September 16, 2013 12:39pm PT by Eriq Gardner
A&E Television Can't Escape Gang Whistleblower's Privacy Lawsuit
The First Amendment can't save A&E Television and Gangland Productions from allegations of endangering a man's life by not blurring him out.
The man ("John Doe") is suing the production companies after he gave an interview for the documentary series Gangland about the white supremacist gang Public Enemy No. 1. He says he was promised that his identity wouldn't be revealed. Instead, producers didn't conceal it in an episode that aired on April 21, 2010.
On Monday, the 9th Circuit Court of Appeals acknowledged in a ruling that Doe's claims arose from A&E's free speech and that information about a notorious prison gang was a matter of public concern. Nevertheless, the appellate court concludes that Doe has demonstrated a probability of prevailing on some of his claims and as a result, has paved the path to a possible trial.
The plaintiff was a police informant who was introduced to a Gangland producer through a police officer. Doe was asked to give an interview because of his familiarity with Public Enemy No. 1, which was started by his childhood friend Scott Miller, who was allegedly murdered by the gang.
Those are about the only things agreed upon by the parties.
Doe says the interview was conditioned on the concealment of his identity. He says he showed up for the taping of the interview with a hat and a bandana. He says he removed the items after being told these articles of clothing wouldn't be needed.
A producer for the show disputes this assessment, saying that a request to conceal Doe's identity was never made.
Doe did sign a release acknowledging that his real name and identity could be used. But Doe says he is dyslexic, illiterate and told the producer he had "extreme difficulty reading." He was allegedly told the document was "just a receipt" for his $300 payment.
After the episode aired, Doe filed a lawsuit, which prompted the defendants to bring an anti-SLAPP motion in an attempt to have the lawsuit dismissed. A trial judge rejected it, leading to an appeal.
In analyzing the dispute, Judge Harry Pregerson of the 9th Circuit has two big chores.
The first is to figure out whether the dispute arises from protected First Amendment activity. The trial judge ruled that it didn't because an illegal broadcast wasn't protected, but the appellate judge disagrees, saying the legitimacy of the broadcast isn't material when addressing the first prong of an anti-SLAPP motion. "Plaintiff's assertion that Defendants fraudulently disclosed his identity has no bearing on whether Defendants engaged in protected activity," writes Judge Pregerson.
After also saying that the trial judge should apply the SLAPP "public interest" requirement broadly, the analysis turns to whether Doe has established a probability of prevailing. If not, the case doesn't go further.
Judge Pregerson examines the release that Doe signed and whether he consented to disclosure of his identity and waived his legal claims. But then there's Doe's allegation of being asked to sign something he informed the producer he couldn't understand. Judge Pregerson says, "At this stage in the proceedings, Plaintiff has made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void."
Without the release, the appellate judge says that Doe has sufficiently shown a reasonable probability of prevailing upon claims of public disclosure of private fact, intentional infliction of emotional distress, false promise and one for declaratory relief. Two claims are out: Doe can't succeed on claiming appropriation of his likeness because of an exception given to newsgathering and can't claim negligent infliction of emotional distress because of an absence of any legal duty by A&E not to reveal private facts during the broadcast.
Finally, A&E asserted that California's Uniform Single Publication Act meant that the suing plaintiff couldn't make "overlapping and duplicative claims," that Doe could sue for fraud or a privacy breach or emotional distress, but not all three.
"We are not persuaded," writes the judge. "Here, under the single publication rule, Plaintiff may not file separate lawsuits across the country based on the Gangland episode, or assert a million claims for public disclosure of private fact based on each audience member who saw his identity. But the rule does not limit Plaintiff to one theory of recovery or one distinct cause of action or claim for relief."
The case has been remanded down to the trial judge for further proceedings.