NBC Universal, Inc., succeeded in dismissing under the California anti-SLAPP law a defamation claim brought by plaintiff Anurag Tiwari after Tiwari was featured on an episode of NBC’s “To Catch a Predator” TV series. The show involves hidden camera investigations by the newsmagazine program Dateline NBC, in which the NBC investigators impersonate underage youth and lure men who contact them over the internet for sexual liaisons into sting operations, where the men are then arrested by law enforcement. Tiwari was one such man, who subsequently defeated most of the charges, eventually pleading guilty to only one misdemeanor offense. His suit brought causes of action for section 1983 civil rights violations; intentional infliction of emotional distress; and, defamation. (Tiwari v. NBC Universal, Inc., U.S. District Court, Northern District of California case no. C-08-3988.) The defamation claim did not survive NBC’s anti-SLAPP motion.
NBC’s special motion to strike pursuant to the anti-SLAPP law, California Code of Civil Procedure section 425.16, was brought against both the intentional infliction of emotional distress and defamation claims. (The U.S. Court of Appeals for the Ninth Circuit has ruled that the anti-SLAPP law may be applied in California federal district courts to state law claims, except for certain discovery-related provisions.)
The district court, however, applied a rather unusual standard in considering the special motion to strike, finding that the plaintiff had made “a fair point” in arguing — in his opposition alone — that he required discovery from NBC to effectively respond to the motion. The court nonetheless proceeded to consider the merits of NBC’s special motion to strike, but applied a Federal Rule 12(b)(6) standard (comparable to a demurrer under California law), taking as true all well-pleaded facts in the plaintiff’s complaint, and striking a cause of action only if it failed as a matter of law. This relieved the plaintiff of his burden under the anti-SLAPP law to substantiate his claims through competent, admissible evidence.
Application of this more lax standard broke with previous federal decisions under the California anti-SLAPP law, which declined to consider a plaintiff’s plea for discovery after a defendant filed a special motion to strike, where the plaintiff did no more than complain about the lack of discovery in his or her opposition — i.e., where he or she did not actually seek the discovery in question from the opposing party. (Federal courts allow a plaintiff to seek discovery while a special motion to strike is pending so long as that discovery is essential to showing a probability of prevailing on the claims sought to be struck, pursuant to Federal Rule of Procedure 56.)
Applying this standard, the district court struck Tiwari’s defamation claim, but allowed his intentional infliction of emotional distress claim to stand. After summarily finding, apparently based on plaintiff’s non-opposition to the point, that plaintiff’s claims arose from speech on a matter of public interest under the anti-SLAPP law, the court proceeded to determine whether plaintiff could show a probability of prevailing on his claims.
On the defamation claim, the court found that NBC’s broadcast of the sting operation constituted a fair report under California Civil Code section 47, and thus plaintiff could not show a probability of prevailing. Although NBC had incorrectly described Tiwari’s conviction in terms indicating a felony, the words used nevertheless conveyed the facts to the lay viewer in a substantially true manner, thus barring liability against NBC.
The court also found, however, that “reasonable minds could differ as to whether NBC’s conduct [in filming the sting operation] was so ‘outrageous and extreme’ as to exceed all bounds of decency,” and thus constitute intentional infliction of emotional distress. The court ruled that this claim could not be found, as a matter of law, to lack any merit whatsoever, and thus could not be struck.
The opinion may be read here: http://law.justia.com/cases/federal/district-courts/california/candce/3:2008cv03988/206437/110
For more on application of the California anti-SLAPP law in federal courts, see Adrianos Facchetti’s post on the subject at California Defamation Law Blog: http://www.defamationlawblog.com/2010/08/articles/antislapp/can-an-antislapp-motion-be-filed-in-federal-court/