Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, April 25, 2011

California Court of Appeal Reverses Lower Court, Grants CBS' Anti-Slapp Motion In "CSI" Case

In an appeal of a lower court's denial of CBS' request for an anti-SLAPP motion on plaintiffs' defamation action based on the use of their names in a script for the popular show CSI: Crime Scene Investigation, the California Court of Appeals, Second Appellate District Division Four, reverses the ruling and grants the network's motion.


To determine whether a lawsuit or cause of action should be disposed of as a SLAPP suit, section 425.16 establishes a two-part test. Under the first part, the party bringing the anti-SLAPP motion has the initial burden of showing that the lawsuit, or a cause of action in the lawsuit, arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity....Once the defendant has met its burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the lawsuit or on the cause of action. ...Only a cause of action that satisfies both parts of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute....On appeal from an order denying an anti-SLAPP motion, the reviewing court independently determines whether both parts of the anti-SLAPP statute are met. ...

A cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) if (1) defendants' acts underlying the cause of action, and on which the cause of action is based, (2) were acts in furtherance of defendants' right of petition or free speech (3) in connection with a public issue. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346 [63 Cal. Rptr. 3d 798].) This court independently determines what acts form the basis for plaintiffs' claims. “[W]e focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it.” (Dyer, supra, 147 Cal.App.4th at p. 1279.) Here, defendants' acts on which the counts alleged in the complaint are based were the acts of using the Tamkins' names as placeholder names for a married real estate couple in the early writers' drafts, sending one of the early writers' drafts to Breakdown Services, approving casting synopses, approving the dissemination of the casting synopses to talent representatives, and broadcasting the episode after changing the last name of the real estate couple to Tucker.

...(3) Next, we determine whether defendants' acts are in furtherance of their exercise of the right of free speech. An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right. ... The creation of a television show is an exercise of free speech. ... [The 1st Amend. to the U.S. Const. protects the creative elements of an artistic work.].) Here, defendants' acts helped to advance or assist in the creation, casting, and broadcasting of an episode of a popular television show.

...( Finally, the acts must be in connection with a matter of public interest. “Section 425.16 does not define ‘public interest,’ but its preamble states that its provisions ‘shall be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ ... In Nygård, this court held that “ ‘an issue of public interest’ … 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.” Here, the creation and broadcasting of CSI episode 913 is an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode.

Respondents contend, however, that defendants' acts are not connected to an issue of public interest. They rely in particular on Dyer, supra, 147 Cal.App.4th 1273. There, the writer used the plaintiff's real name for a character in a film. The writer admitted the film character was based upon the plaintiff, whom she had known in graduate school.... The court concluded that “the assertedly false portrayal of Dyer's persona in [the film was] not conduct in furtherance of defendants' exercise of their constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ...In reaching this conclusion, the court determined that “there is no discernable public interest in Dyer's persona.” ...

We find Dyer distinguishable. The Dyer court did not address whether there was any public interest in the creative process underlying the production of the film. In contrast, defendants here asserted and showed that there was a public interest in the writing, casting and broadcasting of CSI episode 913. Defendants also demonstrated a connection between the use of plaintiffs' names and the creative process underlying episode 913—plaintiffs' full names were used as placeholders for guest characters who would appear on the show. Additionally, the Dyer court focused on the lack of a “discernable public interest in Dyer's persona.” ...We believe the statutory language compels us to focus on the conduct of the defendants and to inquire whether that conduct furthered such defendants' exercise of their free speech rights concerning a matter of public interest. We find no requirement in the anti-SLAPP statute that the plaintiff's persona be a matter of public interest.

...(5) Accordingly, we conclude that defendants' conduct here arose from protected activities because defendants' acts were in furtherance of the exercise of their right of free speech in connection with an issue of public interest. In making this determination, we reject plaintiffs' argument that the ruling would “effectively negate” defamation and privacy actions with respect to popular entertainment defendants. Here, for example, defendants demonstrated that their challenged conduct was in furtherance of the creative process of developing and broadcasting CSI. Moreover, defamation and privacy claims that satisfy the second part of the anti-SLAPP statute—by showing even minimal merit—will still proceed. ...

We also disagree that defendants' acts are not entitled to the protection of the anti-SLAPP statute because it was not necessary for Goldfinger to use real names as placeholders for guest characters when she could have created fictional names to use as placeholders. As stated in a different context, “[t]he creative process must be unfettered, especially because it can often take strange turns, as many bizarre and potentially offensive ideas are suggested, tried, and, in the end, either discarded or used. … [¶] … We must not permit juries to dissect the creative process in order to determine what was necessary to achieve the final product and what was not, and to impose liability … for that portion deemed unnecessary. Creativity is, by its nature, creative. It is unpredictable. Much that is not obvious can be necessary to the creative process.” ... Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality.”].)

The court also ruled that nothing in the description of the Tamkins would lead a reasonable person to identify them with the characters described in the script. Thus, they could not prevail on their defamation and false light causes of action.

The case is Tamkin v. CBS, B221057. Here's coverage from THR Esq., Entertainment Law Matters. The episode at issue? It's number 13, from Season 9: "Deep Fried and Minty Fresh," first aired February 12, 2009,

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