2:25pm PT by Eriq Gardner
Who Is Spreading Rumors About the FX Gurus Who Brought Aliens to Los Angeles?
On Aug. 8, 2015, an individual posing as "Greg Baktor" and using the account firstname.lastname@example.org sent a curious email to several Hollywood executives. One of the recipients of this message was Neal Moritz, who had produced the Fast & Furious films and 21 Jump Street and was at the time readying the fantasy film Goosebumps.
"I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx," stated the message. "I was surprised to see 'Goosebumps' on Vitalitys IMDB as Vitality is co-owned by Greg and Colin Strause of Hydraulx and I thought Sony did not have a good relationship with the Brothers after Skyline/Battle L.A."
The Brothers Strause, as they are known, are no ordinary individuals in the special-effects community. Since the mid-1990s, few FX gurus have as many credits to their names. Titanic, Terminator 3, X-Men, Avatar and The Avengers are just some of the blockbusters they've worked on, but project promiscuity hasn't come without problems. As referenced in the quoted e-mail, the Brothers Strause once worked on the alien invasion movie Battle: Los Angeles for Sony while at the same time directing Skyline, a similar alien invasion film for Universal. That raised Sony's ire. Meanwhile, there are other haters out there. As outspoken members of the VFX community, the Brothers Strause can be controversial. Here's a sample takedown from one VFX website: "I think it’s unfair that while artists are working unpaid OT and potentially putting themselves in a situation where they may be audited, the Strause brothers are driving Lamborghinis, Ferraris, Bentleys, flying private jets, wearing $25,000 watches, and drinking shots of Dom Perignon at Las Vegas clubs with Paris Hilton."
It's the Aug. 8 email, though, that will get attention from a California appeals court on Wednesday in a dispute that could hold huge ramifications for anonymous speech. That "Greg Baktor" message also was sent to Sony executive vp Lori Furie, who forwarded it to Greg Baxter, a visual effects producer on Goosebumps as well as other films. But Baxter didn't send it.
When that message was sent, the Brothers Strause via Hydraulx were already in the midst of a lawsuit targeting an earlier anonymous message. On Nov. 7, 2014, someone e-mailed Hollywood executives that Hydraulx "is on the verge of financial collapse ... running on life support with a skeleton crew and has missed payroll several times since booking San Andreas."
After hearing about this, the Brothers Strause took action in the form of a defamation lawsuit against various John Does. They got a judge to sign off on a subpoena to Microsoft in hopes of unmasking the sender. After the second message came to Moritz and Furie, the attorney for the Brothers Strause noted a gmail address and served a subpoena to Google.
Then, something unexpected happened.
The anonymous sender of the Aug. 8 message stepped forward to object. After receiving notice from Google, but without revealing his or her identity, the man or woman listed as "John Doe 2" in the lawsuit moved to quash the subpoena by arguing it was procedurally defective. When Hydraulx amended their complaint in hopes of proceeding with discovery, John Doe 2 brought an anti-SLAPP motion.
California's SLAPP statute is meant to deter lawsuits that impinge upon First Amendment rights on matters of public interest. Here, John Doe 2 — who in a declaration revealed that he was someone in the VFX industry worried about retaliation — looked to have a judge strike "an improper and heavy-handed attempt by Hydraulx and the Brothers Strause to silence and intimidate their online critics, who appear to be legion."
What almost always happens when an anti-SLAPP motion is brought is that it stops discovery until a judge rules on a plaintiff's likelihood of success. See, for example, what happened in James Woods' lawsuit against the anonymous person who trolled him on Twitter by accusing him of being a cocaine addict. There, discovery was paused until Woods defeated the anti-SLAPP motion.
But in this Brothers Strause case, the trial judge worried it would be unfair to strip the plaintiff of due process rights to pursue a claim. John Doe 2 offered to reveal his identity to the judge — and only the judge — and take certain issues off the table at this juncture. The Brothers Strause insisted it still needed special discovery to oppose the anti-SLAPP motion. Ultimately, the trial court agreed that a stated wish to "whistleblow" was capable of rising to defamation as an implication of civil or criminal wrongdoing and authorized a subpoena to Google.
And that's how it got to a California appeals court.
Morgan Pietz, attorney for John Doe 2, is pointing to Krinsky v. Doe 6, a 2008 decision that strengthened protections for anonymous speech by requiring a plaintiff to make a "prima facie showing" that he or she has a valid legal claim before gaining disclosure of the speaker's identity. Pietz basically argues that unmasking an anonymous speaker should be "a last resort" and that the judge should have first addressed other potential lawsuit-dooming issues including whether the statement was "of and concerning" the plaintiff corporation, whether the statement that the Brothers Strause are behind Vitality is "substantially true" and other deficiencies such as a lack of evidence of harm.
Bonnie Eskenazi, attorney for Hydraulx, in turn argues that discovery is necessary to make a prima facie showing of falsity on the anonymous writer's statement in the email of having been "burned" by the Hydraulx's "bad business practices," and further that an unmasking was crucial in showing the requisite malice, or as she put it, "false statements made by a competitor to gain an unfair and unlawful business advantage."
Lately, the dispute has touched on whether anonymous speech if commercial is meaningful.
"This case does not present 'a classic cyber-SLAPP' situation as John Doe 2 would have this Court believe," wrote Eskenazi in an appellate brief. "Classic anonymous free speech/criticism on the internet does not involve a competitor like John Doe 2 who falsified his identity to business associates of the plaintiff in order to deceive those business associates into believing that the defamatory statements in the email were from a source that the plaintiff's business associates would find to be reliable. This case involves a defamation action brought by Hydraulx against an admitted anonymous competitor engaging in unfair competition to drive business away from Hydraulx. The outcome here should be dictated by unfair competition rules, not by the First Amendment."
Pietz replies that there's no claim in the amended complaint for unfair competition and that's not how the First Amendment works.
"Hydraulx’s whole 'commercial speech' argument is really a red herring," he writes. "Anonymous speech has a long history of constitutional protection; the founding fathers published under pseudonyms like Publius and Brutus. In recognition of this long tradition, the Krinsky court wisely adopted a prima facie evidence review standard as the test for when the anonymous speech privilege should be pierced."
On Wednesday, both sides will get a chance to deliver their arguments at an oral hearing, with a written ruling coming sometime in the weeks ahead.