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9th Circuit Denies On-Line Newspaper’s Anti-SLAPP Motion Against Porn Star’s Libel & False Light Lawsuit

Posted on: July 26th, 2016 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit affirmed a decision by District Judge George H. Wu to deny an anti-SLAPP motion by Associated Newspapers LTD, publishers of Daily Mail Online, which is being sued by “Danni Ashe,” a straight porn diva whose real name is Leah Manzari, over the use of her picture to illustrate an article about HIV in the porn industry.  Manzari v. Associated Newspapers LTD., 2016 U.S. App. LEXIS 13488, 2016 WL 3974178 (July 25, 2016).  Manzari, who asserts without contradiction that she is not and has never been HIV-positive, claimed that the publication would lead viewers to believe that she was infected, and sought $3 million in damages for libel and “false light” invasion of privacy.  The 9th Circuit agreed with Judge Wu that Manzari was likely to prevail on the merits of her tort claims.  Judge M. Margaret McKeown wrote the opinion for the court of appeals.

According to its legislative history, California’s anti-SLAPP statute (SLAPP stands for “strategic lawsuit against public participation”) was passed in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” It is intended to protect those who want to comment or publish on issues of public importance from nuisance suits intended to discourage their exercise of free speech.  When a defendant responds to a tort suit with an anti-SLAPP motion, the burden falls on the plaintiff to establish that “there is a probability that the plaintiff will prevail on the claim.”  In a non-SLAPP situation, a plaintiff can survive a motion to dismiss merely by alleging facts sufficient to suggest a plausible legal claim.  Thus, the anti-SLAPP device, putting a greater burden on the plaintiff, is supposed to protect free speech by nipping non-meritorious lawsuits in the bud, before the defendant incurs significant expenses in discovery and summary judgment litigation defending against a non-meritorious case.

This case arose when Daily Mail Online published a story about a “shutdown of the Los Angeles-area porn industry” in 2013 after a female performer, whose identity was not then disclosed, tested positive for HIV. The author of the article, James Nye, asked the photo desk to supply “some pictures representative of the pornographic film industry that contained no nudity” that could be used to illustrate the article.  He was provided with several “stock” photographs selected from the Corbis Images database, one of which was identified in that database as follows: “Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000.”

Judge McKeown described the article in her opinion. “The headline read ‘PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.’  After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with ‘In Bed With Danni” written in neon lights behind her.  Under her photograph was the caption: ‘Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.’”

Somebody reading further into the article would learn that the actress who tested positive was “new to the industry” and that “the performer was not immediately identified.” Other “stock” photos depicting other porn actresses also appeared in the article. Neither Danni Ashe nor Manzari was named in the text of the article.

Manzari’s attorney contacted Daily Mail Online when the article was published, demanding that the photograph be removed. Daily Mail made the change on their website, but the damage had been done, according to Manzari.  The original version of the article had been syndicated on the Internet. She claimed that a Google search returned the original version with her picture from websites around the world.  Worse, the version that showed up on a search screen would have the headline and her photograph, without any of the explanatory text as to the actress being “unknown.”  Consequently, she alleged, most of those who saw the article on line or as part of a search would conclude that “Danni Ashe” was HIV-positive.

Daily Mail argued that this was a frivolous lawsuit intended to chill their publication of a newsworthy story, and that the “stock” photograph was an appropriate illustration for the article. They pointed out that they never named Manzari (or “Ashe”) in the article or stated that the model in the picture was HIV-positive.  Furthermore, they pointed out, the article was a true news story on an item of public interest, thus entitled to strong First Amendment protection.  “There is no serious dispute that the libel and false light suit targeted speech protected by the anti-SLAPP statute,” wrote McKeown, so “the burden shifts to Manzari to show a reasonable probability of prevailing on the merits.”  Daily Mail also argued that Manzari, in the guise of Danni Ashe, should be treated as a “public figure,” which means that Daily Mail could be held liable to her only if it was shown that they had published the picture with “actual malice,” which in this case would mean with actual knowledge that it communicated a false meaning or with reckless disregard as to the truth.

Manzari is making two claims. The libel claim contends that an untrue publication that she is HIV-positive would be damaging to her personal or professional reputation, and the “false light” claim contends that the photograph provides an inaccurate depiction of her to the public in the context in which it is presented.  In any tort case, the plaintiff has to prove actual injury, although libel law traditionally presumes “actual injury” if a person is falsely depicted as having a “loathsome” disease, and sexually-transmitted diseases  such as HIV generally fall into that category, or is falsely described in a way that would be harmful to their standing in the profession.  Interestingly, the court’s opinion contains no discussion whatsoever about whether falsely implying or communicating that somebody is HIV-positive would harm their reputation or professional status.  This is silently assumed, perhaps because it struck the court that it would be obvious to anybody that saying that a porn actress is HIV-positive would adversely affect her ability to work in her chosen profession.

The court focuses instead on other factors in the legal analysis. For example, it makes a difference whether the plaintiff is a “public figure.”  People who have achieved sufficient fame or notoriety that they are recognizable to the public at large are deemed to be “public figures” whose activities are inherently newsworthy, and thus they face a high burden in trying to hold the press liable for reporting about them.  The court found that although Danni Ashe’s fame might be somewhat specialized, she nonetheless qualifies as a public figure. “Manzari is a pioneer in the online adult entertainment industry,” wrote the court.  “Her website www.Danni.com, which she designed and launched in 1995, began generating multimillion dollar revenues in the early 2000s.  During this time, ‘Danni Ashe’ was one of the most well-known and popular soft-core porn actresses in the world, as well as a highly successful entrepreneur, with one of the most visited websites on the Web.  She retired from the adult entertainment industry in 2004 and sold www.Danni.com, but the website remains active under that name.”  The court found that press references to Ashe supplied by Daily Mail Online supported its contention that the public figure rules should apply, which means that in order to deny the motion to dismiss her case, the court would have to find that she could probably win on the issue whether the false representation was made with “actual malice” to meet the constitutional standard.

Next, the court confronted Daily Mail’s argument that the article never mentioned Danni by name. Actually, that wasn’t true, as the picture itself had her first name in neon lights as background to her image.  “The bold headline and its content, juxtaposed with her photograph and yet another caption under her picture that said the industry was ‘shocked’ that a ‘performer had tested HIV positive,’ was sufficient for a reasonable reader to infer that Manzari was the performer who had tested positive for HIV,” wrote Judge McKeown, treating this as an “implied” defamation case.

Daily Mail argued that “this case is different from the classic defamation by implication case because it did not make any statement by including a stock photograph selected as a ‘good, nonobscene photograph to illustrate the article.’”  McKeown characterized this argument as “disingenuous,” saying that it “overlooks the fact that a photograph itself can convey both an implicit and an explicit message and that the headline, caption and photograph taken together are also a statement.”  The court found that when it considered the article “as a whole” and in its full context, “a reasonable reader could infer that the article is about Manzari.”

As to the “actual malice” requirement, it was clear that the Daily Mail Online had done nothing to determine whether the person in the photograph, who was clearly a porn actress, was HIV-positive. “This case rests on the ‘reckless disregard’ prong of actual malice,” wrote the court.  “Recognizing that California law requires only ‘minimal merit’ to withstand initial dismissal under the anti-SLAPP statute, we hold that Manzari has raised sufficient factual questions for a jury to conclude that the Daily Mail Online acted with reckless disregard for the defamatory implication in its article on the Los Angeles porn industry shutdown.  Manzari’s evidence is sufficient to support her claim that the Daily Mail Online placed her photograph in the article, juxtaposed with the incendiary headline and caption, knowing or acting in reckless disregard of whether its words would be interpreted by the average reader as a false statement of fact.”

Not only was it likely that readers would infer Manzari was the subject of the article, but Daily Mail’s editorial staff “actively removed key contextual information from the ‘Danni Ashe’ photograph as it was presented in the Corbis database,” replacing the database description, quoted above, with the language about the industry being “shocked” about an actress testing positive. “The publishers also failed to include any explanation or disclaimer adjacent to the ‘Danni’ photograph, which would have informed readers that she was not the subject of the article.”

Furthermore, the court gave little weight to the publisher’s denial of any intention to communicate to readers that Manzari was HIV-positive. “If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival,” said the court.  “If, for instance, a newspaper ran the headline: ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York City, or ‘Industry Shocked that Grocery Sprayed Veggies with Pesticide’ alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.  The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights.”  In a sarcastic footnote, McKeown added, “One need only look to the Daily Mail’s own evidence of Manzari’s public figure status to confirm the ubiquity of her image and her identity.  Her image can hardly be relegated to the status of a ‘stock’ photograph.”

“This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making,” concluded McKeown. “Manzari meets the ‘minimal merit’ threshold to avoid outright dismissal of her complaint,” so the district court “properly denied the Daily Mail’s motion to strike Manzari’s complaint.”

The usual consequence of denial of an anti-SLAPP motion would be for the defendant to offer a settlement to the plaintiff, since the court has already concluded that there is a reasonable probability that the plaintiff would win the case before a jury. If Daily Mail wants to pursue its motion further, it could seek reconsideration by a larger panel of the 9th Circuit or petition the Supreme Court for review, but neither of those routes seems likely to result in a reversal of the panel’s logical and unanimous decision.  Time for Daily Mail’s liability insurer to step in.

Los Angeles attorney Steven L. Weinberg represents Manzari. Katherine M. Bolger of the New York firm Levine Sullivan Koch & Schulz LLP and California local counsel Louis P. Petrich of Leopold, Petrich & Smith PC, represent Daily Mail.