Paul Brodeur, a science writer who claims he was defamed by something Jennifer Lawrence said in David O. Russell’s 2013 film American Hustle, has survived an attempt to knock out his $1 million lawsuit on First Amendment grounds.
This is such an entertaining and ridiculous lawsuit.
In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, “I read it in an article by Paul Brodeur.”
Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.
Brodeur should have been flattered that anyone remembered him, and laughed at the joke, but this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.
At the time, I gave the motion little chance of success, because I didn’t think the movie makers would be able to meet the first prong of the anti-SLAPP analysis, and show that this was a matter of public interest. Apparently the judge agreed, and denied the motion.
[UPDATE (June 6, 2016):] Cases such as this continue to show the importance of the automatic right of appeal, even from denial of an anti-SLAPP motion.
Paul Brodeur’s ridiculous lawsuit survived an anti-SLAPP motion, dooming the defendant (Atlas Entertainment, Inc.) to litigate issues through trial, were it not for the automatic right of appeal. That ability to demand a second look at the applicability of the anti-SLAPP statute resulted in the dismissal of this waste of court resources.
As it had to, the Court of Appeal held:
American Hustle is, after all, a farce. The stage was set at the beginning of the film. (‘Some of this actually happened,’ is the line that appears on screen to start things off, and it sets the tone perfectly.”) The character who utters the allegedly defamatory statement is portrayed throughout the movie as ‘slightly unhinged’ and ‘a font of misinformation,’ and Irving and Rosalyn both refer to the microwave oven as the ‘science oven.’ We doubt any audience member would perceive any of Rosalyn’s dialogue as assertions of objective fact.
The trial court had refused to grant the anti-SLAPP motion, finding no matter of public interest in the film. The Court of Appeal dismissed this position almost out of hand.
[I]t is likewise beyond dispute that the anti-SLAPP statute, including the scope of the term “public interest,” is to be construed broadly. (Nygard, supra, 159 Cal.App.4th at pp. 1039-1042 [discussing cases and legislative history of 1997 amendment adding the directive to construe the statute broadly].) Nygard concludes: “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 enough that it is one in which the public takes an interest.
The Court of Appeal found myriad bases of public interest, from the fact that the film was so popular, to the interest the public has in actors and casting, to the interest in the Abscam investigation in particular (upon which the movie is based) and the 1970’s in general.
The second important takeaway from this case is procedural; namely, don’t get so caught up in the minutia that you lose sight of the fundamental points.
Brodeur was all in a tizzy because what he wrote about in the 1970s was that microwave ovens were unsafe due to the radiation they put out. He never claimed that food cooked in a microwave was unsafe, and certainly never claimed that they take the nutrition out of food. The entire point of his case was that he was defamed by the statement of this fictional character, claiming he had written that microwaves take the nutrition out of food. In his unverified complaint, he alleged he “has never written an article or ever declared in any way that a microwave oven ‘takes all of the nutrition out of food.’”
But in the opposition to the anti-SLAPP motion, Brodeur’s attorneys never established that Brodeur had never made that claim. It could have been established by simply providing a declaration from Brodeur stating exactly what he alleged in his complaint, but his counsel failed to do so, according to the Court of Appeal. Thus, Brodeur failed to make a prima facie showing of falsity.