Thursday, January 11, 2018
Actor Again Loses an Appeal Over Bar on Defamation Action
Second Appeals Panel Affirms an Anti-SLAPP Motion Dismissing an Action By Andrew Keegan Heying Over a False Report That He Was Arrested
By a MetNews Staff Writer
An actor who co-founded a non-denominational spiritual center in Venice, yesterday lost his second appeal in the past 42 days of a Los Angeles Superior Court order granting an anti- SLAPP motion, each of the cases entailing a suit over a false online report that he was arrested.
Plaintiff Andrew Keegan Heying was not even on the Full Circle Venice’s premises on May 8, 2015, when a third party was conducting a fundraising event for the Sea Shepherd Foundation and the premises was raided by the Department of Alcohol and Beverage Control because a fermented tea, known as “kombucha,” was being served. The beverage has a slight alcoholic content.
There were no arrests, merely issuance of a citation to the church. A posting by Fox News that Heying had been “busted” was interpreted as meaning “arrested,” and stories to that effect soon abounded.
Both Court of Appeal opinions from this district—one handed down Nov. 29 by Div. Eight and one yesterday by Div. Two—say that once false reports began appearing on the Internet that were not inherently improbable, other websites, whose editors assumed the reports to be accurate, could parrot them with impunity. Neither case was certified for publication.
Yesterday’s opinion, by Justice Victoria Chavez, affirms Judge Gerald Rosenberg’s granting of an anti-SLAPP motion brought by Newsmax Media, Inc. and Morgan Chilson, operators of newsmax.com. A May 15, 2015 headline on its website read:
“Andrew Keegan, 90’s Heartthrob, Busted for Peddling Illegal Kombucha.”
The article began:
“Andrew Keegan, the actor and 90’s heartthrob, was arrested Friday as part of a spiritual group cited for selling kombucha without a license at a spiritual center in California.”
The headline and lead paragraph paralleled those appearing on various other websites.
Chavez noted that under the anti-SLAPP statute—Code of Civil Procedure §425.16—protected speech embraces “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” She wrote:
“Plaintiff admits that he is a public figure and that members of the public are interested in him and his involvement with Full Circle. The newspaper and online media articles attached to plaintiff’s complaint are abundant evidence of this. Plaintiff argues, however, that because the statements published about him were false, they were not made in connection with an issue of public interest.
“Whether or not the challenged statements were false does not determine whether they constitute protected activity for purposes of the anti-SLAPP statute….
“Plaintiff does not dispute that the Newsmax website on which the article about him was published is a public forum. Websites accessible to the public, such as the Newsmax site which is disseminated to more than 14 million monthly readers, are public forums for purposes of the anti-SLAPP statute….Defendants accordingly met their burden of establishing that the challenged statements were made in a public forum in connection with an issue of public interest and came within the scope of the anti-SLAPP statute.”
Even false statements, the jurist said, can be constitutionally protected.
Addressing the second prong of the statute—whether a plaintiff who is suing over protected speech can show a probability of prevailing on the merits, Chavez said that Heying can’t in light of the burden placed on a public figure in a defamation case to show “actual malice”—that is, knowledge of the falsity or reckless disregard of the truth.
Newsmax produced a declaration from its digital news producer, Alexandra Ward, saying that she saw the various news postings and assumed them to be true.
“Plaintiff’ argues that defendants’ failure to independently investigate the incident, deviation from professional standards, and motivation to maximize reader traffic at the Newsmax website establish their reckless disregard of the truth,” Chavez recited.
Citing the California Supreme Court’s 1984 decision in Reader’s Digest Assn. v. Superior Court, she responded:
“Failure to investigate does not prove actual malice.”
The case is Heying v. Newsmax Media, B278384.
Attorneys on appeal are Kyle Scudiere for Heying and James M. Donovan, Michael J. Glenn, Michael A. Cabin, and Mark A. Lerner of the Law Office of James M. Donovan for Newsmax.
Nov. 29 Opinion
The Nov. 29 opinion, by Presiding Justice Tricia Bigelow, affirmed Los Angeles Superior Court Judge Nancy Newman’s order granting an anti-SLAPP motion to the operators of Examiner.com.
Bigelow said the first prong of the statute was met, explaining:
“There was clear public interest in Heying and the activities of the church he co-founded. A government raid on the church for illegal activity, and Heying’s alleged arrest as part of that raid, was an issue of public interest.”
As to the second prong, she said there was no reason for Examiner.com to realize it was stating a falsehood in relying upon its interpretation of the Fox News story. Bigelow wrote:
“Even assuming Heying established the Fox News article contained defamatory falsehoods, he has not made a showing that there were obvious reasons to doubt the truth or accuracy of the Fox News article. While being ‘busted’ or arrested in connection with kombucha may seem implausible, that there was a kombucha raid at all was improbable, yet true. And, in light of the Fox News article in its entirety, there was no obvious reason to doubt the truth of the statement that Heying was arrested in connection with the kombucha raid.”
That case is Heying v. Anschutz Entertainment Group, B276375.
Copyright 2018, Metropolitan News Company