In case you haven't heard. I hadn't.
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Jonathan Melber Wrote:
Judge to Borat: “High FIVE!”
Last month a California judge threw out a lawsuit against the creators of Borat, the surprise hit comedy that earned a Golden Globe and more than a few legal challenges. The decision illustrates the impact of the state’s “anti-SLAPP” law, which fast-tracks cases affecting free-speech rights, forcing plaintiffs to justify their claims much earlier than usual. (John Doe v. One America Productions).
In Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, creator Sacha Baron Cohen plays a racist, misogynous, homophobic, anti-Semitic reporter from Kazakhstan who ventures to the United States to film a documentary about American culture. In the course of his travels, Borat encounters some enlightened citizens who gently correct his bad manners and atavistic worldview. But he also meets others who, disarmed by the politically incorrect foreigner, reveal themselves to share his prejudices.
The plaintiffs in One America were among the latter: two fraternity brothers who drink alcohol with Borat on camera and, over the course of several raucous hours, spout a host of sexist and racist views.
After the movie opened, the fraternity brothers filed suit. They claimed they had agreed to be in the movie and signed releases only after being told it “would not be aired in the United States;” that Cohen had invaded their right to privacy; that he had portrayed them in a false light; and that he had caused them emotional distress. They sought an unspecified amount of money and an injunction prohibiting Cohen from exploiting any footage of them—an order that would have required pulling the movie from theaters.
The court dismissed the case under California’s anti-SLAPP law (“SLAPP” stands for Strategic Lawsuit Against Public Participation). The court held that the statute applied to the plaintiffs’ claims because “the topics addressed and skewered in the movie—racism, sexism, homophobia, xenophobia, anti-Semitism, ethnocentrism, and other society ills—are issues of public interest.”
Because the anti-SLAPP law applied to the suit, explained the court, the plaintiffs had to show “a probability of prevailing” on their claims—in other words, they had to prove that if the case proceeded, their chances of winning were better than 50-50. Plaintiffs do not normally have to clear this kind of hurdle to keep a case alive; the anti-SLAPP statute forces them to argue the merits of their case long before they see a jury.
The fraternity brothers could not convince the judge that they were likely to succeed if allowed to continue with the case. Among the many reasons: they didn’t demonstrate quantifiable damages or show how their portrayal in the film was “false.” With that, the court dismissed their case.
One America is a good illustration of how California’s anti-SLAPP law helps defendants get rid of weak cases relatively quickly and inexpensively. But defendants shouldn’t be too cavalier in deciding whether to make an anti-SLAPP motion. If a court determines that the motion was frivolous or brought to cause delay, it can stick a defendant with the plaintiff’s legal bill.