Dice v. X17, Inc.

In action arising from distribution of video of purported illegal drug transaction with Lindsay Lohan, California appellate court reverses in part trial court’s order granting anti-SLAPP motion, finding that plaintiff was not a limited purpose public figure, and that defendant published video with reckless disregard as to truth or falsity.

This case involves an article containing photographs and a video posted online by X17, Inc., a celebrity news reporting agency. The photographs and video showed celebrity Lindsay Lohan with sobriety coach Peter Dice and another man. The man sitting next to Lohan looks at a plastic bag, and the words “cocaina” and “droga” can be heard in the conversation between the videographer and his associate. X17’s article and caption accompanying the video and photographs suggest that they depict a drug purchase involving Dice and Lohan.

Dice filed a complaint against X17 and its owner, Francois Navarre, alleging that the publication was defamatory and violated his rights of privacy and publicity. X17 and Navarre filed a special motion to strike the complaint under California Code of Civil Procedure Section 425.16 (the anti-SLAPP motion). The trial court denied the motion as to most of plaintiff’s claims, but granted the motion in part as it related to plaintiff’s right of publicity claim. Both sides appealed.

The California Court of Appeal explained that a cause of action may be stricken through an anti-SLAPP motion if (1) the defendant shows that the claim arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue, and (2) the plaintiff fails to demonstrate a probability of prevailing on the claim. A plaintiff establishes a probability of prevailing on a claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff’s favor.

Applying this standard, the appellate court affirmed the trial court’s denial of the anti-SLAPP motion as to Dice’s defamation counts and other related counts. Although the defendants argued that the anti-SLAPP motion should have been granted because Dice is a limited purpose public figure who must prove actual malice in order to prevail on the merits, the appellate court found that Dice was not a limited purpose public figure. Here, when Dice approached Lohan in public, it was reasonably foreseeable that he would be photographed with her, but he had not undertaken any voluntary act to influence resolution of a public issue. Dice’s conduct in handing the man with Lohan a plastic bag did not show an attempt to influence the resolution of a public controversy; Dice wanted no part in any public controversy concerning Lohan and drug use, and never sought to influence public opinion on the subject.

The appellate court further held that the video and article included a statement of fact, namely, that Dice was involved in a drug transaction with Lohan. A defamatory statement must contain a provably false assertion of fact, and statements of opinion are not actionable. The defendants argued that the word “cocaina” on the recording was stated in the context of a question and therefore should be understood as a statement of opinion rather than one of fact. Even if the word “cocaina” was spoken in an inquisitive manner, the word “droga” was spoken repeatedly in a manner suggesting a statement of fact, and the caption, text, and article all made actionable factual statements that Lohan was purchasing drugs and that Dice was involved in the transaction.

The appellate court concluded that the trial court erred by granting the anti-SLAPP motion as to Dice’s claim for commercial appropriation of likeness under Civil Code Section 3344. The appellate court ruled that Dice presented evidence sufficient to overcome the First Amendment “news exception” to liability based on violation of his publicity rights. The appellate court noted that the “news exception” does not provide blanket immunity, and is subject to an exception where the reporting is knowingly or recklessly false. Viewing the video in its entirety, the appellate court concluded that it provided no reasonable support for the statement that Lohan purchased drugs from Dice or the man with her. Because the evidence tended to show that defendants’ video and article were published with at least reckless disregard for their truth, the appellate court concluded that Dice’s right of publicity claim should have survived defendants’ anti-SLAPP motion.

For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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