Metropolitan News-Enterprise


Tuesday, September 17, 2013


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Panel Declines to Throw Out Suit Over Televised Crime Program

Ninth Circuit Says Man Likely to Prevail on Claim Producer Promised to Conceal His Identity, Then Reneged




The Ninth U.S. Circuit Court of Appeals said yesterday that a former gang member may sue the makers of a televised crime program, whom he claims put his life in danger by reneging on a promise to keep his identity confidential.

The panel agreed with Gangland Productions, Inc. and A&E Television Networks, LLC that the suit by “John Doe” implicates their First Amendment rights with respect to a public issue and was subject to California’s anti-SLAPP law. But Judge Harry Pregerson, writing for the court, said the plaintiff presented sufficient evidence to establish a likelihood of prevailing on the bulk of his claims.

Original episodes of Gangland ran on The History Channel between 2007 and 2010. The lawsuit stems from a 2010 episode about Public Enemy No. 1, a Southern California-based gang aligned with the Aryan Brotherhood, according to a 2007 Associated Press story.

Doe claims that the producers gave him $300 to talk about the gang and his friendship with Scott Miller, a co-founder of Public Enemy who was allegedly murdered by fellow members for revealing information about the gang in a television interview. Doe claims he allowed himself to be photographed for the program without a disguise only because he was told that his identity would be concealed through the production process.

The defendants deny that Doe requested or was promised anonymity. They also cited a release that he signed, while Doe claimed the defendants took advantage of his illiteracy and dyslexia, convincing him that the document was nothing more than a receipt for the money he received.

Lower Court Ruling

U.S. District Judge Andrew Guilford of the Central District of California denied the defendants’ anti-SLAPP motion, reasoning that there was sufficient evidence the defendants reneged a promise of anonymity, and that while they had a constitutional right to broadcast the program, they had no right to breach that promise, so the suit did not arise from protected activity.

Pregerson said the district judge conflated the two prongs of the statute.

“To determine whether a defendant has met its initial burden [of showing that the suit arises from protected activity], a court does not evaluate whether defendant’s conduct was lawful or unlawful,” Pregerson said, because the lawfulness of the conduct is part of the second-prong analysis as to whether the plaintiff is likely to prevail on the merits. “Accordingly, California courts consistently hold that defendants may satisfy their burden to show that they were engaged in conduct in furtherance of their right of free speech under the anti-SLAPP statute, even when their conduct was allegedly unlawful.”

The appellate panel also concluded, however, that the plaintiff met his burden under the second prong, as to his claims for public disclosure of private fact, intentional infliction of emotional distress, false promise, and declaratory relief.

Pregerson explained that the court cannot, at this stage of the proceedings, hold that the purported release bars those claims, because the plaintiff presented sufficient evidence that he signed it under false pretenses. Doe, he added, presented enough evidence in support of his claims to avoid summary judgment, which is the standard used to determine likelihood of prevailing under Code of Civil Procedure Sec. 425.16.

Doe cannot, however, prevail on his remaining claims, for appropriation of his likeness and negligent infliction of emotional distress, the appellate jurist said.

‘Public Affairs’

Under Civil Code Sec. 3344(d), a person’s likeness may be used without his or her consent “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” Gangland, Pregerson said, is a “public affairs” program within the broad definition given that term in prior decisions.

The negligence claim does not pass muster, the judge explained, because negligent infliction of emotional distress is not an independent tort in California.

Judges William A. Fletcher and Jacqueline H. Nguyen joined in the opinion.

The case is Doe v. Gangland Productions, Inc., 11-56325, and was argued in the Ninth Circuit by Kelli L. Sager of Davis Wright Tremaine LLP in Los Angeles for the defendants and Eric M. Schiffer of Schiffer & Buus, APC, in Newport Beach for the plaintiff.


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