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Courtney Love responded to Dawn Simorankir's First Amended Complaint by filing an anti-SLAPP motion.
The purpose of the so-called “SLAPP” statute is to eliminate lawsuits brought “primarily to chill the valid exercise of constitutional right of freedom of speech and petition for the redress of grievances.” Code Civ. Proc. Section 425.16(a).
Courts engage in a two-part analysis focusing first on whether the disputed cause of action arises from protected activity under the statute, and if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits. Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576. In determining whether the moving party has met its initial burden, courts consider the pleadings, declarations, and matters that may be judicially noticed. Brill Media Co., LLC v. TCW Group, INC. (2005) 132 Cal.App.4th 324, 330. The motion must be supported (or opposed) by declarations stating facts upon which the liability or defense is based. Code Civ. Proc. § 425.16(b).
If the defendant makes a prima face showing that his conduct is protected under section 425.16, then the burden shifts to plaintiff to establish a “probability” that he will prevail on the claims asserted against the defendant. Governor Gray Davis Committee v. American Taxpayer Alliance (2002) 102 Cal.App.4th 449, 458-459. “[T]he threshold for showing a ‘probability of success’ is quite low.” Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL, § 7:1006 (The Rutter Group 2008) (emphasis added).
Courts do not weigh credibility or evaluate the weight of the evidence. Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700. Instead, they accept as true all evidence favorable to the Plaintiff and assess the defendant’s evidence only to determine whether it defeats Plaintiff’s cause of action as a matter of law. Id. “Only a cause of action that lacks even ‘minimal merit’ constitutes SLAPP.” Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at 700.
I'm going to ignore the first prong of the anti-SLAPP since it is pretty apparent that Love will be satisfy her burden since she allegedly posted the comments on public spaces like Twitter and Myspace.
What I'd like to focus on is on the second prong.
Hyperbole
Love argues quite forcefully that all of the alleged defamatory statements are nothing more than hyperbole. In other words, that Love was merely expressing her opinion.
The law in this subject is that “[S]atirical, hyperbolic, imaginative, or figurative statements are protected because ‘the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of fact.” (citation omitted). However, statements will be deemed actionable if they can “ . . . reasonably be understood as declaring or implying actual facts capable of being proved true or false." Ruiz v. Harbor View Community Ass’n (2005) 134 Cal.App.4th 1456, 1471.
So the question is whether each of the alleged defamatory statements could reasonably be understood to declare or imply actual facts capable of being proved or true or false. I believe the answer is yes with respect to some of the statements.
The allegations of past criminal history would certainly seem to declare or imply facts capable of being proved true or false. The statement that "she has a history of dealing cocaine . . . assualt,(sic) and burglary" is sufficiently specific to constitute a statement of fact the truth of which could easily be ascertained by running a criminal background check. At the very least, it would appear that the statements taken together imply undisclosed facts that may be known to Love, which may be capable of being proved true or false.
People Can Be Defamed On Twitter And Myspace
Love's attorney argued that the context of the statements negates the impression that she is seriously asserting a statement of fact. I expected her attorney to argue this but it is not very convincing as I explained in a previous post. In essence, it is not necessary that anyone believe the statements are true if they are understood in a defamatory sense. So the argument that the statements are not to be taken seriously because they were not made by a journalist or in a national publication is unpersuasive. I mean, is that the standard? So only journalists or people who write for national publications can be taken seriously? What about bloggers? No one takes them seriously?? What about micro-bloggers? This argument is absurd. Anyone is capable of being defamed in any context and that includes Twitter and Myspace. This is especially true since traditional media (e.g. CNN) is increasingly relying on Twitter for breaking news.
Now, as to statements such as "nasty hosebag lying thief" and "vile horrible lying bitch," these statements in isolation clearly would appear to be nothing more than epithets, which are protected by the First Amendment. But a court will not consider these statements in isolation. Rather, the court will consider the totality of the circumstances.
In any event, we will have to wait and see what the court decides. It will not be an easy decision. I look forward to reading the opposition brief.
Related posts:
Twitterers Beware! Courtney Love Gets Sued For Tweets
Courtney Loves Gets Sued For Tweets: Opposing Counsel Drops Two Key Claims
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