The First Amendment is Not an Absolute Bar.
These appeals arise from a dispute concerning a television production based on the life of the Mexican-American celebrity Jenni Rivera, who died in a plane crash in December 2012. The entity that controls most of Rivera’s assets, Jenni Rivera Enterprises, LLC (JRE), entered into a nondisclosure agreement with Rivera’s former manager, Pete Salgado, that restricted his disclosure and use of certain personal information about Rivera and her family. Alleging Salgado breached that agreement by disclosing information to the producers and the broadcaster of a television series based on Rivera’s life, JRE sued Salgado and the program’s producers for breach of contract, interference with contract, and inducing breach of contract. JRE also sued the program’s broadcaster for interference with contract and inducing breach of contract. The defendants filed special motions to strike under Code of Civil Procedure section 425.16.1 The trial court denied the motions, and the producers and broadcaster appealed those rulings.
The producers argued JRE failed to demonstrate a probability of success on the merits of its causes of action. The California Court of Appeal concluded JRE satisfied its burden to demonstrate a prima facie case, with reasonable inferences from admissible evidence, that the producers had knowledge of the nondisclosure agreement before taking actions substantially certain to induce Salgado to breach the agreement. Therefore, California Court of Appeal affirmed the trial court’s order denying the producers’ special motion to strike.
The broadcaster makes similar arguments regarding JRE’s case in chief, but also argued the First Amendment provides a complete defense because JRE’s causes of action arise out of the broadcast of matters of public interest. Although First Amendment protection for news gathering or broadcasting does not extend to defendants who commit a crime or an independent tort in gathering the information, it is undisputed the broadcaster did not know of the nondisclosure agreement at the time it contracted with the producers to broadcast the series, and JRE did not show the broadcaster engaged in sufficiently wrongful or unlawful conduct after it learned of the nondisclosure agreement to preclude First Amendment protection.
Regarding the Anti-SLAPP, the California Court of Appeal noted:
Section 425.16 “does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; see Zhang v. Jenevein (2019) 31 Cal.App.5th 585, 592.)
The court accepts the plaintiff’s evidence as true and evaluates the defendant’s showing “only to determine if it defeats the plaintiff’s claim as a matter of law.” (Baral, supra, 1 Cal.5th at p. 385.) “‘In making this assessment, the court . . . must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate any such defenses.’” (Dean v. Friends of Pine Meadow (2018) 21 Cal.App.5th 91, 107; see McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.) “‘“[C]laims with the requisite minimal merit may proceed.”’” (Sweetwater Union High School District v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940; accord, Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1061; see Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [“[t]he ‘burden of establishing a probability of prevailing is not high’”]
Regarding the First Amendment:
“‘[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’” (Snyder v. Phelps (2011) 562 U.S. 443, 452 (Snyder); see Connick v. Myers (1983) 461 U.S. 138, 145.) “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ [citation] or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” (Snyder, at p. 453.) “‘[C]elebrity gossip’” concerning “high profile individuals” constitutes a matter of public concern (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254), and JRE does not contend otherwise.
“The right to speak and publish,” however, “does not carry with it the unrestrained right to gather information.” (Zemel v. Rusk (1965) 381 U.S. 1, 17; see Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 165.) In Branzburg v. Hayes (1972) 408 U.S. 665 the United States Supreme Court held the “First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” (Id. at p. 683.) The press has no “‘special immunity from the application of general laws,’” nor does it have a “‘special privilege to invade the rights and liberties of others.’” (Ibid.)
In Cohen v. Cowles Media Co. (1991) 501 U.S. 663 the United States Supreme Court held the First Amendment did not prohibit a plaintiff from recovering damages against a newspaper for breaching its promise not to publish the plaintiff’s identity as the source of a particular story.
The United States Supreme Court stated that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” (Id. at p. 669; see Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 236 [“the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news”].)
The First Amendment does not “shield the press from torts and crimes committed in the pursuit of a story.” (Wolfson v. Lewis (E.D. Pa. 1996) 924 F.Supp. 1413, 1417; see Raef v. Appellate Division of Superior Court (2015) 240 Cal.App.4th 1112, 1123.)
“While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that ‘without some protection for seeking out the news, freedom of the press could be eviscerated.’” (Shulman, supra, 18 Cal.4th at p. 236, quoting Branzburg v. Hayes, supra, 408 U.S. at p. 681.)
The United States Supreme Court has consistently limited the press’s news ngathering privilege, however, to circumstances in which the press “lawfully obtains truthful information about a matter of public significance.” (Smith v. Daily Mail Pub. Co. (1979) 443 U.S. 97, 103; accord, The Florida Star v. B.J.F. (1989) 491 U.S. 524, 533 (Florida Star); see Bartnicki v. Vopper (2001) 532 U.S. 514, 525, 535 [“a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” so long as the press’s “access to the information . . . was obtained lawfully”]; Cohen, supra, 501 U.S. at p. 671 [“it is not at all clear that [the defendants] obtained [the plaintiff’s] name ‘lawfully’ in this case, at least for purposes of publishing it”].)
By protecting news gathering techniques that lawfully acquire information, “the government retains ample means of safeguarding significant interests upon which publication may impinge.” (Florida Star, at p. 534.) For example, “[t]o the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle [that the government may not punish the publication of lawfully acquired information] the publication of any information so acquired.” (Florida Star, at p. 534; see Shulman, at pp. 242-243 [First Amendment did not bar a cause of action for invasion of privacy where a newspaper published recorded communications between accident victims and rescuers in a helicopter ambulance]; Lieberman v. KCOP Television, Inc., supra, 110 Cal.App.4th at pp. 165-166 [trial court properly denied a special motion to strike a cause of action based on unlawfully recorded communications between a physician and his patients]; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1030-1032 [First Amendment did not bar a cause of action for intentional infliction of emotional distress where a television reporter told small children their neighbors had been killed and filmed their shocked reactions].)
Therefore, the First Amendment protected the broadcaster’s use and broadcast of the information in the series, and California Court of Appeal reversed the trial court’s order denying the broadcaster’s special motion to strike.
If you are faced with California’s Anti-SLAPP issues, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez!
Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.