ADOPTA PUBLIC INTEREST
STANDARD THATIS CONSISTENT WITH THE SLAPP
STATUTE’S PURPOSE AND ESTABLISHED
CONSTITUTIONAL PRINCIPLES.2000... eeeeeeeeeeeeeceeseeseesesseeeeeees 33
A. Decades OfFederal And State Constitutional Law
Provide Guidance For Defining Matters Of “Public
Interest” In Connection With Speech...............cccesseessseseees 34
B. This Court Should Adopt An Expansive Public
Interest Standard Consistent With Its Precedents .
And Other Constitutional Authorities.....0.........ccescsseseeenees43
V. THE PUBLIC INTEREST REQUIREMENTIS MET IN
THIS CASE. oo.cecccececececseccecenecesnecaceaceaeeeeaeeaeceatecseeseaaeeseeeetaeeaseeeensas 49
VI. CONCLUSION...eeecesceeececeeeeeeeneeseeseecseessaeeaeesetecseeneeseseees 54
APPENDIX Aoocccccccesceceseseeeeesnssecessseassasseeceseessesesuesseasseaecaensiesseeeatees 56
TABLE OF AUTHORITIES
Page(s)
Cases
Averill v. Superior Court,
42 Cal. App. 4th 1170 (1996)...eee eeesccceecneeeeeeseeeesnecenseeeteeeteeesaeens 12
Baker v. Herald Exam’r,
42 Cal. 3d 254 (1986)...ccc cccccessccesseeseeesseeenaeceseseseeeceeeeesseseseeeseaecesertene 4
Baral v. Schnitt,
1 Cal. Sth 376 (2016)... ecccsescecessseereesseceseeesenenseecetenessaeenseseases4,5, 48
Barry v. State Bar of California,
2 Cal. Sth 318 (2017)...cececccscsseeessesseseseeeseneesanessaeeeeseeeneeseeesseaeees 5, 14
Bartnicki v. Vopper,
532 U.S. 514 (2001) wo.eecccecceceesseceseesaeececeesneesseeesnaneteaeeseeeeseesessseenes 35
Braun v. Chronicle Publ’g Co.,
52 Cal. App. 4th 1036 (1997)........ceecccceeeeesceceneeseeeeeeeceeeeeetseeseees 11, 12, 13
Briggs v. Eden Council for Hope & Opportunity,
19 Cal. 4th 1106 (1999)...eeeccccesscsseeesseeesseecseeessenseseeeeeteseeesees 6, 13
Briscoe v. Reader’s Digest Ass’n,
A Cal. 3d 529 (1971)... ccceccccccccsssscccesecseeesseeeeseeseeeeseeeesseueceeesseeesseeeseeeess 40
Brodeur v. Atlas Entertainment, Inc.,
248 Cal. App. 4th 665 (2016).........cccsecececeeeseeeeeeneeeteeeesetseesnes 16, 21, 22
California Commission on Peace Officers Standards &
Training v. Superior Court,
42 Cal. 4th 278 (2007)........ccccccccccescceeescssecesceeensessseceseeeeeeneeeaeeseeessceseeenes 52
California State University, Fresno Ass’n, Inc. v. Superior
Court,
90 Cal. App. 4th 810 (2001)...eece eeeseeeeeeeeseseeereseeesecsetaeeeeteeeesenesaes 52
Castillo v. Pacheco,
150 Cal. App. 4th 242 (2007)... cceceseeeceecsesceeceeneeteceeeaeeeereneeaeensenaeees 48
il
CBSBroadcasting Inc. v. Superior Court,
91 Cal. App. 4th 892 (2001)...ceceeeeeseeceeeeseeeesssseeeseeeasseaeesseeseseeeees 52
CBS, Inc. v. Block,
42 Cal. 3d 646 (1986) ..0.....ecccccccceeceseeseessneterseesecsacereneesesseseseneeesasaeeeeseaes 52
Chaker v. Mateo,
209 Cal. App. 4th 1138 (2012)...eeecseesseecseeeeeesseseetsereneeesneeeees 16
City of Montebello v. Vasquez,
1 Cal. Sth 409 (2016)... ccccccsscseeseecessaeeeseneeceseeeseneneres 5, 13, 14, 46
City of San Diego v. Roe,
543 U.S. 77 (2004) .o.ceecececcccccesssccesceeeecseeesseeeesececenaceesacesseesseesneeeeteeeeens 39
Club Members For An Honest Election v. Sierra Club,
45 Cal. 4th 309 (2008).........cccccccscccsceeeesseeeceaeeeeeseeeceeeecesesaereseeseseteeeneas 14
Commonwealth Energy Corp. v. Investor Data Exchange,
Inc.,
110 Cal. App. 4th 26 (2003) oo...cesceereereceseseeeeeeseseeeseenenae passim
Cross v. Cooper,
197 Cal. App. 4th 357 (2011)...eeeeeceeseeeseeeeeeneeseeeessesteeteoens 9, 30, 31
Doe v. Gangland Productions,
730 F.3d 946 (9th Cir. 2013) oo...ec eeeeeceeeceseeeeseeeesneeneereeseaseneeeaeee passim
Dowling v. Zimmerman,
85 Cal. App. 4th 1400 (2001)...eeeceeeeseseeesseeseeenssecsecnscessaneeeeeaes45
Du Charmev.International Brotherhood of Electrical
Workers, Local 45,
110 Cal. App. 4th 107 (2003)...eeeesseceeeseseecsseeseeneneesenseeseeeees passim
Dual Diagnosis Treatment Center, Inc. v. Buschel,
6 Cal. App. 5th 1098 (2016)...eeeceeeesseeessesseeseeeseesseseesseaesees 8, 23, 28
Dun & Bradstreet v. Greenmoss Builders,
AT2 U.S. 749 (1985) ..cccccccccececssceceaceseeeseeessaeesssaeesessaecsaeesssetseseseeteneeesaaas 39
Federated University Police Officers Ass’n v. Superior Court,
218 Cal. App. 4th 18 (2013)... cecesesceeseesscsesesesensesseneesssseesseaeseaeenee 52
Four Navy Seals v. AP,
413 F. Supp. 2d 1136 (S.D. Cal. 2005)...eeeeects cseseeteenecsesnensaeeees 22
ili
Gates v. Discovery Communications,Inc.,
34 Cal. 4th 679 (2004)...cece ceeeseeeseeneeeeseeseaeesseecneseseneeeenensseneaeses42, 43
Gertz v. Robert Welch,
418 U.S. 323 (1974) oo.ceccccccecsesceceseseseeeseesenseeeseeeneseseenenenenseseteeneseneesenenes 27
Gilbert v. Sykes,
147 Cal. App. 4th 13 (2007)...cece eeeeeesesetseseceeesenenseseeseeesees 16, 32, 33
Guglielmi v. Spelling-Goldberg Prods.,
25 Cal. 3d 860 (1979)... cececcesceeeeeeeeecencesneessaesesuseseseassecseesseesessenenaeee 41
Hall v. Time Warner, Inc.,
153 Cal. App. 4th 1337 (2007)... eeeececsseeeseeeeeeseeeeeetseeneeeesanees 16, 23
Harris v. Quinn,
134. S. Ct. 2618 (2OV4) .ooccc ccc cceeccessceeceseceeceesaeesseseeeessessecsseaeeeseneseees 36
Hecimovich v. Encinal School Parent Teacher Org.,
203 Cal. App. 4th 450 (2012)...ceeceeeeeteseseeneenenes 16, 31, 32, 33
Hilton v. Hallmark Cards,
599 F.3d 894 (9th Cir. 2009) 0... ecceeseeceseeeseeeeseseeeeeseseenseseessasesaenes 16
Hunter v. CBS,
221 Cal. App. 4th 1510 (2013)...eeeee eeeseeseeeeeeeneeees 7, 18, 19, 51
Hutchinson v. Proxmire,
443 U.S. 111 (1979) occccc ccc ceceeceeeceeseeseeeeeeeeeeteesssesesesnesesseseeseaaeaaeenes 28
International Federation of Professional & Technical
Engineers, Local 21, AFL-CIO v. Superior Court,
42 Cal. 4th 319 (2007).........cccceceeeeceeeeeteeeeesneeseeeseeeseteessseseesetessaaeeseeaeneas 52
Jarrow Formulas, Inc. v. LaMarche,
31 Cal. 4th 728 (2003)..........ccesceeceecesceseeseeeceeeeeceeceesessseeessesneesensesaees 14, 46
Kibler v. Northern Inyo County Local Hospital Dist.,
39 Cal. 4th 192 (2006)... ..ecccceeeceeeececceeeceseeceeneeeaseesecseeveeeeesseaeeeeeensaseags 14
Lafayette Morehouse, Inc. v. Chronicle Publ’g,
37 Cal. App. 4th 855 (1995)...eeecess eecesssceseeesesseeseeessessersensesensens4
Long Beach Police Officers Ass’n v. City of Long Beach,
59 Cal. 4th 59 (2014)... cee eeccceeeeseeeeeeeeeseeeeeseeeseereeeeseseateneeneeeseaseaeaeaes 52
iv
Ludwig v. Superior Court,
37 Cal. App. 4th 8 (1995)...cecscseeeseeeenecssnansssesssessseeseesseseeesenees 45
M.G. v. Time Warner,Inc.,
89 Cal. App. 4th 623 (2001)...cece cseeeeeesescnsseneeesseesssesesseessesseeseeaes20
Martinez v. Metabolife Int’], Inc.,
113 Cal. App. 4th 181 (2003)...eeeeessecseeseeseeseessessaeeeneaeees 6, 47, 48
Miami Herald v. Tornillo,
418 U.S. 241 (1974) oo ccccccscceseeeeeeeseeesaeeeecseseeeeseessasesseecsuseanesesaesaeens 40
Milkovich v. Lorain Journal Co.,
A497 U.S. 1 (1990) o.oo cecccccccesecesseeseeceseeaeerseessesseeseesescesseeseeeeeaeeseereeees 35
Mosesian v. McClatchy Newspapers,
233 Cal. App. 3d 1685 (1991)...eee ceceeececssceeeeeseeseesesesecenerssesseseens28
Navellier v. Sletten,
29 Cal. 4th 82 (2002)........cccceccsccecsssceseeeceneecseeecaeeseeeseeueeeseaeesneeeees 14, 49
Nebraska Press Ass’n v. Stuart,
427 U.S. 539 (1976) ...cccccccscsccsseesscesseecsecesceessesseeaeeseeenaceeseeeeseesaeeesas46, 47
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) oo cecccccccccsesseeseneessecseecenecseteecsaceeaeeesseeseaeeeaseeenteaeees 35
New York Times Co. v. Superior Court,
218 Cal. App. 3d 1579 (1990)... cecece cceecenessesecseeseceseeesestesseeaseeseenes 52
No Doubtv. Activision Publishing, Inc.,
192 Cal. App. 4th 1018 (2011)...ee eesesesceeeeseeeseseeeessessesneaeseeeaeaetenetens 16
Nygard, Inc. v. Uusi-Kerttula,
159 Cal. App. 4th 1027 (2008)...ceceeecceeesceteeeeeeeeeeeeeetenseees 6, 15, 16
Pacific Gas & Electric Co. v. Public Utilities Com.,
475 U.S. 1 (1986) ...ccccccccccceesseseeceeseeceeeeseeeeeeeseeeneecsateneeeaaesaseaaseneeeaeseeese 36
Paterno v. Superior Court,
163 Cal. App. 4th 1342 (2008)00...eseeseeessseeeereeeseeeeeetentees4, 24, 45
Philadelphia Newspapers v. Hepps,
475 U.S. 767 (1986) oo... ccccccsccseesseeseceneesseseeeessesseeseeeseenseecesneeessesnessseeeaeras35 ea
tb
al
oe
y
n
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations,
413 U.S. 376 (1973) ...ccccscssescesccssceeseseceecsseesessesceaeeseseecesanecsseeeeseeattetsees40
Rand Resources, LLC v. City of Carson,
247 Cal. App. 4th 1080 (2016)...eeeeee eeeeteeeseeeeeeceeseeeeeeeeeees passim
Rankin v. McPherson,
483 U.S. 378 (1987) ...ccccccccccssceccsscecseeeeeseecssecessueeestseesseeeeeessneeseenaeeseees 37
Rivera v. First DataBank, Inc.,
187 Cal. App. 4th 709 (2010) .......ecceceeeescesseseseeeeeeeeeseresssesssssessesecseseseeae 16
Rivero v. American Federation of State, County and
Municipal Employees, AFL-CIO,
105 Cal. App. 4th 913 (2003). 0.0... ceeeeeesseeseseeeeeeneeseteseeesseeseaeseesees passim
Sacramento County Employees’ Retirement System v.
Superior Court,
195 Cal. App. 4th 440 (2011)...eeeceeeeeccseesseetseeseeesesesscesasesaeneneessensens 52
San Diego County Employees Retirement Ass’n v. Superior
Court,
196 Cal. App. 4th 1228 (2011)...eeeee csseesseeseesecsaecsseseseeeseesesaaeesseees 52
Sarver v. Chartier,
813 F.3d 891 (9th Cir. 2016) 2... cccccceesecscceseeesseeeeeceseeeeseeeceeeeaeteeenesaes 22
Seelig v. Infinity Broad. Corp.,
97 Cal. App. 4th 798 (2002)... eeesceeeeeeeeeesecesesessssseueeeasensesstassenenes 16
Shulman v. Group W Productions, Inc.,
18 Cal. 4th 200 (1998)...eeecece tere ceeeeeseeeseeeeaseseeeeseeeeeeneeeeees passim
Simpson Strong-Tie Co., Inc. v. Gore,
49 Cal. 4th 12 (2010)...cececcceceseesseeeeeeeseeetseesceeeaeecneaeeeeeeeeenetaeenees 15
Snyderv. Phelps,
562 U.S. 443 (2011) ...ec ec cec ce cceceeccessneeeeeseesnseeeeeesesseaeeeseneesaeeetaaes passim
Sonoma County Employees’ Retirement Ass’n v. Superior
Court,
198 Cal. App. 4th 986 (2011)...eeetesseseseceeeseeesseesesesseeneessenseneate 52
vi
Soukop v. Law Offices of Herbert Hafif,
39 Cal. 4th 260 (2006)...ccc cccccececssscesneeeseeseeeeeeeseecceesseeeesesnsaessseseaee 14
Stewart v. Rolling Stone LLC,
181 Cal. App. 4th 664 (2010)...eeeeesccesecseeceseeseecneeeseeeeseeaeeasenseesaes 16
Summit Bank v. Rogers,
206 Cal. App. 4th 669 (2012)...eeececeeseseeeseesseeeeseeeeeeeeaseetsessrenees 16
Tamkin v. CBS,
193 Cal. App. 4th 133 (2011)...eee eeeeeeseeeeeeeeceeeeeeaeeeeseeseesees 8, 20, 50
Tausv. Loftus,
AO Cal. 4th 683 (2007)... ccccccccesececessneeeeettsceetesseeeeeesoneeseeeseeaes passim
Terry v. Davis Community Church,
131 Cal. App. 4th 1534 (2005)...cece eeeeeeeeseeeneeeeeeseeeaeereeenneneeenens 8, 19
Thornhill v. Alabama,
310 ULS. 88 (1940) ooocccecseecteceeeeeseeeaeeeseeeseeseecsessneeeseeseeneees34, 36
Vargasv. City of Salinas,
A6 Cal. 4th 1 (2009)......eecceceesecsesseseeseeessecessesneeseesaseseesasensseenesseesneneeneans 14
Waters v. Churchill,
511 U.S. 661 (1994) oonccccseceteceneeseseesaeeseeeenecneeesesseeeeeessesesseeseees 36
Weinbergv.Feisel,
110 Cal. App. 4th 1122 (2003)...eeeeeeeseesseeeceseeseeneeesereeeeeesees passim
Wilbanks v. Wolk,
121 Cal. App. 4th 88 (2004)...eecesesscsceeteeeseesseesneeeaeeas 30, 31, 44
Winter v. DC Comics,
30 Cal. 4th 881 (2003)... ccceceeseeseesseecceeseceeeeeesenenecseeesessseseeseeseenenseenees 4
Zhao v. Wong,
48 Cal. App. 4th 1114 (1996)...eeeceeeeeeeeeeeeeeteseenaeeneeaes 12, 13, 31
Vil
Statutes
Code of Civil Procedure
§ 425.16 oe ceecccccsecesceseeeeeecereceeneeesaeenseeseateseteneeeeeesssessersserestiensensesaes passim
§ 425. 16(a)...ceeecceecesccceeeesecsseeeeeeeseceseaseessecseeseeseseeessaeensetecseses 13, 15, 45
§ 425.16(a)(1) oe eeeeeccceecesecececeeceeceeeneeeseeeseeesetseseeseasseesesseeessseessesseesseeseesusees 5
§ 425. 16(D)(1)eeeeececeeeeeteeeeeceeeeeseeeessessceseseseesseseeeersseeereeceenseeees passim
§ 425. 16(€)(2) .eeeececceceeeeseccerceccseescceeeeseeeseesseeseteesaasaaseesseeessssessesseseseueeseasae 6
§ 425. L6(€)(B) ..ceeceeceecesceceecceeeeeeeeserseeeeseeseeeeseesseseesesueseseeesnessessseeaeeaaeaeey 15
§ 425. 16(€)(4) once cecccecseeseeseceeceeeeeeceeecesessececseeeseseseeneeesseeseesenes 1, 6, 8, 12
Rules
California Rule of Court
B.S2QO(L) ...eececccccseesececesccececececseeeseeeecesaeeeesseesesseesaseaeeeseesesseseusessassasaeeaeoneeegs 2
B.S2O(L)(A) ..escecccecccesceccseeccceeeeecseeseeesseeeessaseessesesssseeeeseesssesseseeeseassuseaseneeees 5
Constitutional Provisions
California Constitution art. 1, § 2(a).........ccceescsseesseeeeneneceeeeeeeaereeeneneeseaeees 39
United States Constitution amend.Io...eeeeee eee cesses eeeeeesseaeeeesees passim
vill
TO THE HONORABLETANI G. CANTIL-SAKAUYE, CHIEF JUSTICE
OF THE STATE OF CALIFORNIA, AND TO THE ASSOCIATE
JUSTICES OF THE CALIFORNIA SUPREME COURT:
Amici Curiae California Newspaper Publishers Association,
Californians Aware, The Center for Investigative Reporting, First
AmendmentCoalition, The Reporters Committee for Freedom ofthe Press,
A&E Television Networks, LLC, BuzzFeed, Inc., Cable News Network,
Inc., CBS Corporation, Dow Jones & Company, First Look Media Works,
Inc., The Hearst Corporation, NBCUniversal Media, LLC, The New York
Times Company, and The Motion Picture Association of America
(collectively, “Media Amici”) respectfully submit this Amici Curiae Brief
in Support ofDefendants and Respondents the City of Carson, James Dear,
and Leonard Bloom.
Forthe reasons discussed below, Media Amici urge this Court to
reverse the Court of Appeal’s impermissibly narrow interpretation of the
“public interest” requirement of Subsection (e)(4) of Code of Civil
Procedure § 425.16 (the “anti-SLAPP”statute), and the incorrect
conclusion it reached as a result — that speech about an individual involved
in an effort to bring a major developmentproject to a municipality was
outside the scope of the anti-SLAPP statute. Because the Court ofAppeal’s
ruling followed other cases that incorrectly have imposed extra-statutory
limitations on the anti-SLAPPstatute’s public interest requirement, Media
Amici urge this Court to disapprove cases that have failed to apply the
public interest standard broadly, and to provide guidance that is consistent
with the statute’s plain language and well-established constitutional
principles.’
APPLICATION TO SUBMIT AMICI CURIAE BRIEF
Pursuant to California Rule of Court 8.520(f), Media Amici
respectfully request this Court’s permission to submit the attached Amici
Curiae Brief. Media Amici include news, entertainment, and publishing
organizations, who themselves or whose members own andoperate
newspapers, magazines, Internet platforms, movie production and
distribution companies, and television and radio stations in California and
throughout the United States. Media Amici also include nonprofit
organizations representing journalists, community groups, and ordinary
citizens, whose missions focus on promoting free speech rights. A further
description of Media Amiciis included in the attached Appendix A.
Media Amici submit this brief to address the interpretation and
application of the anti-SLAPP statute’s public interest requirement. See
C.C.P. § 425.16(b)(1) (applying statute to claims arising from conductin
furtherance of speech “in connection with a public issue”); (e)(4) (statute
' Media Amici submit this brief solely to address the interpretation
and application of the anti-SLAPP statute’s public interest requirement.
They do not concedethat the City of Carson has rightto file an anti-
SLAPP Motion, or take a position on any other issue raised by this appeal.
applies, inter alia, to claims arising from “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”). In this case, the Court of Appeal narrowly construed the “public
interest” requirement, using an approach followed by several intermediate
appellate courts that imposes extra-statutory restrictions on the definition of
“an issue of public interest.” Rand Resources, LLC v. City of Carson, 247
Cal. App. 4th 1080, 1091-96 (2016). Media Amici believe that the Amici
Brief will be of assistance to this Court in tracing the evolution of the
divergent approach followed by the Court ofAppeal here, and explaining
whythat approachis inconsistent with the purpose of the anti-SLAPP
statute and prior decisions of this Court. See Amici Brief, Section III.
Additionally, Media Amici propose that this Court adopt a workable
standard for determining when the “public interest” requirement is met
under the anti-SLAPP statute, based on well-established case law from this
Court and the United States Supreme Court that has enunciated guiding
principles for evaluating matters of “public interest” and “public concern”
in other contexts involving the exercise of free speech. Amici Brief,
Section IV.
Media Amiciare well-positioned to offer this perspective because
they have been involvedin the crafting and implementation oftheanti-
SLAPPstatute since it was first enacted, and have decades of experience
litigating anti-SLAPPcasesat all levels of the court system. See Paternov.
Superior Court, 163 Cal. App. 4th 1342, 1353 (2008) (“[nJewspapers and
publishers, who regularly face libel litigation, were intended to be one of
the ‘prime beneficiaries’ of the anti-SLAPP legislation”) (quoting Lafayette
Morehouse,Inc. v. Chronicle Publ’g, 37 Cal. App. 4th 855, 863 (1995)).
Media Amici rely on the anti-SLAPPstatute to broadly protect their
editorial and creative processes. The prospect of defending against even a
wholly meritless lawsuit can discourage the publication of news reports and
expressive works on matters ofpublic interest. As this Court has
recognized, permitting “unnecessarily protracted litigation would have a
chilling effect upon the exercise of First Amendmentrights.” Winter v. DC
Comics, 30 Cal. 4th 881, 891 (2003) (quotation omitted). Therefore,
“speedy resolution of cases involving free speech is desirable.” Id.
(emphasis added; quotation omitted). See also Baker v. Herald Exam’r, 42
Cal. 3d 254, 268 (1986) (“[t]he threat of a clearly nonmeritorious
defamation action ultimately chills the free exercise of expression”).
The anti-SLAPP statute provides a meansof“screening out meritless
claimsthat arise from protected activity, before the defendantis required to
undergo the expense andintrusion of discovery.” Baral v. Schnitt, 1 Cal.
5th 376, 393 (2016). But its protectionsare illusory if courts follow the
approach applied by the Court of Appeal here, which narrowly interprets
the public interest requirement in a manner that potentially excludes many
content-based claims from the scope of the anti-SLAPP statute. Amici
Brief at Section III. Because Media Amici havea strong interest in
ensuring that the anti-SLAPP statute continues to serve its purpose of
protecting the free flow of information and creative expression to the
public, they respectfully request that this Court grant their Application and
consider the attached Amici Brief.”
AMICI CURIAE BRIEF
1. SUMMARY OF ARGUMENT_
In a series of recent decisions, this Court has reaffirmed that the anti-
SLAPPstatute must be “construed broadly” to further its goal of
encouraging “continued participation in matters ofpublic significance.”
C.C.P. § 425. 16(a)(1).° But there remainsa critical issue that some
intermediate appellate courts have addressed in a mannerthat threatens the
anti-SLAPPstatute’s central purpose. The Court of Appeal’s decision here
is emblematic of this divergent line of cases, which have erroneously
? Pursuant to California Rule of Court 8.520(f)(4), Media Amici
respectfully advise the Court that no party or counsel for a party in the
pending appeal authored the proposed amicusbrief in wholeorin part, or
made a monetary contribution intended to fund the preparation or
submission ofthe brief. No person or entity made a monetary contribution
intended to fund the preparation or submission ofthe brief, other than the
amici curiae, their members, or their counsel in the pending appeal.
> See Barry v. State Bar of California, 2 Cal. Sth 318, 321 (2017);
City of Montebello v. Vasquez, 1 Cal. 5th 409, 416 (2016); Baral v.
Schnitt, 1 Cal. Sth 376, 392 (2016).
restricted the scope of the anti-SLAPPstatute by imposing extra-statutory
limitations on the interpretation of what constitutes a matter of “public
interest” within the meaning ofthe statute. This appeal provides an
opportunity for this Court to disapprove cases that have impermissibly
narrowedthe application of the anti-SLAPPstatute, andto clarify that the
public interest requirement — like other provisions of the statute — must be
applied broadly, consistent with the statute’s plain language and the
Legislature’s clear intent.’
The Legislature resolved any ambiguity aboutthis question 20 years
ago, whenit amended the anti-SLAPP statute to expressly ensure thatit is
broadly construed. See Section II, infra. As this Court recognized,the
1997 amendmentrejected a line of cases that had interpreted the law
narrowly, as applying only to certain types of political speech. See Briggs
v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1120 (1999).
Subsequently, most intermediate appellate courts have recognized that the
public interest requirementalso must be read expansively, just the same as
other provisions of the anti-SLAPPstatute. E.g., Nygard, Inc. v. Uusi-
“ This Amici Brief addresses only the interpretation of the “public
interest’ clause in Code of Civil Procedure § 425.16(e)(4). Media Amici
do not take a position on the other issue presented regarding Subsection
(e)(2) of the anti-SLAPP statute, or on any other question raised by this
case, including the threshold issue of whetherthe plaintiff's claimsarise
from protected conduct, or whetherthe plaintiff can establish a probability
of prevailing on its claims. See Section V, infra; Martinez v. Metabolife
Int’l, Inc., 113 Cal. App. 4th 181, 188 (2003).
Kerttula, 159 Cal. App. 4th 1027, 1042 (2008) (“these cases andthe
legislative history ... suggest that ‘an issue of publicinterest’ ... is any
issue in which the public is interested”); see also Section II, infra.
The Court of Appeal’s decision in this case departs from these
principlesin two significant ways, which are emblematic of the misguided
approach adoptedin several published appellate decisions.
First, the Court of Appeal’s public interest analysis focused narrowly
on the particular statementsat issue, rather than focusing on the broad
subject of the defendant’s speech. See Section IIJ.A, infra. Asa
consequence, although it acknowledgedthat there wasa strong public
interest in information about the City of Carson’s negotiations with the
NFLto bring a football team and major developmentproject to the city, the
appeals court nonetheless concludedthat “the identity of the person
representing the City in its efforts to lure an NFL team to the City is not a
matter of public interest.” Rand Resources, LLC v. City of Carson, 247
Cal. App. 4th 1080, 1095 (2016) (emphasis added).
This narrow interpretation of the anti-SLAPP statute squarely
conflicts with the weight of authority in this area, which hasheld that “the
proper inquiry is whether the broad topic of defendant’s conduct, not the
plaintiff, is connected to a public issue or an issue ofpublic interest.” Doe
v. Gangland Productions, 730 F.3d 946, 956 (9th Cir. 2013) (emphasis
added). See also Hunter v. CBS, 221 Cal. App. 4th 1510, 1526-27 (2013);
Tamkin v. CBS, 193 Cal. App. 4th 133, 143-44 (2011); Terry v. Davis
Community Church, 131 Cal. App. 4th 1534, 1547-49 (2005).
Media Amiciare particularly concerned about this aspect of the
Court of Appeal’s decision, because the same reasoning could be used in
lawsuits targeting newsreports or creative worksthat discuss specific
examplesofpolitical and social issues in the context of addressing broad
topics. See Section III.A. This is not mere speculation: following the
Court ofAppeal issuing its decision in this case, another intermediate
appellate court published an opinion declining to apply the anti-SLAPP
statute to a defamation claim arising from a publication about regulatory
issues at a rehabilitation center, finding that statements about one particular
facility did not involve a matter of public interest. See Dual Diagnosis
Treatment Center, Inc. v. Buschel, 6 Cal. App. Sth 1098, 1101 (2016). The
narrow standard applied by the Court of Appeal here, and by the court in
Dual Diagnosis, ignores the plain language of the anti-SLAPPstatute —
which protects all speech “in connection with ... an issue of public interest”
(C.C.P. § 425.16(e)(4)) — and would dramatically limit its protection.
Second, the Court of Appeal relied on a misguided legal standard
that restricts the interpretation of speech connected to matters of “public
interest” to a few narrow categories of speech. See Section III.B, infra.
This divergent approach began with a set of observations by a single court
in 2003, and morphedinto a multi-part framework that has been applied by
someintermediate appellate courts as a binding public interest test. See
Rivero v. American Federation of State, County and Municipal Employees,
AFL-CIO, 105 Cal. App. 4th 913, 924 (2003); Weinberg v. Feisel, 110 Cal.
App.4th 1122, 1132-33 (2003); Commonwealth Energy Corp.v. Investor
Data Exchange, Inc., 110 Cal. App. 4th 26, 33 (2003); Du Charmev.
International Brotherhood of Electrical Workers, Local 45, 110 Cal. App.
4th 107, 119 (2003).
The Rivero-Weinberg-Du Charme framework wasderived in large
part from inapposite cases dealing with a different legal standardthat is
purposefully more restrictive than the anti-SLAPPstatute’s public interest
requirement. See Section IJI.B, infra. When confronted with fact patterns
that do notfit the framework — but which clearly belong within the scope of
the anti-SLAPP statute — the same courts that issued these opinions have
simply disregarded the Rivero-Weinberg-Du Charmestandard, which
amply demonstrates its shortcomings. Id. Not surprisingly, other
intermediate appellate courts havecriticized this line of cases, pointing out
that they have created extra-statutory limitations that impermissibly narrow
the scope of the anti-SLAPP statute, in contravention of the law’s plain
language and the clearly expressed intention of the Legislature. E.g., Cross
v. Cooper, 197 Cal. App. 4th 357, 381 (2011). The disparate interpretation
of the statutory language has resulted in inconsistent decisions and
confusion that needs resolution by this Court.
Guidance can be provided by looking to well-established case law in
analogousareas offree speech jurisprudence. In the areas of defamation,
privacy, emotional distress, publication of “confidential” information, and
public employee speech, courts have been required to identify speech that
involves matters of “public concern.” See Section IV.A, infra. And. as the
United States Supreme Court recently explained, this adjudication is
possible by applying “guiding principles ... that accord broad protection to
speech to ensure that courts themselves do not become inadvertent
censors.” Snyderv. Phelps, 562 U.S. 443, 452 (2011); see also Section
IV.A,infra.
This Court also has enunciated clear standards for determiningif
speechis of “legitimate public concern,”in evaluating privacy claims
arising from the exercise of free speech rights. Shulman v. Group W
Productions, Inc., 18 Cal. 4th 200, 215 (1998). In doing so, this Court
emphasized that any such inquiry must begin with a presumption that most
speech aboutpolitical, social, and cultural issues is a matter oflegitimate
public concern, and courts must accord substantial deferenceto editorial
judgment. Id. at 224-25. Moreover, consistent with the anti-SLAPP
decisions that correctly have focused the public interest inquiry on the
“broad topic” of the defendant’s speech, this Court held that private facts
claims are barred whentheparticular information disclosed about the
10
plaintiff has a “logical relationship or nexus” with the wider subject of
public concern. Id. at 224.
To ensure that the anti-SLAPPstatute encompassesthe full range of
speech thatit is meant to protect, Media Amici urge this Court to
disapprove the Rivero-Weinberg-Du Charmeline ofcasesto the extent that
they impose extra-statutory limitations on the interpretation of what
constitutes a matter ofpublic interest. See Section III-B, infra. In its place,
this Court should adopt an approach to defining “public interest” that is
consistent with well-established principles of constitutional law, and
satisfies the Legislature’s directive that the statute be broadly construed.
Id. A clear directive from this Court would vindicate the constitutional
interests at the heart of the anti-SLAPP statute, and preserve a meansfor
courts to weed out cases involving purely private matters that do not fall
within the law’s scope. Id.
Il. THE SLAPP STATUTE MUST BE BROADLY CONSTRUED
TO PROTECT FREE SPEECH.
In 1992, the California Legislature enacted Code of Civil Procedure
§ 425.16 “to nip SLAPPlitigation in the bud[,]” by quickly disposing of
claimsthat target the exercise of free speech rights. See Braun v. Chronicle
Publ’g Co., 52 Cal. App. 4th 1036, 1042 (1997). Underthestatute,
[a] cause of action against a person arising from anyact 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 shall
11
be subject to a special motionto strike, unless the court
determinesthat the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.
C.C.P. § 425.16(b)(1).
In defining what constitutes conduct in furtherance of speech “in
connection with a public issue,”the statute identifies several categories of
protected conduct, including “any other conductin 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.”
Id. § 425.16(e)(4). The interpretation of the phrases “public issue” and
“public interest” were subjects of early disagreement among someappellate
courts. A line of cases epitomized by Zhao v. Wong, 48 Cal. App. 4th 1114
(1996), limited anti-SLAPP protections to a “narrowly defined category of
litigation,” and held that the phrase “public interest” referred only “to
speech pertaining to the exercise of democratic self-government.” Id. at
1122, 1133. Other contemporary authorities disagreed, noting that “the
Legislature intended the statute to have broad application,” and that the law
encompassed“the broader constitutional right of freedom of speech.”
Averill v. Superior Court, 42 Cal. App. 4th 1170, 1176 (1996).
Thelatter group of cases recognized that although the anti-SLAPP
statute initially was inspired largely by David and Goliath-type lawsuits
aimedat political petitioning activity, the Legislature purposefully had
crafted a far more expansive law. Asthe appeals court explained in Braun,
12
“(njothing in any portion of[the statute] ... confines free speech to speech
which furthers the exercise of petition rights,” and held that “section 425.16
motions can apply to media defendantsin libel actions.” 52 Cal. App. 4th
at 1045-46.
The Legislature respondedto this split in authority in 1997, by
amendingthe anti-SLAPPstatute in a manner that unequivocally embraced
the Braun/Averill line of cases and their expansive view of the anti-SLAPP
statute’s reach. The amendment added the express requirementthat the
statute “shall be construed broadly.” C.C.P. § 425.16(a). As this Court
explained, the “Legislature’s 1997 amendmentofthe statute to mandate
that it be broadly construed apparently was promptedby judicial decisions”
including Zhao that “were mistaken in their narrow view ofthe relevant
legislative intent.” Briggs v. Eden Council for Hope & Opportunity, 19
Cal. 4th 1106, 1120 (1999). This Court addedthatit “agree[d], moreover,
with the court in Braun v. Chronicle that ‘Zhaois incorrect in its assertion
that the only activities qualifying for statutory protection are those which
meetthe lofty standard of pertaining to the heart of self-government.’” Id.
at 1116 (quoting Braun, 52 Cal. App. 4th at 1046-47).
Since the 1997 amendment, this Court consistently has upheld the
statute’s broad construction. For example, in City of Montebello, this
Court explained that the “Legislature’s directive that the anti-SLAPP
statute is to be ‘construed broadly’ so as to ‘encourage continued
13
participation in matters of public significance’ supports the view that
statutory protection ofacts ‘in furtherance’ of the constitutional rights
incorporated by section 425.16 may extend beyondthe contoursofthe
constitutional rights themselves.” 1 Cal. Sth at 421. Conversely, this Court
has “repeatedly emphasized that the exemptions”to the anti-SLAPPstatute
“are to be narrowly construed.” Id. at 419-20 (quotations omitted). See
also Barry, 2 Cal. 5th at 321 (“[t]he statute instructs that its provisions are
to be ‘construed broadly’”; reading the law expansively to allow for |
motions to strike on jurisdictional as well as merits grounds, and to allow
courts without jurisdiction to award fees to prevailing defendants).°
> See also Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 735
(2003) (adhering to the “express statutory command”that the anti-SLAPP
statute be “construed broadly”); Navellier v. Sletten, 29 Cal. 4th 82, 91
(2002) (the anti-SLAPP statute does not exclude anyparticular type of
cause of action from its operation, and refusing to adopt plaintiffs’ request
to exclude contract and fraud causes of action from the anti-SLAPP
statute’s ambit because it “would contravene the Legislature’s express
commandthat section 425.16 ‘shall be construed broadly’”’); Soukop v.
Law Offices of Herbert Hafif, 39 Cal. 4th 260, 279 (2006) (“the
Legislature has directed that the statute “be construed broadly.’ Tothis
end, when construing the anti-SLAPPstatute, ‘[w]here possible, we
follow the Legislature’s intent, as exhibited by the plain meaning of the
actual wordsofthe law...”) (internal citations omitted); Kiblerv.
Northern Inyo County Local Hospital Dist., 39 Cal. 4th 192, 199 (2006)
(following the Legislature’s requirementthat the courts must “broadly
construe” the anti-SLAPPstatute, and applying it to hospital peer review
proceedings); Club Members For An Honest Election v. Sierra Club, 45
Cal. 4th 309, 318 (2008) (because the anti-SLAPP statute must be
construed broadly, exemption for cases brought purely in the public
interest are construed narrowly to conform with legislative intent); Vargas
v. City of Salinas, 46 Cal. 4th 1, 19 (2009) (noting that after courts
narrowly interpreted the anti-SLAPPstatute, the Legislature amendedthat
14
Many post-amendmentdecisionsofthe courts of appeal also
recognized that the anti-SLAPPstatute’s “public interest” standard must be
broadly construed in accordance with the Legislature’s clear intent. In
Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008), for example,
the Second Appellate District examined the issue at length, observing that
“Section 425.16 does not define ‘public interest,’ but its preamble states
that its provisions ‘shall be construed broadly’ to safeguard ‘the valid
exercise of the constitutional rights of freedom of speech and petition for
the redress of grievances.’” Id. at 1039 (quoting C.C.P. § 425.16(a)).
After examiningthe text of the anti-SLAPPstatute, the 1997
amendment, and many ofthe earlier cases discussed above, the court
concluded:
Taken together, these cases and the legislative history that
discusses them suggest that ‘an issue of public interest’ within
the meaning of section 425.16, subdivision (e)(3) is any issue
in which the public is interested. In other words, the issue
need not be ‘significant’ to be protected by the anti-SLAPP
statute — it is enoughthatit is one in which the public takes an
interest.
law toclarify its intent that it be interpreted broadly, and using a broad
interpretation to find that the anti-SLAPPstatute applied to claims against
governmentofficials); Simpson Strong-Tie Co., Inc. v. Gore, 49 Cal. 4th
12, 21-22 (2010) (recognizing that the anti-SLAPP statute must be
“construed broadly,” and in turn interpreting commercial speech
exemption to the anti-SLAPPstatute narrowly to conform withlegislative
intent).
15
Id. at 1042 (original emphasis). Accord Brodeur v. Atlas Entertainment,
Inc., 248 Cal. App. 4th 665, 674 (2016) (“it is likewise beyond dispute that
the anti-SLAPPstatute, including the scope of the term ‘publicinterest,” is
to be construed broadly”); Hecimovich v. Encinal School Parent Teacher
Org., 203 Cal. App. 4th 450, 464 (2012) (“[like the SLAPPstatuteitself,
the question whether somethingis an issue of public interest must be
‘construed broadly’”) (quoting Gilbert v. Sykes, 147 Cal. App. 4th 13, 23
(2007)); Chaker v. Mateo, 209 Cal. App. 4th 1138, 1146 (2012)(statements
aboutplaintiff's “character and business practices” on consumer website
fell “within the broad parameters of public interest within the meaning of
section 425.16”); Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 808
(2002)(“public interest” requirement, “like all of section 425.16, is to be
construed broadly”); Hilton v. Hallmark Cards, 599 F.3d 894, 905-06 (9th
Cir. 2009) (same;“the activity of the defendant need not involve questions
of civic concern; social or even low-brow topics may suffice”).°
° A wide variety of topics have been found to involve matters of
public interest. E.g., Hilton, 599 F.3d at 908 (birthday card depicting Paris
Hilton); Seelig, 97 Cal. App. 4th at 808 (television show “Who Wants to
Marry a Multimillionaire”); Summit Bank v. Rogers, 206 Cal. App. 4th
669, 694-95 (2012) (“the broad topic ofthe financial stability of our
banking system’’); Hecimovich, 203 Cal. App. 4th at 467 (safety of children
in sports); No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018,
1027 (2011) (“Guitar Hero” video game); Rivera v. First DataBank,Inc..,
187 Cal. App. 4th 709, 716-17 (2010) (treatment for depression); Stewart v.
Rolling Stone LLC, 181 Cal. App. 4th 664, 677-78 (2010) (independent
rock and roll bands); Gilbert v. Sykes, 147 Cal. App. 4th 13, 23 (2007)
(plastic surgery); Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1347
16
II. THE COURT OF APPEAL’S DECISION IN THIS CASE
FOLLOWSA LINE OF AUTHORITY THAT
IMPERMISSIBLY CONSTRUESTHE PUBLIC INTEREST
REQUIREMENT NARROWLY.
Unfortunately, some intermediate appellate courts have departed
from the principles described abovein their interpretation ofthe anti-
SLAPPstatute’s public interest standard. This is apparent in twolines of
authority that are exemplified by the Court of Appeal’s decisionin this
case: decisions that narrowly focus on a particular plaintiff or statement,
and decisions that apply a rigid “public interest” definition that is limited
only to a few types of speech.
A. Focusing On The Specific Plaintiff Or StatementAt Issue,
Instead Of The Broad Topic Of The Speech,Is Error.
| The Court ofAppeal here correctly found that “having an NFL team,
stadium, and associated developments in Carson is no doubt a matter of
substantial public interest.” Rand, 247 Cal. App. 4th at 1093. But it broke
with established constitutional principles and the weight of authority
applying the anti-SLAPPstatute by parsing out “the particular
communications alleged”in the tortious breach of conduct claim, finding
that those statements were not themselves of public interest. Id. at 1094. In
doing so, the court narrowly characterized the plaintiff's fraud claim as
“concerm|[ing] the identity of the person(s) reaching out to the NFL andits
teams’ ownersto curry interest in relocating to Carson,”andheld that
(2007) (Marlon Brando’s will).
17
“(t]he identity of the City’s representative is not a matter of public interest.”
Id. at 1093-94.
This narrow reading of the public interest standard fundamentally
misconstrues the anti-SLAPPstatute, and creates inconsistency and
confusion in the law. Just a few years earlier, another Second Appellate
District panel had addressed the sameissue, in a case wheretheplaintiff
argued that his employment discrimination claim was beyondthe scope of
the anti-SLAPP statute because “the public had no interest in who CBS
selected to serve as its weather anchor.” Hunter v. CBS, 221 Cal. App. 4th
1510, 1526 (2013). In that case, the Court of Appeal applied the correct
standard,noting thatthe plaintiff's argument was “predicated on the
assumption that ... the defendant’s conduct must be in furtheranceoffree
speech rights and maust also qualify as a public issue or issue of public
interest” (emphasis added); as the court explained, however, the statute
“states that conduct must be in furtherance of the exercise of free speech
rights ‘in connection’ with a public issue or issue of public interest.” Id. at
1526-27 (emphasis added). “Thus, the proper inquiry is not whether CBS’s
selection of a weather anchor wasitself a matter of public interest; the
question is whether such conduct was ‘in connection with’ a matter of
public interest.” Id. at 1527 (emphasis added). By looking atthe statutory
languagein its entirety, the appeals court found that the anti-SLAPP statute
applied because “weatherreporting is a matter of public interest,” and
18
“CBS’s decisions regarding who would presentthose reportsto the public
during its broadcasts was necessarily ‘in connection’ with that public
issue.” Id.
The Hunter court’s interpretation built on a numberofprior
decisions that also correctly recognized that in applying the anti-SLAPP
statute, “the proper inquiry is whether the broad topic of defendant’s
conduct, notthe plaintiff, is connected to a public issue or an issue of public
interest.” Doe v. Gangland Productions, 730 F.3d 946, 956 (9th Cir. 2013)
(emphasis added). In Gangland, the Ninth Circuit relied on this Court’s
decision in Taus v. Loftus, 40 Cal. 4th 683 (2007), explainingthat:
the California Supreme Court did not directly address the
question whether a defendant must show specific public
interest in plaintiff under the anti-SLAPP statute. But the
court’s public interest inquiry focused on defendants’ general
activities, not the plaintiff's. The court found that ‘there can
be no question ... that defendants’ general course of conduct
from whichplaintiffs cause of action arose wasclearly
activity ‘in furtherance of [defendants’] exercise of ... free
speech ... in connection with a public issue.’
Gangland, 730 F.3d at 955-56 (quoting Taus, 40 Cal. 4th at 712; original
emphasis; citations omitted). See also Terry v. Davis Community Church,
131 Cal. App. 4th 1534, 1547-49 (2005) (report about alleged improper
personalrelationship between church group leaders and a minor was
protected; “the broad topic ofthe report ...was the protection of children in
church youth programs, whichis an issue of public interest”).
19
In M.G.v. Time Warner,Inc., 89 Cal. App. 4th 623 (2001), former
Little League players and coaches sued for invasionofprivacy after the
defendants used a team photographto illustrate reports about molestation in
youth sports. The court rejected plaintiffs’ attempt “to characterize the
‘public issue’ involved as being limited to the narrow question ofthe
identity of the molestation victims,”finding that definition was“too
restrictive.” Id. at 629. Instead, it concluded “[t]he broad topic of the
article and the program was not whethera particular child was molested but
rather the general topic of child molestation in youth sports.” Id. (emphasis
added).
Likewise, in Tamkin, 193 Cal. App. 4th 133, the court explained that
“fwl]e find no requirementin the anti-SLAPPstatute that the plaintiff's
persona be a matter ofpublic interest.” Id. at 144. Accordingly,that court
held that the anti-SLAPPstatute applied to claims for defamation based on
a pre-broadcastscript for the fictional television program “CSI”that used
the plaintiffs’ actual names. Id. The court properly analyzed the public
interest requirement by determining that“the public was demonstrably
interested in the creation and broadcasting” of the show, rather than
focusing narrowly onthe plaintiffs’ identity. Id. at 143.
As these cases demonstrate, news and entertainment providers such
as Media Amici frequently rely on the anti-SLAPP statute in defending
against claimsthattarget their journalistic and expressive activities. The
20
Court of Appeal’s significant departure from these prior decisions is of
serious concern to the Media Amici, becauseit raises the specter of courts
limiting application of the anti-SLAPP statute only to generic discussions
of broad political and social topics, or statements about individuals who
already are in the public eye, leaving a vast array of speech about important
public issues unprotected.
In both the entertainment and newscontexts, using a particular
individual or event as a mechanism for addressing a broadersocial issue is
the very essence ofstorytelling and reporting. The Second Appellate
District recognized this in a recent decision granting an anti-SLAPP motion
in a lawsuit based on the 1970s period film American Hustle. Brodeurv.
Atlas Entertainment, Inc., 248 Cal. App. 4th 665 (2016). There, author
Paul Brodeur sued the filmmakers for defamation based on a reference to
his work by oneofthe film’s characters in a scene involving safety
concerns about microwaves, which were novel inventions that were just
finding their way into American homes during the time period reflected in
the film. Id. at 669-70.
The court rejected the plaintiff's argument that the “statement made
in the scene ‘has no bearing’ on the film’s depiction of American culture
during the 1970s, and thatthere is no ‘connection’ between the topics of
the film and that scene.” Id. at 677. Because the reference to Brodeur’s
workreflected the wider social issues addressed bythe film, the anti-
2]
SLAPPstatute’s public interest requirement wassatisfied. Id. See also
Sarver v. Chartier, 813 F.3d 891, 902 (9th Cir. 2016) (anti-SLAPP statute
applied to claims based on useofplaintiff's “private persona”in the film
The Hurt Locker; “the private aspects that Sarver alleges the film
misappropriated are inherently entwined with the film’s alleged portrayal of
his participation in the Iraq War,” a broad topic of public interest).
In contrast, the Court ofAppeal’s sweeping conclusion herethat the
“identity of the City’s representative is not a matter of public interest”
threatens to exclude important newsreporting from the scope ofthe anti-
SLAPPstatute. For example, in Four Navy Seals v. AP, 413 F. Supp. 2d
1136 (S.D. Cal. 2005), the plaintiffs brought a privacy action against the
Associated Press for publishing their photos along with a newsstory about
the abuse ofprisoners by U.S. armed forces during the Iraq War. Id. at
1140-41. Theplaintiffs tried to evade the anti-SLAPP statute in an
argument similar to the Court ofAppeal’s rationale in this case, arguing
that “the case involve[d] protecting identities, not chilling speech.” Id. at
1149. But in Four Navy Seals, the court correctly held that the statute
applied because the photos were “relevant” to “the broader topic of
treatmentof Iraqi captives by membersofthe United States military.” Id.
Likewise, in Gangland, the Ninth Circuit held that the anti-SLAPP
statute appliedto the plaintiffs claims that the defendants improperly
disclosed his identity in a television documentary program about gang
22
sos
sp
en
to
ra
t
violence. 730 F.3d at 950. The Ninth Circuit reversed the decision of the
district court, which had “incorrectly determined that Defendants were
required to show an independentpublic interest in Plaintiff’s identity.” Id.
at 955. After surveying the relevant California case law, the Ninth Circuit
foundthat the anti-SLAPPstatute applied “because Defendants
demonstrated a public interest in the broad topics of”their television
program,and they “were not required to show specific public interestin
Plaintiff.” Id. at 956. See also Hall v. Time Warner, 153 Cal. App. 4th
1337, 1347 (2007) (anti-SLAPPstatute applied to TV report identifying
private individual as beneficiary of Marlon Brando’s will becauseit
“concerns a topic of widespread public interest and contributes in some
mannerto a public discussion of the topic”).
The Court ofAppeal’s inconsistent reasoning in this published
decision, and the cases on whichit relied, creates confusion that will
continue to result in improperly narrow applications of the anti-SLAPP
statute. Indeed, a Fourth Appellate District panel recently held that the
statute did not apply to a defamation action arising from the defendant’s
publication that included information abouta regulatory probe of local
rehabilitation center, which included a link to a newspaperarticle reporting
that the head ofthefacility had been stripped of his medical license. Dual
Diagnosis Treatment Center, Inc. v. Buschel, 6 Cal. App. 5th 1098, 1101
(2016). That court made the sameerror as the Court of Appeal in Rand,
23
narrowly focusing ontheplaintiff itself in holding that the “licensing status
of a single rehabilitation facility is not of widespread, public interest,”
becausethat particular facility does not “impact{], or ha[ve] the potential to
impact, a broad segmentofsociety.” Id. at 1105 (quotation omitted).
This restrictive logic would result in many, if not most, local news
stories and other creative conductlosing the protection of the anti-SLAPP
statute. It would strip journalists of the law’s protections whenever
particular individuals or entities are identified as examplesoflarger
political or social issues, and would excludefilmsthattell an individual’s
story as part of a broadercultural narrative. This undulyrestrictive
interpretation not only contradicts the decisions discussed above, which
broadly construed the statute in keeping with the Legislature’s mandate, but
also undermines one ofthe law’s core purposes ensuring a free flow of
information to the public by protecting defendants from the burdens of
protracted, meritless litigation arising from the exercise of free speech. See
Paterno, 163 Cal. App. 4th at 1353 (“[n]Jewspapers and publishers, who
regularly face libel litigation, were intendedto be oneofthe ‘prime
beneficiaries’ of the anti-SLAPPlegislation”) (citation omitted).
B. Some Courts Have Applied An Unnecessary And Unduly
Restrictive Framework For Evaluating The “Public Interest”
Language In The Anti-SLAPPStatute.
The Court of Appeal reached its erroneous conclusion in this case by
applying a frameworkthat narrowly definesissues of public interest:
24
[t]hree general categories of cases have been held to concern
an issue of public interest or a public issue: ‘(1) The subject
of the statementor activity precipitating the claim was a
person or entity in the public eye. [Citation.] [§]] (2) The
statementor activity precipitating the claim involved conduct
that could affect large numbers of people beyondthe direct
participants. [Citation.] [{] (3) The statementor activity
precipitating the claim involved a topic of widespread public
interest.’
Rand, 247 Cal. App. 4th at 1092 (quoting Commonwealth Energy Corp. v.
Investor Data Exchange,Inc., 110 Cal. App. 4th 26, 33 (2003)).
This restrictive approach began with a trio of cases decided in 2003.
In Rivero v. American Federation of State, County and Municipal
Employees, AFL-CIO, 105 Cal. App. 4th 913 (2003), the court held that the
anti-SLAPPstatute did not apply to claims arising from a union’s
statements about the demotion ofa janitorial supervisor who had been
accused of favoring certain employees. Id. at 916-17. The court surveyed
early anti-SLAPP decisions, noting that while “[n]Jone of these cases
defines the precise boundaries of a public issue,” the particular fact patterns
in these prior decisions involved “a personorentity in the public eye ...
conduct that could directly affect a large number of people beyond the
direct participants ... or a topic of widespread, public interest.” Id. at 924.
The court then applied this observation about the circumstances involved in
prior decisions as thoughit presented a definitive, factor-basedtest, holding
that because “the Union’s statements concerned the supervision ofa staff of
eight custodians by Rivero, an individual who had previously received no
25
public attention or media coverage,” and “the only individuals directly
involved in and affected by the situation were Rivero and the eight
custodians,” therefore “Rivero’s supervision ofthose eight individuals is
hardly a matter of publicinterest.” Id.’
Shortly thereafter, in Weinberg v. Feisel, 110 Cal. App. 4th 1122
(2003), the court followed Rivero’s rationale, while adding its own
observations about how “an issue of public interest” should be defined:
Thestatute does not provide a definition for ‘an issue of
public interest,’ andit is doubtful an all-encompassing
definition could be provided. However, the statute requires
that there be someattributes of the issue which makeit one of
public, rather than merely private, interest. A few guiding
principles may be derived from decisional] authorities. First,
‘public interest’ does not equate with mere curiosity ....
Second, a matter of public interest should be something of
concern to a substantial number of people .... Thus, a matter
of concern to the speaker anda relatively small, specific
audience is not a matter of public interest .... Third, there
should be some degree of closeness between the challenged
statements andthe asserted public interest; the assertion of a
broad and amorphouspublic interest is not sufficient. Fourth,
the focus of the speaker’s conduct should be the public
interest rather than a mere effort to gather ammunition for
another round of[private] controversy .... Finally, those
charged with defamation cannot, by their own conduct, create
their own defense by making the claimant a public figure. A
person cannot turn otherwise private information into a matter
of public interest simply by communicatingit to a large
numberofpeople.
7 This Court denied review of Rivero, but Justices Kennard and
Morenovoted in favor of hearing the case. See 2003 Cal. LEXIS 3059.
26
Id. at 1132-33 (quotations and citations omitted). See also Commonwealth
Energy Corp. v. Investor Data Exchange, Inc., 110 Cal. App. 4th 26, 33-34
(2003) (taking the approach from Rivero and Weinberg and convertingit
into a formal three-part test, then concluding that the anti-SLAPPstatute
did not apply becausethe “speech herefits none of the Rivero categories”).
The Court ofAppeal in Rand quoted this language as well, and
applied manyofthese limitations in reaching its conclusionherethatthe
public interest standard was not met. Rand, 247 Cal. App. 4th at 1091-92.
But the “guiding principles” identified by the Weinberg court are all
restrictions that narrow the definition of public interest speech. Weinberg,
110 Cal. App. 4th at 1132-33. This directly contradicts the Legislature’s
direction to interpret the anti-SLAPP statute broadly (see SectionII, supra),
and also stands in sharp contrast to the United States Supreme Court’s
approach of expansively defining matters of public concernin First
Amendmentcasesbased on “guiding principles ... that accord broad
protection to speech to ensure that courts themselves do not become
inadvertent censors.” Snyder v. Phelps, 562 U.S. 443, 452 (2011)
(emphasis added). See Section IV,infra.
Moreover, the Weinberg court drew manyofits observations from
inapposite cases that had applied a different, far narrower, standard for
determining whethera plaintiff should be deemed to be a “public figure”
for purposes of defamation law. See Gertz v. Robert Welch, 418 U.S. 323,
27
346-48 (1974) (discussing the difference between the “public figure” and
“public interest” analyses); Mosesian v. McClatchy Newspapers, 233 Cal.
App. 3d 1685, 1696 (1991) (same; explaining that the “public figure”
standard focuses on “the individual plaintiff's identity and status — 1.e.,
whetherthe plaintiff was a public official/figure or a private individual,” as
opposed to whether the defendant’s speech “addressedissues of general or
public interest”). .
Havingstarted from the incorrect premise that “public figure” cases
provide guiding principles for evaluating speech involving matters of
“public interest,” the Weinberg court concluded that “the assertion of a
broad and amorphouspublic interest is not sufficient.” Weinberg, 110 Cal.
App.4th at 1132. This has since becomean oft-quoted phrase in decisions
applying an unduly narrow view ofthe anti-SLAPP law. E.g., Dual
Diagnosis Treatment Center, 6 Cal. App. 5th at 1104; see also Section A,
supra. But critically, the Weinberg court cited only a single case forits
observation: Hutchinson v. Proxmire, 443 U.S. 111 (1979), a libel decision
that focused entirely on whether the plaintiff was a public figure.
Weinberg, 110 Cal. App. 4th at 1132 (citing Hutchinson, 443 U.S.at 135)).
This Court appropriately has cautioned against using the “public
figure” standard from libel law to determine if the anti-SLAPPstatute’s
muchbroader“public interest” test is met. See Taus, 40 Cal. 4th at 704 n.8
(explaining that it was not necessary to decide if the plaintiff was a limited
28
purpose public figure in order to determine if the anti-SLAPP statute
applied to her claims). Because the Legislature chose to maketheanti-
SLAPPstatute available to all cases arising from speech in connection with
issues of public interest, and not merely those cases brought by public
figures as defined for purposes of defamation law,the restrictionsthat the
Weinberg court derived from public figure libel cases have noplacein this
analysis.
Problems with the Rivera/Weinberg approach quickly became
apparent. In Du Charmev.International BrotherhoodofElectrical
Workers, Local 45, 110 Cal. App. 4th 107 (2003), the samedivision of the
First Appellate District that decided Rivero modified its own ruling, only
five months after Rivero was decided. The court realized that strict
application of the three-part standard would excludesignificant speech of
interest to small communities. But instead of abandoningthatrestrictive
approach, thecourt attempted to address the problem by adding a new gloss
onits prior restrictions. The court held that “in cases wheretheissue is not
of interest to the public at large, but rather to a limited, but definable
portion of the public (a private group, organization, or community), the
constitutionally protected activity must, at a minimum,occurin the context
of an ongoing controversy, dispute or discussion.” Id. at 119 (emphasis
added).
29
Anotherdivision of the First Appellate District further muddied the
water the following year, citing Du Charmefor the proposition that “it is
not enoughthat the statementrefer to a subject of widespread public
interest; the statement must in some manneritself contribute to the public
debate.” Wilbanks v. Wolk, 121 Cal. App. 4th 88, 898 (2004) (emphasis
added).
This misguided andincreasingly restrictive line of authority has
drawn sharp criticism. In Cross v. Cooper, 197 Cal.App. 4th 357 (2011),
for example, the Sixth Appellate District began an extensive discussion of
the Rivero/Weinberg/DuCharmedecisions by notingthat, “[e]ven though
the Du Charmerule was derived from an observation of only three cases
and not based on a more comprehensive survey of cases, an analysis of
legislative intent, or a discussion ofstatutory interpretation, the rule has
been uncritically accepted.” Id. at 381. The court noted:
[T]he result in Du Charmeeasily could have been reached
without the creation of a new rule. Moreover, we believe
new,judicially created prerequisites for anti-SLAPP
protection should be propounded cautiously and with great
perspicacity, especially where, as in Du Charme, the new rule
is based on minimal authority and narrows the meaning of
‘public interest’ despite the Legislature’s mandateto interpret
the anti-SLAPPstatute broadly. Indeed, the adoption of new
prerequisites can raise more questions than they answer, as in
Du Charme, where the court recognized that the new rule
raised difficult additional questions concerning ‘what
limitations there might be on the size and/ornature of a
particular group, organization, or community, in orderforit
to come within the rule we enunciate today.’
30
Id. at 381 n.15 (quoting Du Charme, 110 Cal. App. 4th at 119).
The Cross court also pointed out how “the Wilbanks rule, which
399even further narrows the meaning of‘public interest,’” was similar to the
overly restrictive public interest standard from cases such as Zhao, which
the Legislature expressly rejected in amending the anti-SLAPPstatute in
1997 to expressly require that it be broadly construed. Id. See also Section
II, supra.
But perhapsthe surest indication of the serious flawsin the
Rivero/Weinberg/Du Charme frameworkis the fact that the same courts
that adopted it have chosen not to apply it whenits restrictions would
exclude a lawsuit that plainly should be protected by the anti-SLAPP
statute. For example, in Hecimovich, the same First Appellate District
division that decided Rivero and Du Charmeheldthat the statute applied to
a volunteer youth basketball coach’s lawsuit aimedat parents’ criticism of
his coaching style. 203 Cal. App. 4th at 455-56. The court characterized
the “communicationsandthe dispute” at issue as involving “the conduct of
a kid on a fourth grade basketball team, his parents’ and his coach’s
reactionsto it, and the ultimate resolution of the situation.” Id. at 456.
Although the court included a lengthy discussion of the anti-SLAPP
statute’s public interest standard, it did not cite Rivero, Weinberg,
Commonwealth Energy, or Du Charme, nordid it even mention the three-
part public eye/large numberofpeople/topic of widespread interest
31
framework that those cases espoused. Id. at 464-68. Thatis not surprising,
given that the fact pattern in Hecimovich involved a small group of people,
none ofwhom wasin the public eye, and a subject — how particular
volunteer basketball coach dealt with a fourth-grade player — that could
hardly be described as a matter of widespreadinterest if viewed in
isolation. Id. at 455-56. Nonetheless, the court invoked the anti-SLAPP
statute’s broad construction mandate, and held that the action was within
the scopeofthe statute because “the suitability of [the plaintiff's] coaching
style was a matter of public interest among the parents” onhisparticular
team, and “safety in youth sports, not to mention problem coaches/problem
parents in youth sports, is another issue of public interest within the SLAPP
law.” Id. at 467-68. The result was correct — and was consistent with the
statute’s language andthis Court’s prior decisions — but this ruling cannot
be reconciled with the Rivero/Weinberg/Du Charmeline ofcases.
Similarly, four years after issuing the Weinberg opinion, the Third
Appellate District decided Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007),in
whichit granted an anti-SLAPP motion after engaging in a thorough public
interest analysis that did not mention the three-part framework, or cite any
of the Rivero/Weinberg/Du Charmeline of cases. Id. at 22-24. There, the
court held that claims arising from a patient’s website criticizing her plastic
surgeonfell within the scope of the anti-SLAPPstatute, rejecting the
doctor’s argument that “statements on the Website do not contribute to the
32
public debate because they only concern [the patient’s] interactions with
him.” Id. at 23 (original emphasis). The court broadly applied the statute
by looking at the patient’s entire website, and the topics it encompassed,
rather than focusing only on the statements about her doctor, in concluding
that the speech at issue “contributed toward the public debate aboutplastic
surgery.” Id. at 23.
Here, too, the approach taken by the court was correct. But the fact
that this decision — like the decision in Hecimovich — wasissued by one of
the same courts that developedthe restrictive Rivero-Weinberg-Du Charme
framework, yet did not even cite to these prior cases, demonstrates that the
restrictive standard that this framework embodies does not adequately
protect the free speech interests embodied in the anti-SLAPPstatute.
IV. THIS COURT SHOULD ADOPT A PUBLIC INTEREST
STANDARD THATIS CONSISTENT WITH THE SLAPP
STATUTE’S PURPOSE AND ESTABLISHED
CONSTITUTIONAL PRINCIPLES.
Courts that have attempted to create complicated multi-part
restrictive standards under the anti-SLAPPstatute have been motivated by a
concern that it is too difficult to define “public interest” in evaluating the
application of the statute. E.g., Weinberg, 110 Cal. App. 4th at 1132 (“[t]he
statute does not provide a definition for ‘an issue of publicinterest,’ and it
is doubtful an all-encompassing definition could be provided”); Rivero, 105
Cal. App. 4th at 929 (“some observers havesaid that a public concern test
33
amounts to little more than a message to judges and attorneys that no
standards are necessary because they will, or should, know a public concern
whenthey seeit”) (quotations omitted). But as discussed below,the notion
of identifying public interest speech is deeply embedded in American
constitutional law. This Court should use these well-established principles,
as well as the directive from the Legislature, to provide clear guidance to
trial courts and intermediate appellate courts about the properly broad
interpretation and application of the anti-SLAPPstatute’s “public interest”
language.
A. Decades Of Federal And State Constitutional Law Provide
Guidance For Defining Matters Of “Public Interest” In
Connection With Speech.
Nearly eight decades ago, the United States Supreme Court
addressed the parameters ofprotected speech involving matters of“public
concer,” in striking downa statute that restricted labor picketing. As the
Court explained, the “freedom of speech and of the press guaranteed by the
Constitution embracesat the least the liberty to discuss publicly and
truthfully all matters of public concern without previous restraint or fear of
subsequent punishment.” Thornhill v. Alabama, 310 U.S. 88, 101-02
(1940). The Court again considered whether speech was of “public interest
and concern” whenit held that First Amendmentprotections apply in state
court litigation involving private parties, not just in direct challenges to
34
governmentrestrictions on speech. New York Times Co.v.Sullivan, 376
U.S. 254, 266 (1964).
Following these seminal decisions, courts have developed legal
standards in a wide variety of different free speech contexts that include
evaluating whether speech involves a matter of public interest or public
concern. In defamation law, for example, if the speech is about an issue of
public concern,the plaintiff bears the burden ofproving thatit is materially
false, and the defendant cannotbe held liable without some showing of
fault. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-21 (1990);
Philadelphia Newspapers v. Hepps, 475 U.S. 767, 776-77 (1986).
Similarly, in Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court
held that media defendants and their source could not be held liable for
publishing a recording ofan illegally intercepted phone conversation, even
though disclosure was prohibited under federal and Pennsylvania
wiretapping statutes. Id. at 526-27. The Court reasonedthatthe First
Amendmentbars “punishing disclosures of lawfully obtained information
of public interest by one not involvedin the initial illegality.” Id. at 529.
See also id. at 535 (“a stranger’s illegal conduct does not suffice to remove
the First Amendmentshield from speech about a matter of public
concern”).
Courts also have developed an extensive body of law addressing
whether speechis ofpublic interest in the context of public employees’
35
First Amendmentrights. “To be protected, the speech must be on a matter
of public concern, and the employee’s interest in expressing herself on this
matter must not be outweighed by any injury the speech could cause to the
interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Waters v. Churchill,
511 U.S. 661, 668 (1994) (quotation omitted).*
The United States Supreme Court discussedthis issue at length in
Snyder v. Phelps, 562 U.S. 443 (2011). There, the Court held that
protesters from the Westboro Baptist Church could not be held liable under
several different state law torts (including intentionalinfliction of
emotional distress, invasion ofprivacy by intrusion uponseclusion, and
civil conspiracy) for picketing near a soldier’s funeral service with signs
reading “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re
Going to Hell,” among other such messages. Id. at 448. Framing the
constitutional question, the Court explained that “[w]hetherthe First
Amendmentprohibits holding Westboroliable for its speech in this case
8 Accord Harris v. Quinn, 134 S. Ct. 2618, 2623 (2014) (First
Amendmentdoesnot permit “a State to compel personalcare providers to
subsidize speech on matters of public concern by a unionthat they do not
wish to join or support”); Pacific Gas & Electric Co. v. Public Utilities
Com., 475 U.S. 1, 9 (1986) (First Amendment scrutiny applied to
regulation of utility company’s distribution of newsletter to customers
where the publication “includes the kind of discussion of ‘matters of public
concern’ that the First Amendmentboth fully protects and implicitly
encourages”) (quoting Thornhill, 310 U.S. at 101).
36
turns largely on whetherthat speechis ofpublic or private concern, as
determinedbyall the circumstancesofthe case.” Id. at 451.
Acknowledgingthat “the boundaries of the public concern test are
not well defined,” the Court set forth “some guiding principles, principles
that accord broad protection to speech to ensure that courts themselves do
not become inadvertent censors.” Id. at 452. The Court offered an
expansive definition of “public concern,” holding that “[s]peech deals with
matters of public concern whenit can be fairly consideredas relating to any
matter ofpolitical, social, or other concern to the community ... or whenit
is a subject of legitimate newsinterest; that is, a subject of general interest
and of value and concern to the public.” Id. at 453 (quotations omitted).
“The arguably ‘inappropriate or controversial character of a statementis
irrelevant to the question whetherit deals with a matter of public concern.”
Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)).
The Court further explained that “[d]eciding whether speech is of
public or private concern requiresus to examine the content, form, and
context of that speech, as revealed by the whole record,”and “the court is
obligated to make an independent examination of the whole record in order
to make sure that the judgmentdoes not constitute a forbidden intrusion on
the field of free expression.” Id. (quotations and alterations omitted). “In
considering content, form, and context, no factor is dispositive, andit is
37
necessary to evaluateall the circumstances of the speech, including what
was said, where it was said, and how it wassaid.” Id. at 454.
Applying these principles, the Court determined that although the
content of the defendant’s messages “may fall short of refined social or
political commentary, the issues they highlight — the political and moral
conduct of the United States andits citizens, the fate of our Nation,
homosexuality in the military, and scandals involving the Catholic clergy —
are matters ofpublic import.” Id.
Just as the weight of California authority recognizesthatthe anti-
SLAPPpublic interest analysis must focus on the broad topic of the speech
rather than theparticular plaintiff or statement (see Section III.A, supra),
the Court in Snyder recognized that “even if a few of the signs — such as
‘You’re Going to Hell’ and ‘God Hates You’ — were viewed as containing
messages related to Matthew Snyderor the Snyders specifically, that would
not changethe fact that the overall thrust and dominant theme of
Westboro’s demonstration spoke to broader public issues.” Id. (emphasis
added). Likewise, the Supreme Court rejected the plaintiff's argument that
“the ‘context’ of the speech — its connection with his son’s funeral — makes
the speech a matter of private rather than public concern,” concluding that
Westboro’s “speech is fairly characterized as constituting speech on a
matter of public concern,and the funeralsetting doesnotalter that
conclusion.” Id. at 454-55 (quotation omitted).
38.
The Court cited two examples of speech that would fall outside of
the broad scope of protection, which were drawn from its prior decisions:
(1) the limited distribution of a particular individual’s credit report to five
recipients for the purpose of a business transaction, and (2) sexually explicit
videos made by a police officer. Id. at 453 (citing Dun & Bradstreet v.
Greenmoss Builders, 472 U.S. 749, 762 (1985); City of San Diegov. Roe,
543 U.S. 77, 84 (2004)).
This Court has used a similarly expansive approach to defining
“public interest” in cases that implicate the First Amendmentand Article 1,
Section 2(a) of the California Constitution. For example, in Shulmanv.
Group W Productions, Inc., 18 Cal. 4th 200 (1998), this Court held that
“lack of newsworthiness is an element ofthe ‘private facts’ tort, making
newsworthiness a complete bar to commonlawliability.” Id. at 215. To
reach this conclusion, this Court reviewed decades of First Amendment
jurisprudence to address how courts should determine what matters are of
“legitimate public concern.” Id. at 224-25, 209, Several guiding principles
emerge from the discussion:
First, this Court noted the importance of consistent decision-making.
Citing earlier precedents, it recognized the “strong constitutional policy
against fact-dependent balancing of First Amendmentrights against other
interests.” Id. at 221. “‘Because the categories with which wedeal —
private and public, newsworthy and nonnewsworthy — havenoclearprofile,
39
there is a temptation to balance interests in ad hoc fashion in each case. Yet
history teaches usthat such a processleadstoo close to discounting
society’s stake in First Amendmentrights.’” Id. (quoting Briscoe v.
Reader’s Digest Ass’n, 4 Cal. 3d 529, 542 (1971)).
Second, this Court concluded that the importance ofprotecting First
Amendmentrights required “considerable deference to reporters and
editors” in deciding what wasoflegitimate public interest. Id. at 224. It
explained, “[b]y confining our interference to extreme cases, the courts
‘avoid unduly limiting the exercise of effective editorial judgment.’ ... Nor
is newsworthiness governedby the tastes or limited interests of an
individual judge or juror; a publication is newsworthy if some reasonable
members of the community could entertain a legitimate interest in it.” Id.
at 225 (citations omitted; emphasis added).?
Third, this Court noted that “newsworthiness is notlimited to ‘news’
in the narrow sense of reports of current events,” but the concept “extends
also to the use of names,likenesses or facts in giving information to the
® See also Miami Herald v. Tornillo, 418 U.S. 241, 258 (1974)
(“[t]he choice of material to go into a newspaper... and treatment ofpublic
issues and public officials — whether fair or unfair — constitute the exercise
of editorial control and judgment. It has yet to be demonstrated how
governmental regulation of this crucial process can be exercised consistent
with First Amendment guarantees of a free press as they have evolved to
this time”); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations, 413 U.S. 376, 391 (1973) (“we reaffirm unequivocally the
protection afforded to editorial judgment and to the free expression of
views on these and other issues, however controversial”).
40
public for purposes of education, amusementor enlightenment, when the
public may reasonably be expected to have legitimate interest in whatis
published.” Id. at 225 (quotation omitted). Therefore, it can encompassa
“newsreport or an entertainment feature,” as well as “the reproduction of
past events, travelogues and biographies,”or “information concerning
interesting phases of humanactivity.” Id. (quotations omitted).’°
Fourth, this Court held that in situations involving “otherwise private
individuals involved in events of public interest,” courts should examine
“the logical relationship or nexus, or the lack thereof, between the events or
activities that brought the person into the public eye andtheparticular facts
disclosed.” Id. at 224. This Court concluded that a defendant’s speech
meets the newsworthinesstest if the facts about the plaintiff “have some
substantial relevance to a matter of legitimate public interest,” but fall
outside of this protection “at the point the material revealed ceases to have
any substantial connection to the subject matter of the newsworthy report.”
Id.
Applying these principles, this Court held that an accident victim’s
“appearance and wordsas she was extricated from [an] overturnedcar,
placed in a helicopter and transported to the hospital were of legitimate
1© See also Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860,
865-67 (1979) (“entertainment is entitled to the same constitutional
protection as the exposition of ideas”).
41
public concern,” which barred her disclosure of private facts claim as a
matter of law. Id. at 228-230. This Court reasoned that the video showing
the victim’s “injured physical state (which wasnotluridly shown) and
audio showingherdisorientation and despair were substantially relevant to
the segment’s newsworthy subject matter,” and therefore could not be
considered in isolation from the broad topic of the show. Id. at 229.
Several yearslater in Taus v. Loftus, 40 Cal. 4th 683 (2007),this
Court rejected a private facts claim brought by an individual whose
personal life was discussed in the defendants’ scholarly and journalistic
works about the controversial issue of repressed memories of childhood
abuse. Applying the broad standards enunciated in Shulman,this Court
held that, even assuming the plaintiff was “an otherwise private person
involuntarily involved in an eventofpublic interest,” the statements about
her were newsworthy becauseoftheir relevance to the broadertopic of
defendants’ speech, which wasplainly of public concern. Id. at 719.
Andthis Court applied similar principles in Gates v. Discovery
Communications, Inc., 34 Cal. 4th 679 (2004), in holding that an “invasion
of privacy claim based on allegations of harm caused by a media
defendant’s publication of facts obtained from public official records of a
criminal proceeding is barred by the First Amendmentto the United States
Constitution.” Id. at 696. The holding was premised on the notion that,
“bly placing the information in the public domain on official court records,
42
the State must be presumed to have concludedthat the public interest was
thereby being served,” andthat the “dissemination [of public records] was
in the public interest.” Id. at 695 (quoting Shulman, 18 Cal. 4th at 217-18).
Notably, both Gates and Taus were anti-SLAPP cases, in which the
courts not only held that privacy claims were barred on the merits because
they arose from newsworthy/public interest speech, but also necessarily
found that the anti-SLAPP statute’s threshold public interest standard had
been satisfied. Gates, 34 Cal. 4th at 696; Taus, 40 Cal. 4th at 712-13.
As these authorities make clear, for many decades courts have
successfully applied workable legal standards for identifying speech
involving matters of public interest, by hewing closely to guidingprinciples
designed to protect important free speechrights.
B. This Court Should Adopt An Expansive Public Interest
Standard Consistent With Its Precedents And Other
Constitutional Authorities.
The intermediate court of appeal decisions,like the Rand decision,
that have applied extra-statutory frameworksto limit the definition of
matters of public interest are inconsistent with the plain language and
Legislative intent of the anti-SLAPP statute. See SectionsIII.A,III-B,
supra. They undervalue the free speech interests at the heart of the law,
and, as shown by subsequentdecisions rendered by the very same courts
that developedtheserestrictive standards, they are inadequate to address the
full range of claimsthat fall within the scope of the statute. Id.
43
Accordingly, Media Amici urge this Court to disapprove Rivero, Weinberg,
Commonwealth Energy, Du Charme, and Wilbanksto the extent that they
impose any extra-statutory limitations on the anti-SLAPPstatute’s public
interest standard, as well as any subsequent decisions that have treated the
framework enunciated in these opinionsasa controllingtest.
Instead, this Court should clarify that the anti-SLAPPstatute
incorporates the same broad andflexible public interest standard thatthis
Court and the United States Supreme Court have applied in otherfree
speech contexts: “[s]peech deals with matters of public concern whenit
can befairly considered asrelating to any matter ofpolitical, social, or
other concern to the community ... or when it is a subject of legitimate
newsinterest; that is, a subject of general interest and of value and concern
to the public.” Snyder, 562 U.S. at 453 (quotations omitted). The
definition must be broadly construed (see Section II, supra); the analysis
must focus on the broad topic of the defendant’s speech, rather than the
particular plaintiff or statement at issue (see Section III.A, supra); and
California courts should use the principles enunciated by this Court in
Shulmanto determineif a subject is of legitimate news interest (see Section
IV(A), supra).
This approachbest effectuates the goals of the anti-SLAPPstatute
for several reasons.
44
First, it is appropriate to read the statute as incorporating the broad
public interest standard used in other areas of free speech law because
Section 425.16 expressly references the First Amendment and California
Constitution. The anti-SLAPP statute opens with a declaration that 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.”
C.C.P. § 425.16(a) (emphasis added). It then provides for a special motion
to strike a “cause of action against a person arising from anyact of that
person in furtherance ofthe person’s right of petition or free speech under
the United States Constitution or the California Constitution in connection
with a public issue...” Id. § 425.16(b)(1).
Asonecourt noted in an early anti-SLAPP decision, “Section 425.16
sets out a mere rule of procedure, butit is founded in constitutional
doctrine.” Ludwig v. Superior Court, 37 Cal. App. 4th 8, 21 (1995). And
another court observedthat the “anti-SLAPPstatute reinforcesthe self-
executing protections of the First Amendment.” Paterno v. Superior Court,
163 Cal. App. 4th 1342, 1349 (2008). See also Dowling v. Zimmerman, 85
Cal. App. 4th 1400, 1414 (2001) (Section 425.16 was “designed to protect
citizens in the exercise of their First Amendmentconstitutional rights of
free speech and petition”) (quotation omitted).
45
“Asto section 425.16,” this Court has “said that ‘[t]he plain
languageofthe statute establishes what was intended by the Legislature.’”
City of Montebello v. Vasquez, 1 Cal. Sth 409, 419 (2016) (quoting Jarrow
Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 735 (2013)). The plain
language ofthe anti-SLAPP statute could not be more clear: the law is
designed to protect the free speech guarantees of the California Constitution
and First Amendmentto the United States Constitution. Consequently, the
statute should be interpreted in a manner consistent with state and federal
constitutional law in the area of free speech.
Second, courts have used the Rivero-Weinberg-Du Charme public
interest framework as a means of excluding cases that they simply do not
believe should be within the scope of the anti-SLAPP statute. But asthis
Court recognized in Shulman, regardless of the motive, vital First
Amendmentinterests are jeopardized when courts are permitted to make
largely subjective, ad hoc decisions about whatis and is notof legitimate
interest to the public. Shulman, 18 Cal. 4th at 225 (“[iJn general, it is not
for a court or jury to say how particular story is best covered”). See also
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“[rlegardless of
how beneficent-sounding the purposesof controlling the press might be,”
the Court has “remain[ed] intensely skeptical about those measures that
would allow governmentto insinuate itself into the editorial roomsofthis
Nation’s press”).
46
Accordingly, this Court explained that “[b]y confining our
interference to extreme cases, the courts avoid unduly limiting ... the
exercise of effective editorial judgment,” thus recognizing a strong
presumption that most speech aboutpolitical, social, or cultural issues is of
legitimate public concern. Id. (emphasis added; quotation andalteration
omitted). And as the United States Supreme Court observed in Snyder, an
expansive approach to defining issues of public concern andtheresulting
“broad protection to speech”is essential “to ensure that courts themselves
do not becomeinadvertent censors.” Snyder, 562 U.S.at 452.
Third, adopting a broad public interest standard would not open up
the floodgates for unmeritorious anti-SLAPP motions, becausethestatute
includes otherlimitations which are more appropriate vehicles for weeding
out such cases. First and foremost, the statute only applies to claims
“arising from any act of [the defendant] in furtherance of the person’s right
of petition or free speech ... in connection with a public issue.” C.C.P.
§ 425.16(b)(1). Defendants therefore are required to make aninitial
showing separate and apart from the public interest requirementthat the
claims arise from protected conduct.
This inquiry focuses on the “principal thrust or gravamen ofthe
plaintiff's cause of action.” Martinez v. Metabolife Int’], Inc., 113 Cal.
App.4th 181, 188 (2003) (original emphasis). “[W]henthe allegations
referring to arguably protected activity are only incidental to a cause of
47
action based essentially on nonprotected activity, collateral allusions to
protectedactivity should not subject the cause ofaction to the anti-SLAPP
statute.” Id. Consequently, if the court determines that the principalthrust
or gravamenof a claim is something other than speech or conduct in
furtherance of speech, the claim falls outside the scope of the anti-SLAPP
statute without requiring any consideration of whether the conduct was
related to speech about an issueofpublic interest. See Castillo v. Pacheco,
150 Cal. App. 4th 242, 252 (2007) (because the complaint did not arise out
of protectedactivity, “it is unnecessary to address whetherthe...
challenged conduct was‘in connection with a public issue or an issue of
public interest’ ... or whetherplaintiffs established a probability they would
prevail on their claim”) (citations omitted).
Furthermore, as this Court recently reiterated, the “anti-SLAPP
statute does not insulate defendants from any liability for claims arising
from the protected rights of petition or speech. It only provides a procedure
for weeding out, at an early stage, meritless claims arising from protected
activity.” Baral v. Schnitt, 1 Cal. Sth 376, 384 (2016) (original emphasis).
Underthestatute’s second prong, a claim will notbe strickenifthe plaintiff
can “establish[] that there is a probability that the plaintiff will prevail on
the claim.” C.C.P. § 425.16(b)(1).
Thus, even if a claim arises from protected conduct and the public
interest requirementis met, an anti-SLAPP motion will be denied if the
48
“complaint is both legally sufficient and supported by a sufficient prima
facie showing offacts to sustain a favorable judgmentifthe evidence
submitted by the plaintiff is credited.” Navellier v. Sletten, 29 Cal. 4th 82,
93 (2002) (quotations omitted). Consequently, “the anti-SLAPPstatute
neither constitutes — nor enables courts to effect — any kind of ‘immunity’”
for injury-producing conduct that happens to have some connection to
speech on a matter of public interest. Id. “In so providing ... the
Legislature weighed an appropriate concern for the viability of meritorious
claims against the concern to encourage participation in matters of public
significance.” Id. at 93-94 (quotation omitted).
V. THE PUBLIC INTEREST REQUIREMENTIS MET IN THIS
CASE.
Applying the standardsset forth above,the claimsat issue in this
appealeasily fall within the anti-SLAPP statute’s broad public interest
requirement.
Thelitigation arises from the City of Carson’s efforts to bring an
NFLfranchiseto the city and develop a football stadium and sports and
entertainment complex. Rand, 247 Cal. App. 4th at 1084. The Court of
Appealproperly recognized that this subject is a matter of public concern,
but it narrowly characterized the anti-SLAPP statute’s public interest
requirement basedsolely on the particular statementsat issue:
While having an NFL team, stadium, and associated
developments in Carson is no doubt a matter of substantial
49
public interest, plaintiffs’ complaint does not concern speech
or conduct regarding a large-scale real estate developmentor
bringing an NFL team to Carson andbuildingit a stadium. It
instead concernsthe identity of the person(s) reaching out to
the NFL andits teams’ ownersto curry interest in relocating
to Carson. Theidentity of the City’s representative is not a
matter of public interest .... Furthermore, the particular
communicationsalleged in the cause ofaction,i.e., the false
representation that the EAA would be renewed, [Mayor
James] Dear’s false denial about knowing Bloom, and
communications entailed in meetings between defendants, are
also not matters of public interest.
Id. at 1093-94.
The Court of Appeal applied an improperly narrow legal standard.
See Section IJI.A, supra; see also Taus, 40 Cal. 4th at 712 (public interest
test analyzed by reference to “defendants” general course of conduct from
whichplaintiff's cause of action arose”); Tamkin, 193 Cal. App. 4th at 144
(“[w]e find no requirementin the anti-SLAPPstatute that the plaintiff's
persona be a matter of public interest”); Gangland, 730 F.3d at 956 (“the
proper inquiry is whether the broad topic of defendant’s conduct, notthe
plaintiff, is connected to a public issue or an issue of public interest”).
Here,the identity of the firm negotiating the development deal with
the NFL on behalf of the City, and alleged false representations by the
City’s Mayor regarding which municipal contractor would be conducting
those negotiations, plainly are connected with the wider topic of the
developmentproject itself. Under the unambiguous language ofthe anti-
SLAPPstatute, and given the broad construction mandate, nothing more
50
must be shownto satisfy the public interest requirement here. See Hunter,
221 Cal. App. 4th at 1527 (“the proper inquiry is not whether CBS’s
selection of a weather anchor wasitself a matter of public interest; the
question is whether such conduct was‘in connection with’ a matter of
public interest”).
This result is consistent with this Court’s precedents and other
constitutional authorities. See Section IV(A), infra. The identity of the
City’s contractor conducting the NFL negotiations, and related statements
by the Mayor, havea “logical relationship or nexus”to the wider topic of
the potential NFL-Carson stadium deal and development project. Shulman,
18 Cal. 4th at 224. Just as this Court rejected the suggestion thatit focus
solely on the circumstancesofthe individual accident victim in Shulman,
rather than the broadertopic of the television program,andrejected the
notion that it should focus only on the plaintiff's personal story in Taus,
rather than the public interest themes in the defendants’ publications,it
should reject the Court of Appeal’s narrow focusonthe identity of the
particular public contractor and the individual statements rather than the
broad subject matter of the publicationat issue.
Journalists frequently report on the identity of public contractors,
and other such details that may seem like mere “parochial particulars”
(Rand, 247 Cal. App. 4th at 1094), but are crucial to illuminating how
large-scale policies are formulated and executed. This Court has
51
recognized the strong public interest in the disclosure of such details, and
the wider public policy that is implicated in specific information,in the
analogous context of granting newspapers access to public employeesalary
information under the Public Records Act. See International Federation of
Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court,
42 Cal. 4th 319, 334 (2007) (“i]t is difficult to imagine a morecritical time
for public scrutiny of its governmental decision-making process than when
the latter is determining how it shall spend public funds”)."
Because the City’s potential NFL deal and stadium development
project unquestionably are matters of public interest, as even the Court of
'! Manyother public records decisions have recognizedthe public
interest in learning individual identities that illustrate broader policy issues.
E.g., San Diego County Employees Retirement Ass’n v. Superior Court,
196 Cal. App. 4th 1228, 1232 (2011) (namesofpublic pensionrecipients);
Sacramento County Employees’ Retirement System v. Superior Court, 195
Cal. App. 4th 440, 447 (2011) (same); Sonoma County Employees’
Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 990 (2011)
(same); Long Beach Police Officers Ass’n v. City of Long Beach, 59 Cal.
Ath 59, 74 (2014) (namesofpolice officers involved in shootings);
California Commission on Peace Officers Standards & Training v. Superior
Court, 42 Cal. 4th 278, 297 (2007) (names and employmentinformation of
police officers); Federated University Police Officers Ass’n v. Superior
Court, 218 Cal. App. 4th 18, 21 (2013) (namesofpolice officers involved
in pepper spray incident); CBS, Inc. v. Block, 42 Cal. 3d 646, 654 (1986)
(names of holders of concealed weaponslicenses); CBS BroadcastingInc.
v. Superior Court, 91 Cal. App. 4th 892, 894-95, 908 (2001) (namesof
individuals with criminal convictions with exemptions to work in childcare
facilities); New_York Times Co. v. Superior Court, 218 Cal. App. 3d 1579,
1581, 1586 (1990) (namesofwater district customers who exceededtheir
allocation); California State University, Fresno Ass’n, Inc. v. Superior
Court, 90 Cal. App. 4th 810, 833-34 (2001) (namesofpurchasers of luxury
suites at university arena).
52
Appeal recognized, and the identity of a public contractor negotiating that
deal on behalf of a city and related statements by the Mayorclearly are
connected with that broad topic, this Court should find that the anti-SLAPP
statute’s public interest requirementis satisfied in this case.
III
/II
Il
53
VI. CONCLUSION
Forall of these reasons, Media Amici respectfully request that this
Court disapprove the Rivero-Weinberg-Du Charmeline of cases to the
extent that they impose extra-statutory limitations on what constitutes a
matter of public interest, and adopt a broad approach to defining the public
interest that is consistent with the language and purposeofthe anti-SLAPP
statute and established principles of constitutional law.
Dated: February 23, 2017 DAVIS WRIGHT TREMAINE LLP
KELLI L. SAGER
THOMASR. BURKE
ROCHELLE L. WILCOX
oOa ML
Thomas R. Burke
Attorneys for Amici Curiae
California NewspaperPublishers
Association, Californians Aware, The
Center for Investigative Reporting,
First AmendmentCoalition, The
Reporters Committee for Freedom of
the Press, A&E Television Networks,
LLC, BuzzFeed, Inc., Cable News
Network, Inc., CBS Corporation,
Dow Jones & Company, First Look
Media Works, Inc., The Hearst
Corporation, NBCUniversal Media,
LLC, The New York Times
Company, and The Motion Picture
Association of America
54
CERTIFICATE OF WORD COUNT
Pursuant to California Rules of Court 8.204(c) and 8.486(a)(6), the
undersigned certifies that the text of this Application to Submit Amici
Curiae Brief and Proposed Amici Curiae Brief, including footnotes,
consists of 13,065 words in 13-point Times New Romantype as counted by
the Microsoft Word 2010 word-processing program usedto generate the |
text.
Dated: February 23, 2017 DAVIS WRIGHT TREMAINE LLP
KELLI L. SAGER
THOMASR. BURKE
ROCHELLE L. WILCOX
DAN LAIDMAN
te
Thomas R. Burke
Attorneys for Amici Curiae
California Newspaper Publishers
Association, Californians Aware, The
Center for Investigative Reporting,
First Amendment Coalition, The
Reporters Committee for Freedom of
the Press, A&E Television Networks,
LLC, BuzzFeed, Inc., Cable News
Network, Inc., CBS Corporation,
Dow Jones & Company, First Look
Media Works, Inc., The Hearst
Corporation, NBCUniversal Media,
LLC, The New York Times
Company, and The Motion Picture
Association of America
55
APPENDIX A
Descriptions of Amici Curiae
The California Newspaper Publishers Association (CNPA)is a
non-profit trade association representing more than 1,300 daily, weekly,
and student newspapers in California. For well over a century, CNPA has
defended the First Amendmentrights of publishers to gather and
disseminate — and the public to receive — news and information.
Californians Awareis a nonprofit public benefit corporation
organized underthe laws of California. Its mission is to support and defend
open government, an enquiring press, and a citizenry free to exchangefacts
and opinions on public issues.
The Center for Investigative Reporting, Inc. (CIR) is nationally
respected for setting the highest journalistic standards, and forits signature
approachto investigative reporting and collaboration. To reach a broad and
diverse audience worldwide, CIR producesstories forits website,
revealnews.org, its national radio show and podcast, Reveal, and through
partner media outlets on all platforms.
The First AmendmentCoalition (FAC)is a non-profit advocacy
organization based in San Rafael, California, which is dedicated to freedom
of speech and governmenttransparency and accountability. FAC’s
membersinclude news media outlets, both national and California-based,
56
traditional media anddigital, together with law firms, journalists,
community activists and ordinary citizens.
The Reporters Committee for Freedom of the Pressis a
voluntary, unincorporated association of reporters and editors that worksto
defend the First Amendmentrights and freedom of information interests of
the news media. The Reporters Committee has provided assistance and
research in First Amendmentand Freedom of Information Actlitigation
since 1970.
A+E Networks®, LLC (“AETN”)is an award-winning, global
media content company offering consumers a diverse communications
environmentranging from linear channels to websites, gaming, watch apps
and educational software. A+E Networks is comprised ofAX&E®,
Lifetime®, History®, LMN®, FYI™, VICELAND, H2™, A+E Studios™,
History en Espafiol™, Crime + Investigation™, Military History™,
Lifetime Real Women®, A&E IndieFilms®, A+E Networks
International®, A+E NetworksDigital®, 45th & Dean™, and A+E
Networks Consumer Products™. A+E Networks’ channels and branded
programming reach more than 335 million householdsin over 200
territories. A+E Networks, LLC.is a joint venture of Disney-ABC
Television Group and Hearst.
57
BuzzFeed,Inc. is a media company that producesanddistributes
original news, entertainment and video content, and reachesa global
audience of more than 8 billion content views.
Cable News Network, Inc. (CNN), a division of Turner
Broadcasting System, Inc., a Time Warner Company, is among the most
trusted sources for news and information. Its reach extendsto nine cable
and satellite television networks; one private place-based network; two
radio networks; wireless devices around the world; CNN Digital Network;
CNN Newssource, the world’s most extensively syndicated newsservice;
andstrategic international partnerships within both television and the
digital media.
CBS Corporation is a mass media companythat creates and
distributes content across a variety of platforms to audiences around the
world. CBS’s businesses include the CBS Television Network, CBS News,
CBSSports, CBS Television Stations, CBS Radio, CBS Television Studios,
CBS Global Distribution Group, CBS Interactive, CBS Films, Showtime
Networks, CBS Sports Network, and Simon & Schuster.
Dow Jones & Company,a global provider of news and business
information, is the publisher of The Wall Street Journal, Barron's, Dow
Jones Newswires, MarketWatch, and other publications. Dow Jones has
producedunrivaled content for more than 130 years and today has one of
the world’s largest newsgathering operations. Dow Jonesalso provides
58
information services, including Factiva and Dow Jones Risk &
Compliance. Dow Jonesis a division ofNews Corp.
First Look Media Works,Inc. is a non-profit digital media
companythat publishes The Intercept, amongits other properties. The
Intercept provides an outlet for fearless, adversarial journalism that holds
the powerful accountable. The award-winning newssite produces
investigative reporting, analysis, commentary and multi-media content
focusing on national security, politics, civil liberties, the environment,
technology, criminaljustice, the media and more.
Hearst Corporation is one of the nation’s largest diversified media
and information companies. Its major interests include ownership of 15
daily and more than 30 weekly newspapers, including the San Francisco
Chronicle; hundreds of magazines around the world, including Good
Housekeeping, Cosmopolitan, ELLE and O, The Oprah Magazine; 30
television stations that reach a combined 18 percent ofU.S. viewers,
including three local stations in California; ownership in leading cable
networks; significant holdings in automotive, electronic and
medical/pharmaceutical business information companies; a majority stake
in global ratings agency Fitch Group; Internet and marketing services
businesses; television production; newspaper features distribution; and real
estate.
59
NBCUniversal Media, LLC (NBCUniversal), is one of the world’s
leading media and entertainment companies in the development,
production, and marketing of news, entertainment and information to a
global audience. Among other businesses, NBCUniversal produces and
distributes feature films, owns and operates the NBC television network,
the Spanish-languagetelevision network Telemundo, NBC News,several
newsandentertainment networks including MSNBC and CNBC,and a
television stations group consisting of 29 owned-and-operatedstations.
NBC Newsproducesthe Today show, NBC Nightly News, Dateline, and
Meetthe Press.
The New York Times Companyis the owner of The New York
Times and nytimes.com and maintains bureaus in San Francisco and Los
Angeles.
The Motion Picture Association of America (MPAA)is a not-for-
profit trade association founded in 1922 to address issues of concern to the
. . . 12 . .
United States motion picture industry. Its members andtheiraffiliates are
the leading producers anddistributors of audiovisual entertainmentin the
theatrical, television and DVD/homevideo markets. MPAA often has
2 The members ofMPAA are: Paramount Pictures Corporation;
Sony Pictures Entertainment Inc.; Twentieth Century Fox Film
Corporation; Universal City Studios LLC; Walt Disney Studios Motion
Pictures; and Warner Bros. EntertainmentInc.
60
appeared as amicuscuriae in cases involving claimsthat potentially
implicate the First Amendmentrights of its members.
61
PROOF OF SERVICE
Case No. 8235735
I, the undersigned, declare that I am over the age of 18 years,
employed in the City and County of San Francisco, California, and not a
party to the within action. My business address is 505 Montgomery
Street, Suite 800, San Francisco, CA 94111. On February 24, 2017, I
served the following document(s):
APPLICATION TO FILE AMICI CURTAE BRIEF AND
AMICI CURIAE BRIEF OF MEDIA ENTITIESIN
SUPPORT OF DEFENDANTS AND RESPONDENTS
as follows:
[x] U.S. Mail: I am readily familiar with this firm's practice for
collection and processing of correspondence for mailing with the United
States Postal Service. In the ordinary course of business, such
correspondence is deposited with the United States Postal Service in a
sealed envelope or package that same day with first-class postage
thereon fully prepaid. I served said document on the parties below by
placing said documentin a sealed envelope or package with first-class
postage thereon fully prepaid, and placed the envelope or package for
collection and mailing today with the United States Postal Service at
San Francisco, California addressed as set forth below:
Joseph Ybarra, Esq. CounselforPlaintiff, Appellants,
Aaron M.May,Esq. and Respondents Rand
Kevin H.Scott, Esq. Resources, LLC and Carson El
Huang Ybarra Singer & May LLP Camino, LLC
550 South HopeStreet, Suite 1850
Los Angeles, CA 90071
Email: joseph.ybarra@hysmlaw.com
Sunny Soltani, Esq. Counselfor Defendants and
Anthony Taylor, Esq. Respondents City ofCarson and
Christine Burrows,Esq. James Dear
Aleshire & Wynder LLP
18881 Von Karman Avenue
Suite 1700
Irvine, CA 92612
Email: ataylor@awattorneys.com
62
John V. Tamborelli, Esq.
Tamborelli Law Group
21700 Oxnard Street, Suite 1590
Woodland Hills, CA 91367
Email: jtamborelli@lawtlg.com
Hon. Michael Stern
Superior Court of California,
County of Los Angeles
111 N.Hill Street, Department 62
Los Angeles, CA 90012
Clerk of the Court
California Court of Appeal
Second Appellate District — Div. 1
Ronald Regan State Building
North Tower
300 S. Spring Street, 24 Floor
Los Angeles, CA 90013
Supreme Court of California
Earl Warren Building
350 McAllister Street, Room 1295
San Francisco, CA 94102
Counselfor Defendants and
Respondents Leonard Bloom
and US Capital LLC
(1 copy)
(1 copy)
(Original+8 copies via messenger)
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed on February
24, 2017, at San Francisco, California.
4828-4467-0531v.1 0054409-000024