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

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

A Texas Court of Appeals recently affirmed the dismissal of a case against Kirkstall Road Enterprises (Kirkstall), the production company behind the true-crime show The First 48, holding that Kirkstall could not be held liable for the shooting of a man who appeared as a witness on one of the show’s episodes.

The First 48 is a nationally-broadcasted show that features investigations of real homicide cases.  Each episode follows homicide detectives in the first 48 hours of their investigation and includes both reenactments of events surrounding the investigation as well as actual recordings of police interviews of different witnesses.
Continue Reading First Amendment Protects True-Crime Show From Negligence Liability

The Circuit Court for the City of Richmond, Virginia, recently quashed plaintiff Marathon Resource Group, LLC’s subpoena to a journalist regarding a voicemail she received during the course of an investigation into Marathon’s business practices.  See Marathon Resource Group Management, LLC v. Fresh Cuts Lawncare, Inc. et al., Richmond City Circuit Court, Case No. CL 19-5973 (the Order)

In the underlying litigation, Marathon had sued Fresh Cuts Lawncare, Inc. and its owners (collectively “Fresh Cuts”) regarding, among other things, statements made by Fresh Cuts in news reports and via a Facebook page that Marathon had engaged in unfair business practices and failed to pay invoices.  Marathon claimed that the purported defamatory statements were harming its business and subpoenaed journalist Kerri O’Brien, of the Richmond affiliate of ABC News, who had obtained statements from Fresh Cuts and others in the course of her investigative report about Marathon’s business practices.  Marathon’s subpoena specifically sought to obtain a voicemail recording from O’Brien, which Marathon claimed would substantiate the publication element of its defamation claim against Fresh Cuts.  See Order at 2.
Continue Reading Court Quashes Subpoena to Investigative Journalist

On November 19, 2019, the California Court of Appeal held that comments made by celebrity actor Shia LaBeouf in a private and isolated dispute were not a matter of public concern and, therefore, did not constitute protected speech under the First Amendment.

The case, David Bernstein v. Shia LaBeouf, stems from an April 5, 2017 incident in which LaBeouf and his female companion walked into a Los Angeles bar appearing “significantly under the influence.”  When they were refused service by Bernstein, the establishment’s bartender, LaBeouf allegedly became angry, and called Bernstein a “fucking racist” and a “fuckin’ racist bitch” as he was being escorted out of the bar by security.  Video of the incident circulated quickly and widely, much of the internet praised and supported LaBeouf, and Bernstein’s life and reputation allegedly suffered.  Bernstein subsequently sued LaBeouf for assault, slander per se, and intentional infliction of emotional distress.  LaBeouf responded with an anti-SLAPP motion, arguing that the speech giving rise to Bernstein’s claims (the insults hurled at Bernstein) was protected activity concerning a matter of public interest.

LaBeouf argued that his statements were protected speech because: (1) they occurred in a public place; (2) they were of interest to the public because they were published publicly on the internet; (3) LaBeouf is a celebrity; and (4) they contributed to the public debate on racism.

The trial court denied LaBeouf’s motion, and the Court of Appeal affirmed the trial court’s decision.  In declining to grant First Amendment protections to LaBeouf’s alleged name-calling, the Court of Appeal concluded that his statements were not made in connection with an issue of public interest.  The Court took care to narrow the scope of its ruling to the specific circumstances of LaBeouf’s case, however, namely the specific nature of LaBeouf’s speech.
Continue Reading Shia LaBeouf Walks Into a Bar . . . And Ends Up Losing an Anti-Slapp Motion

The Second Circuit Court of Appeals recently affirmed the dismissal of a case against BuzzFeed, an internet media company, for publishing an allegedly libelous article about a British news agency, Central European News Ltd. (“CEN”), and its founder, Michael Leidig. See Leidig v. BuzzFeed, Inc., No. 19-851-cv (2d Cir. Dec. 19, 2019) (“Order”).

In April 2015, BuzzFeed published the article in question, entitled “The King of Bullsh*t News” (the “Article”). The Article addressed news stories on various bizarre topics sold by CEN to third-party English-language media services around the world. CEN’s stories reported, for example, that a two-headed goat was born on a farm in China, that a Russian woman killed her kitten by dying it pink, and that teenagers in China were walking cabbages on leashes to alleviate feelings of loneliness. The Article – based on many months of investigation conducted by BuzzFeed journalists – stated that “the evidence assembled by BuzzFeed News suggests that an alarming proportion of CEN’s ‘weird news’ stories are based on exaggeration, embellishment, and outright fabrication[.]”


Continue Reading BuzzFeed Wins Libel Suit Regarding “King of Bullsh*t News” Article

The U.S. District Court for the District of Columbia recently dismissed a case against three media corporations – CNN, Rolling Stone, and HuffPost – and several employees of those corporations for publishing or broadcasting allegedly defamatory statements regarding Joseph Arpaio’s 2017 criminal contempt of court conviction.

Arpaio is no stranger to public controversy. While serving as sheriff of Maricopa County, Arizona from 1993 to 2017, Arpaio was often criticized for, among other things, his office’s policing tactics in Latino neighborhoods. In one lawsuit against him, Arpaio and his office were enjoined from detaining people “based only on knowledge or reasonable belief . . . that [they were] unlawfully present within the United States[.]” Arpaio ignored the court’s order and continued to engage in conduct that violated the injunction. In July 2017, Arpaio was convicted of criminal contempt of court (a misdemeanor) for willfully disobeying the injunction. In August 2017, President Donald Trump pardoned Arpaio before he was sentenced. In January 2018, Arpaio then decided it was a good time to run for the U.S. Senate.

CNN, Rolling Stone, and HuffPost each published a story about Arpaio’s Senate run and colorful background. CNN anchor Chris Cuomo introduced a report about Arpaio’s Senate run and erroneously referred to him as a convicted felon. (The report itself correctly stated that Arpaio was convicted of a misdemeanor and provided context for the crime.) Rolling Stone published an article about Arpaio and erroneously referred to him as an “ex-felon.” HuffPost published an article about Arpaio and erroneously stated that Arpaio had spent time in prison for his contempt of court conviction. The three corporations corrected their statements when they learned of their errors.


Continue Reading Three Media Corporations Avoid Defamation Liability in Suit Brought by Joseph Arpaio

Georgia insurance adjuster and consultant Bruce Fredrics’ filed a lawsuit against a reporter relating to a proposed television exposé on Mr. Fredrics and his business.  In Frederics v. Hon. Brad Raffensperger, Georgia Secretary of State, et al., Case No. 2019CV317438 (Aug. 2, 2019), Mr. Fredrics sought effectively to stop Harry Samler, the host of the local news’ station’s pro-consumer investigative show “Better Call Harry,” from publishing any news stories about his dealings with a homeowner who claimed he defrauded her, and who had subsequently turned to Mr. Samler to publicize her alleged negative experience.  Notably, Mr. Samler’s investigation dealt not only with Mr. Frederics’ dealings with this homeowner, but also the consumer complaint filed by that homeowner and resulting investigation against Mr. Frederics by a Georgia regulatory agency.

But Mr. Samler’s employer, CBS46, had other plans to protect its lead investigative reporter (and, ostensibly, one of its most popular segments): it filed a motion to intervene and to join a motion to strike filed by Mr. Samler that asked the Georgia Superior Court to make a finding that Mr. Frederics’ lawsuit impermissibly curtailed CBS46’s constitutionally-protected newsgathering activities.  Mr. Frederics opposed both motions, first claiming that, because CBS46 was neither a defendant in his actions nor the target of any of his specific claims, it had no right to intervene in the action.  The Superior Court promptly disposed of that argument, noting that “[t]he media’s right to intervene in legal actions that seek to impede its ability to gather and report the news is well established.”
Continue Reading News at 11: Georgia court finds that television station has First Amendment right to produce investigative reports

On June 24, 2019, the U.S. Supreme Court issued its highly anticipated opinion in Iancu v. Brunetti, holding that the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks violates the First Amendment.

In 1990, Erik Brunetti, an artist and entrepreneur, founded the streetwear clothing line, FUCT (pronounced as four letters, one after the other: F-U-C-T).  Brunetti attempted to register the FUCT trademark in order to protect its value.  The U.S. Patent and Trademark Office (PTO) denied his application for registration, concluding that because it was phonetically equivalent to the “past participle” of “a well-known” vulgarity, registering the FUCT trademark would violate Section 1052(a) of the Lanham Act, which prohibits trademark protection for immoral, shocking, offensive, and scandalous marks.  After exhausting his remedies in the PTO, Brunetti brought a First Amendment challenge to Section 1052(a) in the Court of Appeals for the Federal Circuit.  That court invalidated the “immoral or scandalous” clause.  In a 6-3 opinion, the Supreme Court affirmed the Federal Circuit’s decision, holding that the prohibition of immoral or scandalous trademarks infringes the First Amendment because it disfavors certain ideas.  The Court’s majority opinion, joined by both liberal and conservative justices, made clear that the government cannot discriminate against “ideas that offend.” 
Continue Reading Supreme Court Strikes Down Prohibition of Registration of Immoral or Scandalous Trademarks on First Amendment Grounds