Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of an anti-SLAPP motion or are contemplating a defamation case that could invoke an anti-SLAPP motion, be sure you have a good anti-SLAPP attorney.
Today we discuss two seemingly identical cases, at least from the legal issues they presented, but which ended in completely opposite results.
The Vagaries of Anti-SLAPP Law
In our first example, The New York Daily News (that bastion of journalism) reported on a sex scandal at the fire department, and the article included two photographs. The first photo was a generic stock photo showing firefighters at the scene of a fire. But the second photo is the one that started the brouhaha. Inexplicably the newspaper chose to use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent (so they claimed) was simply to use Cheney as a representation of a firefighter. But here was an article about a sex scandal, with a picture of Cheney. How could any reasonable person take that as anything other than an implied reference that Cheney was one of the firefighters involved?
Cheney certainly thought his photo would be taken that way, so he sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.
So, the rule of law appears to be that if your photo is included in a sex scandal story, don’t bother suing, because the court will throw out your case if the other side brings an anti-SLAPP motion, because you won’t be able to prove a likelihood of success on your case. Good to know.
Now we turn to the case of Leah Manzari v. Associated News Ltd.
In this case, an online newspaper called the Daily Mail Online published an article about the porn industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” Shocking! “Who might the ‘female performer’ be?”, readers no doubt asked. Oh look, along with the article the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe.
Like Cheney, Manzari was devastated that her photo was attached to a scandalous article, so she sued for defamation, stating that the article falsely implied that she tested positive for HIV.
The article never used Manzari’s real name or film name, so under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right?
Well, the attorneys for the Daily Mail thought that was the rule, so they brought an anti-SLAPP motion, claiming that a stock photo included in a scandalous article does not imply that the person is the photo was one of the scandalous people. Based on the logic of the firefighter case, the motion should be granted, right?
Wrong. In this case, the trial court judge and the California Court of Appeal both came to an entirely different conclusion, finding that the photograph could reasonably be interpreted to imply that Manzari was the positive-testing porn star in question.
The Court of Appeal had some fun with the newspaper’s claim that the photo created no such implication. The Ninth Circuit analogized this case to a newspaper running the headline: “High Profile Figure Accused of Murder” alongside a stock photograph of a mayor of a major city, or “Industry Shocked that Grocery Sprayed Veggies with Pesticide” alongside a stock photograph of a national-recognized grocery store name. Where such occurs, “the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.” The publication must be taken as a whole, including the headline and photos.
You need a good anti-SLAPP attorney.
Too seemingly identical fact patterns, with completely different results, most likely turning on the presentation presented by counsel for defendants.
Just today I received a call from a potential client, using the immortal words, “slam dunk case”. As you can see, no matter how seemingly obvious the facts and law seem to be, courts can come up with completely divergent conclusions. I would have expected that a situation where someone’s photo is attached to a scandalous article, when the person has no connection to the scandal, would be about as close to a slam dunk case as you could get. In the first case I would have been wrong, and in the second case I would have been right, but neither was a slam-dunk (as evidenced by the fact that even in the HIV case, the dispute went all the way to the 9th Circuit).
Defamation cases are very complex, given the overlays of free speech, privilege, and the anti-SLAPP statutes. If you decide to pursue or defend a defamation action, be sure you have an experienced defamation and anti-SLAPP firm like Morris & Stone in your corner.