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Will a California Court’s ruling on an Anti-SLAPP Motion arising from a revenge-porn case stand?

12/10/21

By: Parisa Saleki

In 2017, when Kathryn Hill announced her candidacy for the United States House of Representatives for California’s 25th congressional district, the talk of the town was whether she could beat incumbent representative Steven Knight. In 2018, the topic of conversation was Hill’s victory. Few could have predicted that in 2019, the topic would shift from Hill’s political goals to a revenge-porn scandal that effectively ended her political career and brought rise to lawsuits considering novel legal issues. 

In 2019, political news blog RedState published a report on an alleged affair between Hill and a staffer, which is a violation of congressional ethics rules. Soon after the news broke, Hill admitted to the relationship and resigned from Congress. Concurrently, a British tabloid, the Daily Mail, published nude photos of Hill disseminated by her ex-husband. Other media outlets followed.   

Hill eventually filed a lawsuit in California state court under Civil Code § 1708.85, the state’s revenge porn law, which creates a private cause of action “against a person who intentionally distributes… a photograph… of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person… and (3) the other person suffers general or special damages…” Hill sued Mail Media, Inc. (the Daily Mail publisher), Salem Media Group, Inc. (owner of RedState), and Jennifer Van Laar (RedState editor) for publishing her nude photographs. She also sued her ex-husband Kenneth Heslep for disseminating the photos and Joe Messina (a radio host) for on-air statements referencing the images and an article posted to his blog. See Hill v. Heslep et al., Case No. 20STCV48797 (L.A. Cnty. Super. Ct.). In response to the lawsuit, Mail Media (and other defendants) filed an anti-SLAPP motion. 

California’s anti-SLAPP statute (Civil Code § 425.16) offers defendants a procedural tool to seek early dismissal of lawsuits that target a defendant’s actions taken in furtherance of the “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Civ. Code § 425.16(b)(1). Defendants who seek anti-SLAPP dismissals can file a special motion to strike, which is evaluated under a two-pronged analysis. First, a defendant must establish that the activity giving rise to a plaintiff’s case was a “protected activity” under an enumerated category under the statute. If the defendant is successful, the burden then shifts to the plaintiff to establish that “there is a probability that the plaintiff will prevail on the claim.” A defendant who prevails on an anti-SLAPP special motion to strike is entitled to recover attorneys’ fees and costs incurred in bringing the motion. 

Hill’s case and Media Inc.’s anti-SLAPP Motion to Strike present the novel intersection of California’s anti-SLAPP and revenge porn laws. Media Inc.’s ultimate success could open the door to a new line of defenses for media outlets accused not only of violating revenge porn laws but other cyber torts as well.  
 
On April 7, 2021, Judge Yolanda Orozco of the Los Angeles County Superior Court heard and granted Mail Media’s anti-SLAPP motion to strike. See Hill v. Heslep et al., Case No. 20STCV48797 (Apr. 7, 2021, L.A. Cnty. Super. Ct.). Judge Orozco held, in part, that Mail Media satisfied the first prong of the two-part analysis because “reporting the news is speech subject to the protections of the First Amendment and subject to an anti-SLAPP motion if the report concerns a public issue or an issue of public interest.” Judge Orozco observed that “[t]he character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’ for purposes of section 425.16.” The court stated that “intimate images published by Defendant spoke to Plaintiff’s character and qualifications for her position, as they allegedly depicted Plaintiff with a campaign staffer whom she was alleged to have had a sexual affair with and appeared to show Plaintiff using a then-illegal drug…” Thus, “the gravamen of Plaintiff’s Complaint against Defendant constitutes protected activity under Section 425.16(e)(3) and (4).” 

Under the second prong of the analysis, the court ruled that the newspaper’s activities fell within the “matter of public concern” exemption of the revenge-porn law statute, § 1708.85(c)(4), as the published images “speak to Plaintiff’s character and qualifications for her position as a Congresswoman.” The court ruled that “Plaintiff failed to carry her burden establishing that there is a probability of success on the merits of her claim.” 

Mail Media’s success on the anti-SLAPP motion led not only to dismissal but also to a successful motion for costs and prevailing-party attorneys’ fees, totaling $104,747.75. While the trial court’s orders are non-precedential, the Court of Appeal will have a chance to review them, as, on June 18, 2021, Hill filed notices of appeal for the orders granting several anti-SLAPP motions including that of Mail Media. 

This development of anti-SLAPP caselaw is of critical importance for defendants facing lawsuits alleging cyber tort liability. California’s Anti-SLAPP laws are a powerful tool for California defendants to seek early dismissals and recover attorneys’ fees and costs. The outcome of Hill’s appeal could change the trajectory of cyber tort liability claims against California defendants.  

The attorneys at Freeman, Mathis & Gary, LLP will continue to monitor this appeal and similar cases to best defend clients facing cyber tort lawsuits. If you have questions or would like more information, please contact Parisa Saleki at psaleki@fmglaw.com or your FMG relationship partner.