Archive for January 2014
Mug Shots Won’t Support Defamation Claim
Is it appropriate to call an attorney and scream, “Don’t do it!”?
I came across this article today, and this poor attorney is about to go down a very bad path. I have seen this scenario played out over and over. Should I warn him? Would he listen?
Here’s the scenario.
The City of Santa Barbara apparently has some sort of a gang task force, and the police published a bunch of mug shots of people that were arrested, purportedly in relation to that task force.
Six of the people pictured in those mugs shots or otherwise mentioned took umbrage with being portrayed as gang members, and are threatening to sue. Their attorney held a press conference to announce that he is going to seek $1 million in damages for each of his six clients, and will be filing a claim as required, before filing a legal action.
Don’t do it!
For a number of reasons, such a case won’t survive an anti-SLAPP motion, and your six clients will end up on the hook for all the attorney fees.
Most problematic is that the statements are protected by the common interest privilege, so you’ll need to show that the City acted with malice when it posted those mug shots.
Second, your clients WERE arrested, so if they are going to claim loss of reputation, they’ll need to show that their shame comes not from having their mug shots shown, but rather from the additional fact of being cast as a gang member. How are you going to accomplish that surgical cut?
Finally, to be defamatory, you need to be able to show that the defendant made a verifiable assertion of fact that was false. Did the City really say that your clients are gang members, or are you going to allege that the mug shots and surrounding circumstances implied that they are gang members? The latter is not sufficient.
Hopefully, the attorney is just doing a little saber-rattling, hoping for a settlement, and won’t actually file the complaint. I’ll keep an eye on this one and let you know.
[UPDATE – December 8, 2014] I feel bad. Perhaps I should have picked up a phone. But I’m convinced the attorney probably would not have accepted my advice. I didn’t stumble across the news until today, but according to this article, the attorney did file a claim against the City of Santa Barbara, and did make good on his threat to file a complaint. The City responded with an anti-SLAPP motion, which was granted late in November, about a year after the attorney held the initial press conference that occasioned my prediction that the matter would fail if pursued.
I was unable to find a copy of the Court’s order, but the article published by the Santa Barbara Independent newspaper states that the Court’s ruling found that gang activity was a matter of public interest.
Anti-SLAPP Motions are Used For Just About Everything
This case is a few years old, but it illustrates how anti-SLAPP issues can come up in just about any context. In this entertaining case, Hallmark Cards published a card using Paris Hilton’s likeness, and her ridiculous tag-line, “that’s hot”.
Hilton sued for the unauthorized commercial use of her image and, incredibly, Hallmark brought an anti-SLAPP motion, claiming the card was a matter of public interest. The trial court denied the anti-SLAPP motion, finding the card and its speech was not a matter of public interest, and the Court of Appeals for the Ninth Circuit agreed.
“First, ‘public interest’ does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Finally, … [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.”
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