by Paul Alan Levy
Could Donald Trump, who is notorious for his intolerance of public criticism, and who has promised to "open up the libel laws," evade the First Amendment and section 230 stricture on defamation claims by repackaging them under the rubric of the right of publicity? That is the question presented by an appeal now pending in the California Court of Appeal for the First District, home to many of the companies that host the country’s leading social media networks, consumer review sites, and blogging platforms: think Facebook, Twitter, Yelp, Word Press; the list goes on.
Mikel Knight’s Sales Methods, and Their Human Cost
The plaintiff in the case is “Mikel Knight,” the stage name for Jason Cross, a man who has tried to transcend a life of crime (see his criminal record here) by reinventing himself as a “country rap” performer. You won’t find his CD’s in stores, because they are sold person to person by a sales force, organized under the title “Maverick Dirt Road Street Team” (“MDRST”), that goes out in fleets of a dozen or more vans for sales swings lasting nearly a month at a time. According to many of his former employees (as reported here, for example), the working conditions are awful: eighteen hour days, sleeping in the sales vans while using local Wal-Marts for their bathrooms, discipline enforced by corporal punishment at the hands of the supervisory crew or even being left by the side of the road with no way home and no pay (because all sales revenue is surrendered to the supervisors for safekeeping when the sales vans meet up at the Wal-Mart at or after midnight each day).
I have talked to many of these employees – in the course of investigating the case for a Doe client – and there are attractions to this life: the glamor of going on the road, the hint of being allowed to play in the band, and a commission of five dollars per ten-dollar CD sold. I spoke to some former employees who discovered that they were pretty good at sales, and were able to clear as much a a few thousand dollars during a 25-day sales tour. And because Knight’s supervisors recruit in small towns in the mid-South — the very locale where they are selling — and appeal to young men without college degrees and perhaps without even a high school diploma, and because the sellers are paid in cash, this can be pretty good financial return. But even the successful sellers to whom I spoke were angry about how they had been treated, and remorseful for the savage treatment of their fellow sellers that they did nothing to stop, for the other young men whom they had willingly left by the side of the road while driving on in the hope of earning more profits for themselves, and for the serious injuries and even deaths caused when vans driven by sleep-deprived staff, using drugs to keep going, were involved in serious collisions.
Some of this story is told in the media and on the “Saving Country Music” blog, but the main forum for former employees to tell their stories has been Facebook. There is a series of anti-Mikel Knight Facebook pages, most notably a page now called “Public Awareness of Mikel Knight and The Maverick Dirt Road Street Team.” A number of former employees, or their families, have sent their accounts to the anonymous author of this page, who has republished these accounts; others have added their views as commenters on the page, revealing so much of their identifying information as their Facebook names may do.
The Tennessee Litigation
Knight filed a petition for pre-litigation discovery in Tennessee state court in Nashville, saying that he needed to know who was running the page so that he could sue for defamation. Knight also asked the trial judge to grant a TRO requiring Facebook to take down the page, contending that the lies being told about them had led to violence being directed toward his sellers when they arrived in small towns.
A very short TRO was granted ex parte, but Facebook opposed its extension, citing its immunity under Section 230 of the Communications Decency Act but also pointing out that the court had made no that anything stated on the Facebook page was false, not to speak of proving that anything was false, and that the TRO was an impermissible prior restraint). Facebook also argued against allowing discovery of the identity of its user, urging the court to apply the Dendrite standard but also noting that, under Tennessee’s procedures for pre-litigation discovery, the court was obligated to appoint counsel to represent the interests of the absent parties whom the plaintiffs hoped to sue. We were interested in the case because Tennessee does not yet have an appellate case addressing the Dendrite issue and because the serious danger of physical retaliation faced by the author of the page in the event Knight was able to identify her made the facts of the case excellent material for a test case. Facebook notified the court that we were ready to be appointed as counsel for the Doe, and that the Doe was willing to have us. And Knight filed a motion for leave to amend his pre-litigation petition, turning it into a complaint stating defamation claims against the Doe page author as well as against Facebook itself.
In the meantime, I went about contacting former employees to ask them to execute affidavits confirming the truth of what the page was saying about Knight. Many of the former employees were afraid to go on record — apparently, when they sign up with Knight they have to give their home addresses and many of the expressed concern that Knight might retaliate against their families. A courageous few, however, were ready to sign affidavits. I contacted Knight’s counsel to let him know that, if he persisted in trying to identify my client, she would be filing affidavits showing the truth of the accusations about Knight’s sales operations – I suggested that Knight might not want to have to deal with the judicial consequences of having such affidavits filed in his home town.
The judge granted Facebook’s motion to dissolve the TRO based on section 230, thus making clear that no relief was going to be available against Facebook. She set a hearing to give Knight an opportunity to say whether he wanted to proceed with his request for discovery or with the amendment of his complaint to proceed only against the Does. After temporizing and postponing, Knight dismissed his Tennessee proceeding entirely. Because of Tennessee’s one-year statute of limitations for defamation claims, the defamation claims against our Doe client have expired.
The California Litigation
But our Doe client is not yet free of Knight's effort to unmask her. Instead of continuing to proceed in Tennessee, Knight brought a new lawsuit in San Mateo County California, alleging tort claims against several Doe defendants, based on their maintenance of the Public Awareness Facebook page as well as two other Facebook pages (here and here); these claims were also alleged against Facebook along with a breach of contract claim, filed on the theory that Facebook was violating its own terms of service by not removing pages that Knight claimed included defamatory and threatening content. The trial judge had no difficulty dismissing those claims in response to Facebook’s anti-SLAPP motion. But Knight also claimed that Facebook was violating his statutory right of publicity, as well as invoking California’s common law cause of action for misappropriation of name or likeness. His theory there was that (1) the critical pages included his photograph and his name, placed there without his consent, (2) because Facebook serves advertising on all Facebook pages, it derives financial benefit from pages about him, and (3) Facebook gets more financial return as more people visit its pages, and thus benefits from increased viewership due to his own notoriety.
The beauty of these claims, from Knight’s perspective, might well have been his assumption that he could win without having to confront the question whether there was any truth to what the Facebook page authors and commenters were saying about him. And, he might have hoped, Facebook’s deep pocket had the real prospect of a recovery for him; an alternate way to succeed might have worked it, by threatening to recover he might induce Facebook to take down the pages or, at least, to cough up the names of his critics. And just in case, he served discovery requests demanding to know the authors of the pages. (That discovery, of course, was stayed by the anti-SLAPP motion).
Regrettably, the trial judge bought Knight's legal theory, and refused to dismiss the right of publicity claims or the “unfair business practice” claim that turned on that theory. I blogged about that decision at the time, describing what I saw to be its many flaws. See other criticisms of the ruling, by Eric Goldman and Mike Masnick.
Our Arguments Supporting Facebook on Appeal
Facebook has appealed, and yesterday I filed what I believe to be the first of several amicus briefs. We make three related arguments. First, we argue that the California right of publicity should not be available as an alternate cause of action to counteract claimed defamation; even if criticism is made in a forum that is supported by advertising or sold by subscription. There is, I discovered in the course of my research, a decision from a different district of the California Court of Appeals that allowed Clint Eastwood to pursue a defamation claim under the guise of the right of publicity, subject, however, to the requirement that he prove both falsity and actual malice. Our amicus brief argues that this decision is wrong under California law, and also that, even if it is right, Knight has not made the required showing of a probability of success on the elements of falsity and actual malice as needed to avoid dismissal pursuant to the anti-SLAPP statute.
Second, we argue that although section 230's immunity for the hosts of online content does not extend to intellectual property claims, the right of publicity claims brought in this case are not intellectual property claims, but rather defamation claims in disguise. This argument is deliberately narrower than the ones that I outlined in my first blog post about this case (namely, that the Ninth Circuit has held only federal law intellectual property claims are outside section 230, or that a right of publicity claim is never a matter of intellectual property). Facebook itself has made those arguments and, from the amicus brief drafts that I have seen, some other amici will argue that as well. One problem with that approach is that California courts have tended to see the right of publicity as a form of intellectual property. But the very fact that this case was originally brought as a defamation claim in Texas, and then dismissed there after it became cleat that Knight would have to prove falsity, should help the California appellate judges appreciate the fact that this lawsuit does not pursue an intellectual property claim at all.
Third, we point out the consequences of allowing this sort of end run around section 230. Even if, as I expect, Facebook would easily defeat a right of publicity claim based on the allegedly defamatory content of some of the anti-Knight Facebook pages, just having to defend such cases in the future could make it impossible for Facebook, and indeed for other social media platforms, consumer review sites and blogging platforms to sustain the practice of hosting criticism. And that would be a tremendous loss for consumers, not only because it would deprive them of the ability to communicate their views to the public, but also because it could deprive them of a range of views to consider in deciding where to do business in the future.