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When it comes to Hollywood, secrets abound. Perhaps none rise to a matter of national security. Nevertheless, as WikiLeaks founder Julian Assange prepares to defend himself from the U.S. government’s charge of spilling its secrets, a smaller dispute concerning the late Mexican-American pop star Jenni Rivera showcases both the scope and limitations of the First Amendment in obtaining and then disclosing confidential information.
In 2016, Univision prepared to air a series titled Su verdadero nombre era Dolores (Her Real Name Was Delores). The subject of the show was Rivera’s life. The project was co-produced by BTF Media, which had a deal with a company co-owned by Pete Salgado, Rivera’s ex-business manager. According to a press release at the time, Su verdadero nombre era Dolores would be based on a book by Salgado.
That created one big problem, which became the subject of a notable ruling on Wednesday from a California appeals court: Selgado was restricted from sharing the Mexican pop star’s secrets thanks to a nondisclosure agreement. That prompted a lawsuit from the Jenni Rivera Estate, and while her heirs couldn’t stop the series from airing, both Univision and BTF Media were unsuccessful in their attempts to immediately dismiss claims of interfering with a hush deal.
According to Wednesday’s opinion, part of the trial court’s decision to allow the case to move forward was in error.
California Appellate Justice John Segal sets up the First Amendment showdown.
He writes that speech on matters of public concern occupy the highest rung of the hierarchy of First Amendment values, yet he also notes precedent establishing that the right to speak and publish doesn’t carry with it an unrestrained right to gather information. While it may be true that the newsgathering of lawfully acquired information is protected, there are some activities — like using telephoto lenses to intrude upon private establishments — that are outside the bounds.
Univision insisted that the First Amendment provided a complete defense to claims over the Rivera series because such claims arose out of a publication of a “truthful account of a newsworthy event about a public figure.”
The Jenni Rivera Estate responded by stressing how Univision paid money to intentionally encourage a breach of secrets, and that such activity went beyond “traditional means of news-gathering.”
Is paying for a television series that will divulge secrets like a reporter who asks questions of those in a position of confidence? Or is it akin to a reporter who trespasses into a home to score a scoop?
“California courts have not determined where intentionally interfering with a nondisclosure agreement falls on this continuum,” writes Segal, adding that other jurisdictions and legal scholars have been wary of extending liability to the media on tortious interference claims, especially on matters of public significance.
“We need not decide the broad question whether the torts of inducing a breach of contract and interfering with a contract are ‘independent torts’ such that the First Amendment can never provide a defense to such claims when they arise from conduct that leads to the publication or broadcast of truthful and newsworthy information,” continues the appeals court. “Here, it is uncontroverted Univision had no knowledge of the nondisclosure agreement at the time it entered into the license agreement with BTF. The evidence of Univision’s actions, after it learned of the nondisclosure agreement, that arguably contributed to Salgado’s continued breaches of the agreement consisted of continuing to pay license fees to BTF and promoting Salgado’s involvement with the Series. Even if those actions were sufficient to serve as the basis of liability for tortious interference, they are not sufficiently ‘wrongful’ or ‘unlawful’ to overcome the First Amendment newsgathering and broadcast privileges.”
It’s a very favorable decision for Univision, which is able to reverse an order denying its SLAPP motion. As a result, Univision will escape the case.
However, the producers of the series aren’t so lucky.
The BTF parties also brought a motion premised on California’s SLAPP statute, meant to deter frivolous actions targeting First Amendment activity. But the producers didn’t argue as Univision did that their activity constituted newsgathering and as such, the First Amendment provided a bar to the suit at hand. Instead, perhaps due to a closer relationship with Delgado, the producers focused attention on how the plaintiff’s claims were unlikely to succeed.
In the decision, the appeals court rules that the Jenni Rivera Estate made a prima facie showing that’s sufficient to establish causes of action including interference with contract.
“The Producers cite numerous cases from California and other states in support of their argument that they cannot be liable for inducing a breach of or interfering with the nondisclosure agreement because they did not have knowledge of the agreement at the time production of the Series began,” states the decision. “None of the cases they cite, however, stands for the proposition that JRE cannot state a cause of action based on Salgado’s continuing obligations under the agreement and his breaches of discrete obligations at different times.”
The full decision then goes on to shrug off the producers’ contention that they had reason to doubt the authenticity of the NDA based on Delgado’s declaration that he never signed it. According to Segal, “At most, the Producers’ argument created an issue for the trier of fact regarding the Producers’ knowledge of the nondisclosure agreement; it did not defeat JRE’s showing of minimal merit.”
Lastly, the appeals court points to intentional acts alleged to have induced a breach. Those included paying Delgado throughout the production of the series, giving him credit as an executive producer, and marketing the series to promote Salgado’s role in the production and his forthcoming book. The evidence is deemed sufficient at this stage.
Here’s the full decision, which briefly touches on the damages factor, or the Jenni Rivera Estate’s own supposed lost opportunity to publish a book or sell a television series. That’s notable given that a documentary about Rivera is in the works. That one has the cooperation of her estate.
Univision was represented by Aaron Moss and Ricardo Cestero at Greenberg Glusker. BTF Media was handled by James Sammataro. The other producers were represented by Martin Singer and Andrew Brettler at Lavely & Singer. Finally, the Rivera side was handled by Bert Deixler, Robert Dugdale and Nicholas Daum at Kendall Brill & Kelly.
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