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Court of Appeal:
Disney’s Alleged Ban on Booking Band Is Protected Conduct
Opinion Says Judge Erred in Finding That Public Discussion Was Not Apt to Be Triggered
By a MetNews Staff Writer
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A complaint alleging that the Walt Disney Company unlawfully barred the Village People from performing at Disneyland and its other venues in the aftermath of the group’s expressed disgruntlement over the media giant’s conduct in connection with 2018 concerts and the alleged coyness of its representatives in feigning a willingness to book future appearances where no such prospect existed was protected conduct, the Court of Appeal held yesterday.
Presiding Justice Judith McConnell of the Fourth District’s Div. One authored the unpublished opinion which reverses the denial by San Diego Superior Court Judge Katherine A. Bacal’s of a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure §425.16. Bacal found that the alleged conduct implicates a public issue but does not meet the criterion of the “catchall” provision of §425.16(e)(4) of promoting discussion of the issue.
That subdivision renders protected “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.”
The action was brought by Karen L. Willis who does business as Harlem West Entertainment, management company for the Village People. Her husband, Victor Willis. is the group’s cofounder and was its original lead singer.
She claims retaliation after she threatened to sue Disney over its alleged failure to provide adequate security at concerts at Disney World in 2018 and interfering with her sound-mixing. Alleging that a “booking ban” was put in place, Karen Willis sued under the Unfair Competition Law and for fraud, civil conspiracy, and declaratory relief.
Partial Agreement
McConnell agreed with Bacal that a public issue is at stake but disagreed with her view that the alleged conduct of the defendants—Walt Disney Company, Walt Disney World Entertainment, and a Disney employee—was not prone to spur public discussion.
As to the presence of a public issue, the presiding justice said:
“All of the alleged conduct relates to whether Disney will hire the Village People to perform their well-known music for the general public at Disney’s popular theme parks. According to Willis, the Village People is a ‘world-famous’ band that has had numerous popular hit songs since its inception five decades ago. Disney, of course, is a mass media and entertainment conglomerate with near-universal brand recognition. Further, the parties do not dispute that a significant number of attendees listen to the music concerts Disney stages at its theme parks. Indeed, in the complaint, Willis describes the Village People’s 2018 Walt Disney World performances as ‘jam packed’ with attendees. Because Disney and the Village People are both squarely in the public eye, the conduct alleged in the complaint implicates a public issue.”
Public Discussion
Turning to the matter of public discussion, McConnell wrote:
“[M]usic is a form of expression and communication protected by the First Amendment….Further, Disney’s selection of musical acts to perform at its theme park concerts contributed to the public discussion about a public issue….Because this conduct furthered the public discourse on a public issue, it can reasonably be said to have been undertaken ‘in furtherance’ of the exercise of a protected form of expression and ‘in connection with’ a public issue—specifically, whether the world-famous Village People would perform their well-known music at Disney’s popular theme parks.”
The jurist rejected Willis’s contention that private discussions between representatives of the Village People and Disney cannot come within the ambit of the catchall provision, saying:
“…Disney’s statements to the band’s agents during these discussions, like its ultimate selection of musical acts, constituted protected conduct. Indeed, any producer of a large- scale concert intended for a vast public audience must negotiate with prospective talent as an antecedent step to booking and later showcasing the talent on stage. Thus, Disney’s conversations with the band’s agents about potentially booking the band can reasonably be viewed as promoting, or furthering, the public discourse about Disney’s concerts, the musical acts that would perform at them, and the music that would be played during them.”
The first prong of the anti-SLAPP statute—an inquiry as to whether protected conduct is in in issue—being satisfied, McConnell declared, it’s up to the trial court, on remand, to determine whether Willis can show a probability of succeeding on the merits, the second prong.
The case is Willis v. The Walt Disney Company, D084434.
Disney was represented by Jean-Paul Jassy of the downtown Los Angeles firm of Jassy Vick Carolan, LLP. Acting for Willis was San Diego lawyers Kevin J. Mirch and Marie C. Mirch.
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