United States: First Amendment Bars Defamation Suit Against CBS and TV Writer in Libel in Fiction Case

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

In Tamkin v. CBS Broadcasting, a California appeals court has ruled that the First Amendment — through the state's "anti-SLAPP" law — insulates a television writer's creative process from defamation and invasion of privacy claims.

Background

Plaintiffs, husband and wife real estate agents Scott and Melinda Tamkin, brought a defamation and false light/invasion of privacy action against CBS and one of its writers for the popular show CSI, Sarah Goldfinger. Plaintiffs allege that Goldfinger became familiar with them when they represented the seller of a Los Angeles home that Goldfinger had contracted to buy. Goldfinger got out of the sales contract when a property inspection showed that the house needed extensive repairs.

Some years later, Goldfinger collaborated on a CSI script about a married couple in the real estate/mortgage business, where the wife kills herself and attempts to frame her husband for her murder. In an early writer's draft of the script, Goldfinger called the husband and wife "Scott and Melinda Tamkin." Goldfinger testified that it was common practice in the industry to use real names as placeholders for names of characters in drafts, because the show had so many guest characters that initially using a real name helped her remember the characters.

Within six days of the creation of the draft, the names of the characters were changed. The early draft, however, was used by an outside casting service to make synopses that were sent to casting agents. Among other things, the synopses described the "Scott Tamkin" character as a "slick . . . hard drinking extensive bondage/porn watching man . . . [who] feels his world drop out from under him during the mortgage crisis." In the synopses, the "Melinda Tamkin" character's "death may have occurred during kinky sex in which she was handcuffed to the bed." Not surprisingly, the casting synopses made their way to the Internet, where they appeared on CSI fan and spoiler sites.

The episode as broadcast changed the characters' names to Scott and Melinda Tucker. Scott Tucker was shown very drunk, having recently watched bondage pornography, and Melinda was shown dead, handcuffed to the bed. Melinda had committed suicide and sought to frame her husband for murder because she blamed him for the loss of their house to foreclosure.

Plaintiffs alleged that Goldfinger, after being involved in a "failed real estate transaction" with them sought to embarrass them by "creating from whole cloth characters engaged in a reckless lifestyle of sexual bondage, pornography, drunkenness, marital discord, depression, financial straits, and possibly even murder." Decision at 5. The Tamkins acknowledged that their names were changed in the episode that was broadcast, but alleged that "'the damage was clearly done because of the widespread dissemination on the internet' of casting synopses containing [their] names." Id. at 6.

Defendants made an anti-SLAPP motion to strike the complaint, and after some discovery by Plaintiffs into defendants' policies of using a real person's name or persona (including a deposition of Goldfinger) the trial court denied defendants' motion on the basis that their "act and conduct were not protected by the anti-SLAPP statute." Id. at 9.

The Appellate Court disagreed. First, the Court explained that a "SLAPP suit – a strategic lawsuit against public participation – seeks to chill or punish a party's exercise of constitutional rights to free speech . . . . The Legislature enacted section 425.16 – known as the anti-SLAPP statute – to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." Id. (citing Rusheen v. Cohen, 37 Cal. 4th 1048, 1055-1056 (2006)).

The Court then went on to describe the two-part test used to determine if a case should be dismissed under the anti-SLAPP statute: first, whether the defendant sustained its burden of showing that the lawsuit arose from "an act in furtherance of the right of free speech," which would require a showing that "(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." Id. If that burden was sustained, in the second part of the test the burden would fall to the plaintiff to then demonstrate a "probability of prevailing on the lawsuit . . . ." Id. at 9-10. The Court observed that "[o]nly a cause of action that satisfies both parts of the anti-SLAPP statute – i.e., that arises from protected speech . . . and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute." Id. at 10.

The Creation of a Fictional Television Show is the Exercise of Free Speech

In an important holding for the creative community, the Court found that the defendants satisfied the first prong of the test because the "acts" of, among other things, using the Tamkins' names as placeholders in the early script and casting synopses were acts "in furtherance of free speech." Id. at 11. The Court's reasoning was that the creation of a television show, even a fictional show, was in and of itself an exercise of free speech, and thus that the "acts" of using the plaintiffs' names in connection with "the creation, casting, and broadcasting of an episode of a popular television show" was in furtherance of that exercise. Id.

The Court countered the plaintiffs' arguments that it was not necessary to use their real names as placeholders with a strong statement that the creative process should be protected, not analyzed after the fact to see if it could have been done another way. Relying on the Friends writing room case Lyle v. Warner Bros. (discussed further here on this blog) the Court affirmed that "the creative process must be unfettered, especially because it can often take strange turns . . . [w]e 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 . . . ." Id. at 13 (emphasis in original).

The Court also concluded that the defendants' acts were a matter of public interest, pointing to "the posting of the casting synopses on various Web sites and the ratings for the episode" as evidence of the public's interest in the show itself. The Court also affirmatively held that there was no requirement in the anti-SLAPP statute that the Tamkins' personas themselves be a matter of public interest, it was enough that the public was interested in the show.

The Court Finds Plaintiffs' Libel in Fiction Claims Meritless

As for the second prong, whether the plaintiffs' defamation and other claims had minimal merit, the Court concluded that they did not. It reaffirmed the standard for a libel in fiction case, that "a reasonable person . . . would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described," and concluded that no reasonable person would have concluded that the Scott and Melinda Tamkin referred to in the draft script and casting synopses were the LA power couple. Id. at 18. Also, the characters in the episode as broadcast were sufficiently different from the real Tamkins (and even went by a different name) to prevent a reasonable person from thinking they were the Tamkins. While plaintiffs pointed out that internet searches such as "scott tamkin bondage" did yield results referring to the casting synopses, it figured that a reasonable person would not formulate such searches in looking for a real estate agent. Id. at 19. Finally, the Court concluded that defendants could not prevail on their false light claims, because those claims were "in substance equivalent to the . . . libel claims," and thus failed for the same reasons. Id. at 20. It remanded the anti-SLAPP motion to the trial court, with a direction to grant it.

Conclusion

In sum, if it stands, this Decision may become an important weapon in the media defendant's arsenal for its clear statement that activities in connection with the creation and broadcast of fictional television programs are protected by the First Amendment. Some might argue, as plaintiffs did here, that by this Decision the Court has "effectively negate[d] defamation and privacy actions with respect to popular entertainment defendants." Id. at 13. The Court's rejoinder? Any defamation or privacy claim that has even minimal merit will proceed regardless of the anti-SLAPP statute. Id. Perhaps it is this statement that provides the most insight into the Court's decision, and the balancing act it performed: the anti-SLAPP statute will not bar a meritorious defamation claim arising from creative works.

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This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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