9:27am PT by Eriq Gardner
Fake Video of Lindsay Lohan Buying Drugs Likely Is Defamatory
A Los Angeles Superior Court judge is set to rule soon that if you approach Lindsay Lohan on a street and hand her a bag of mysterious stones and crystals, that doesn't automatically give the paparazzi a right to photograph the event and present you as her cocaine dealer.
That's essentially what X-17, a celebrity news and photo service, was sued for in April.
The lawsuit came from Peter Dice, a Los Angeles drug counselor, who alleged he had been defamed when X-17 posted a video on its website that quickly went viral in an article titled, "Lindsay Lohan Makes a Purchase in Venice."
X-17 attempted to persuade a judge to drop the lawsuit on First Amendment grounds, but after a hearing Friday, the judge appears to be leaning toward handing the plaintiff a big victory.
According to the original complaint, Dice says he bumped into Lohan and her friend in front of a Venice Beach pub in August 2011. Dice handed her a bag of "healing crystals," which he says are a legal alternative healing medicine. Her friend whispered "cocaine" in Spanish, and Lohan handed the bag back.
The interaction was caught on videotape.
X-17 then posted the video and wrote: "At one point, Lindsay can be seen taking a bag from a friend. Her friend checks out the contents of the bag, and eventually Lindsay takes a different bag from another guy and hands over cash to pay for it."
After X-17 and its president and founder Francois Navarre refused requests by Lohan and Dice to retract the story, Dice sued for slander, libel, invasion of privacy (false light), violations of his publicity rights and intentional infliction of emotional distress.
In response, X-17's lawyers brought an anti-SLAPP motion, arguing that the lawsuit was stifling free speech.
To decide whether the lawsuit survives, the judge has to look at two factors. Both were addressed in a tentative ruling heading into Friday's hearing.
The first is whether the causes of action arise from protected activity in furtherance of the defendants' constitutional right of free speech in connection with an issue of public interest.
On this factor, X-17 wins. The judge is set to accept the celebrity news agency's argument that Lohan is a world-famous public figure who is closely associated with substance abuse problems, and just because X-17 is a tabloid, that doesn't deprive it of First Amendment protection to report on something that the public cares about.
In light of that determination, Dice must then show a probability of prevailing on his claims before his lawsuit goes any further.
Here, X-17 is not so lucky.
The agency argued that Dice was a "limited-purpose public figure" because of his association with Lohan. If the judge accepted this, it would mean that Dice would need to show X-17 acted with actual malice, something that would no doubt be tough to demonstrate.
But, in the tentative ruling, the judge wouldn't give X-17 this legal gift.
"A plaintiff's trivial or tangential participation in the public controversy is not enough," says the judge. "The plaintiff must have ‘thrust [himself or herself] to the forefront' of a public controversy, becoming a factor in the ultimate resolution of it."
The judge continues with one of the best lines ever in a defamation case. He says, "Approaching Lindsay Lohan on a busy public street, in front of paparazzi, with a bag containing a crystalline substance can be fairly characterized as a regrettable decision -- but not one which transformed Plaintiff into a limited-purpose public figure."
The judge is set to throw out the publicity rights claim but keep the others, having determined that Dice has "sufficiently established" that X-17 and Navarre "negligently" published the disputed video and article.
The case isn't quite over, as X-17 argued that even without being able to avail itself of a no-actual-malice defense, the celebrity news agency still can show there was no actionable statements made in the article -- in other words, that it was all opinion and no fact. In the tentative ruling, the judge wasn't ready to address that. But after taking everything under advisement following Friday's hearing, that issue might be addressed soon.
E-mail: [email protected]; Twitter: @eriqgardner