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A California federal judge is inclined to send to arbitration the dispute between the Michael Jackson Estate and HBO over the sex abuse documentary Leaving Neverland, but there’s one thing that’s holding him back. In an order following a hearing earlier this week, U.S. District Court Judge George H. Wu told the parties to deliver briefing on whether a bid to force HBO to arbitration violates the First Amendment.
Jackson’s estate took HBO to court in February, just days before Leaving Neverland premiered on the pay network and detailed allegations from Wade Robson and James Safechuck towards the late pop superstar.
The documentary is alleged to be a violation of a non-disparagement clause in a 1992 contract that once gave HBO the right to air a first-ever televised concert after the release of Jackson’s album Dangerous. Jackson’s estate doesn’t want a judge to determine that issue, however. Instead, it merely aims to compel arbitration pursuant to that same contract. Once that happens, an arbitrator would look at the contract and the documentary and settle the dispute.
HBO, in response, denies there’s an enforceable agreement that hasn’t expired and actually covers Leaving Neverland. The defendant sees this legal gambit as a publicity stunt to denigrate the doc and skirt widely established precedent stopping deceased individuals from pursuing defamation claims.
That a decades-old contract concerning the broadcasting of a concert could implicate the right to air Leaving Neverland is no doubt distasteful to HBO, but federal policy has traditionally favored arbitration with judges often deferring to arbitrators to decide jurisdiction whenever there is any evidence of an agreement to arbitrate. Here, the pay cabler pointed to the language of the old contract to argue that certain disputes in its relationship with Jackson could be handled by courts as well as doubting whether the arbitration provision encompassed a documentary like Leaving Neverland, but the judge interprets such arguments as a controversy over the “scope” of the arbitration agreement. As such, an arbitrator would, in Wu’s eyes, have first crack in determining whether the dispute was arbitrable.
But hold on…
Rather remarkably, and with the potential of breaking some legal ground, HBO is looking to have the judge deem the arbitration provision as unenforceable as a matter of the First Amendment, due process and California public policy. To conclude otherwise, HBO adds, would authorize disguised defamation-after-death claims.
Jackson’s estate responds that it is well established that judicially enforcing arbitration agreements does not constitute state action, meaning it doesn’t trip on the First Amendment, which remember, prevents the government from interfering with the free exercise of speech.
“While the Court agrees that attempting to enforce an arbitration agreement in a contract that includes a non-disparagement clause through the filing of a lawsuit does not initially suggest the presence of state action, the initiation of the litigation itself can trigger First Amendment concerns,” writes Wu.
In other words, going to court to get a duly-appointed judge to order the other side to show up for arbitration may implicate free speech.
“It cannot be doubted that Plaintiffs’ arbitration action is seeking to recover damages based upon Defendants’ broadcasting a documentary,” Wu continues. “Whether that fact should have some effect on the Arbitration Motion should be discussed more thoroughly at the hearing.”
HBO has been authorized to file an anti-SLAPP motion (one arguing that Jackson’s estate is frivolously using the court system to interfere with First Amendment activity) by Aug. 15. By the end of the month, Jackson’s estate will reply. A hearing to consider the First Amendment concerns is now set for Sept. 16.
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