Well known for their highly publicized interactions with the legal system, Rose McGowan and her former defense attorney Jose Baez faced off this year over conflict of interest allegations in Baez v. McGowan, 2020 Ill. Cir. LEXIS 458 (2020).  Jose Baez is best known for his successful defense of Casey Anthony, a young woman tried for the murder of her two-year-old daughter in 2011, while actress, activist, and author Rose McGowan famously accused media producer Harvey Weinstein of raping her at the 1997 Sundance Film Festival.  McGowan is widely considered to be a fervent #MeToo supporter and touts nearly two million followers across her Twitter and Instagram profiles.

McGowan first hired Baez as her trial attorney in 2018 after McGowan was charged with felony possession of a controlled substance in Virginia.  The prosecution alleged that McGowan concealed a baggie of cocaine in her wallet, which was discovered after she accidentally left it behind on an airplane.  Although McGowan theorized that Weinstein paid off airline staff to plant the cocaine as part of a conspiracy to silence his rape accusers, she ultimately agreed to a plea deal and did not present the Weinstein theory to the court.

Continue Reading Demonstrating the Strength of the “Opinion Defense,” Rose McGowan Defeats Defamation Suit

Lauded as the “the most important law protecting free speech”[1] and the law that “gave us the modern internet,”[2] Section 230 of the Communications Decency Act (Section 230) has been a fixture of recent internet policy debates and blamed for everything from the proliferation of sex trafficking[3] to enabling anti-conservative social media bias[4].

Section 230 says, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[5]

Those 26 words shield online platforms from liability arising from hosting or making available third-party or user-generated content.[6] In other words, online platforms are considered intermediaries that cannot be legally liable for what users post on their platforms. However, Section 230 does not provide immunity to the actual creator of content. The author of a defamatory post could still be held responsible for any defamatory material they post.

Continue Reading Section 230 – Everything You Love and Hate About the Internet

The District of Columbia Circuit Court recently dismissed attorney John Szymkowicz’s defamation lawsuit against the author of the website “Legal Profession Blog,” finding that Szymkowicz failed to demonstrate that his potential damages met the $75,000 threshold required to establish federal jurisdiction.

In Szymkowicz v. Frisch, No. CV 19-3329 (BAH), 2020 WL 4432240 (D.D.C. July 31, 2020), Georgetown University Law Center professor Szymkowicz brought a claim for defamation, invasion of privacy—false light, and intentional infliction of emotional distress arising from posts by Frisch, which claimed he had committed elder abuse against a client. Szymkowicz alleged that the posts injured his personal and professional reputation, injured his standing in the community, cost him a loss of income and business opportunities, and prompted him to experience “mental anguish and personal humiliation.” Continue Reading D.C. District Court Decries Vague Assertion of Damages

In a now famous Oscar speech from 2018, Frances McDormand encouraged more diverse hiring in the film industry. “I have two words to leave you with tonight,” she told the audience as she accepted her Best Actress trophy,—“Inclusion Rider.” Most viewers had no idea what she meant, prompting immediate online searches of the term.

Prior to this, April Reign had created the hashtag #OscarsSoWhite in response to the lack of diversity at the 2015 Oscars, when all twenty acting nominations were awarded to white actors. This criticism of an awards season that failed to reflect the actual makeup of those working in the industry and of movie-goers nationwide seemed to take the Academy by surprise. The issue persisted, however, when the miniseries Hollywood, about a diverse group of aspiring actors and filmmakers trying to make their dreams come true during the post-World War II era, hit our screens this spring. While some criticized the tone, writing, and artistic license taken, many viewed the show as illustrative of what Hollywood could have been if it had allowed for more diversity, both in front of and behind the camera.

Continue Reading The Academy’s New Standards For Best Picture—A Bold Chapter In The Name of Inclusivity

On July 27, Melissane Velyvis successfully argued that a Domestic Violence Protective Order (the Order) was an unconstitutional prior restraint on her freedom of expression. Marin County Superior Court Judge Roy O. Chernus sustained Velyvis’ demurrer to a misdemeanor complaint brought against her for violating the Order in People v. Velyvis, Case No. CR211376A.

The Order prohibited Ms. Velyvis from posting anything on social media, blogs, or the internet regarding her ex-husband, Dr. John Velyvis, or his children. Dr. Velyvis applied for an order to curb posts on Ms. Velyvis’ blog, The Voice of Melissane Velyvis, which detailed the domestic abuse she allegedly suffered at the hands of Dr. Velyvis, and other events leading up to and resulting from the couple’s divorce. The blog describes Ms. Velyvis as a “survivor of non-fatal strangulation.”

Continue Reading Blogger’s Descriptions of Domestic Violence Protected by Freedom of Expression

This summer, the United States Supreme Court held that Title VII of the Civil Rights Act protects workers from discrimination based on sexual orientation and gender identity. In a 6-3 opinion, Justice Neil Gorsuch found that “homosexuality and transgender status are inextricably bound up with sex,” and as a result, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cnty., Ga., 590 U.S. __ (2020).

While this landmark decision ensures that sexual orientation and gender identity are protected categories under federal law, many individual states and localities provide varying degrees of protection for LGBTQ+ workers. For employers in the entertainment industry, it is important to be aware of these state and local laws when structuring and implementing employment policies, as those laws can significantly impact prospective liability.

Continue Reading Following a Landmark Decision for LGBTQ+ Workers, State and Local Laws Impacting the Entertainment Industry Are Still Vastly Different

In a published opinion, the Fourth Circuit recently affirmed a district court’s ruling that CBS News did not defame a pharmacist in its reporting on the opioid crisis, agreeing that the statements at issue were substantially true. See Ballengee v. CBS Broadcasting, Inc., No. 18-2018 (4th Cir. Aug. 3, 2020).

The ruling protects CBS’s award-winning investigative reporting on the opioid crisis.  It also demonstrates the enduring need for defamation law’s “substantial truth doctrine,” which excuses minor factual inaccuracies as long as the substance, gist, or sting of the statement remains true.  See Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991). Continue Reading Fourth Circuit Rejects Pharmacist’s Opioid Defamation Claims Against CBS

With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations don’t land them in legal hot water. One of the most prevalent cross-industry issues is music licensing. Music is everywhere in online content and often plays an integral part in the overall experience. From video game players streaming music as they show off their skills on the largest video platforms to fitness instructors using popular music to pump up their workout classes, individuals and companies must ensure that they don’t run afoul of the copyright laws when they incorporate music into their online content.

Continue Reading Legal Implications of Syncing Copyrighted Music with Other Content

Although many businesses providing services in the field of performing arts are not eligible for the qualified business income (QBI) deduction, some entertainment businesses that do not fall in this category have taken the position that they do qualify.  Recent indicators from the IRS, however, suggest that taxpayers claiming the QBI deduction may be subject to increased audit risk in the near future. Continue Reading Taxpayers Claiming QBI Deduction May Face Increased Audit Risk

The California Court of Appeal (the Court) has affirmed a trial court’s grant of preliminary injunction, enjoining HomeAdvisor’s use of allegedly misleading language in advertisements.  See People ex rel. Gascon v. HomeAdvisor, Inc., No. A154960 (Cal. Ct. App. June 5, 2020).

The lawsuit was brought by the People of the State of California (the People), acting by and through the San Francisco District Attorney.  Specifically, the People claimed that HomeAdvisor’s advertisements were “false and misleading because they are likely to deceive consumers into believing that all service professionals hired through HomeAdvisor who come into their homes have passed criminal background checks.  That is not the case.  The only person who undergoes a background check is the owner/principal of an independently-owned business.”  Id. at *1. Continue Reading Court of Appeal Affirms: No First Amendment Protection for Misleading Commercial Speech