by Paul Alan Levy
A California Superior Court judge has issued a decision that threatens to blow a gaping hole in the protection that online hosts for critical speech have enjoyed under section 230 of the Communications Decency Act and, therefore, in public’s ability to post critical speech. In Cross v. Facebook, Judge Donald Ayoob granted only in part Facebook’s demurrer and special motion to dismiss a complaint by a musical performer; the denial part is a doozy. He held that plaintiff had shown a probability of success on the merits of claims that the placement of advertising on hosted critical pages about the plaintiff makes a commercial use of the plaintiff's name and likeness and hence could both violate his statutory right of publicity and constitute common-law misappropriation under California law.
The Underlying Facts
The case arises out of a controversy over a self-styled “country rap” performer named Jason Cross, who performs under the name Mikel Knight. Until recently, at least, Cross has promoted his work mainly by making music videos and selling CD’s and paraphernalia in lengthy on-the-road sales tours. He recruits his sales force among young men in the small towns near his base in Nashville, Tennessee, and in areas where his sales teams visit. Calling his sales force the Maverick Dirt Road Street Team, Knight sends out groups of vans bearing that name, each transporting a handful of sellers who, according to reports, live in filthy conditions, face brutal discipline at the hands of Cross and his top lieutenants, and work long hours that would put even newly-minted hospital residents to shame. The incentive that he dangles before them — the prospect that their efforts will produce handsome commissions that represent very large incomes for young rural men with otherwise limited employment prospects. And indeed, some of his recruits have done very well from their participation; some of the employees with whom I have spoken talked about making thousands of dollars a week. There have been several published reports which detail the conditions under which his sales staff labor (this one is unrelievedly negative but this one tries to paint a more nuanced portrait). And the consequence of the brutal conditions have, according reports and according to several former employees to whom I have spoken, included serious accidents in which his vans, driven by bleary-eyed staff who often, I was told, use drugs to stay awake, have crashed causing serious injuries and even death.
Litigation in Two States
Cross began his legal attack on his critics by filing a pre-litigation discovery proceeding against Facebook in Davidson County Circuit Court in Nashville, Tennessee, demanding that Facebook identify the anonymous blogger responsible for the page then entitled Families Against Mikel Knight and the MDRST; he joined that with a request for injunctive relief compelling Facebook to take down the allegedly defamatory Facebook page. Citing section 230, the Tennessee trial judge denied Cross’s motion for a preliminary injunction compelling removal of the page attacking him. Facebook also pointed out to the trial judge that, under a provision of Tennessee’s procedure for petitions for pre-litigation discovery, the court needed to appoint a representative ad litem for any defendant whom the plaintiff hopes to sue using the discovery. Tennessee does not yet have an appellate decision on the Dendrite issue, and this case struck me as a good vehicle for litigating that issue: Cross’s long criminal record, coupled both with the image of thuggishness that he promotes in some of his music videos, and the reports about violence toward employees who do not meet his performance standards, might make this a particularly apt case in which to argue for Dendrite’s balancing standard.
But before I could make myself available for such representation, I felt I had to investigate the situation sufficiently to be confident that there was a factual basis for some of the strong statements that were made about Cross on the Facebook page about him. In the course of that investigation, I have spoken to many former Cross employees; my conclusion was that there is a substantial basis for many statements that Cross claims are defamatory. Indeed, one of the most striking things about the interviews was how consistently several of the former employees spoke of their fear of signing affidavits about their experiences, because Cross requires them to give their home addresses when they are first hired; they expressed concern that Cross would hold a grudge and send goons to attack them and their families. Consequently, my conclusion was that the blogger should win a Dendrite motion if Cross ever reaches that question in Tennessee. Facebook has alerted the Tennessee trial judge of the availability of Public Citizen attorneys to accept an ad litem appointment to represent the Doe who operates the Public Awareness of Mikel Knight and The Maverick Dirt Road Facebook page.
Cross has moved the Tennessee court for leave to amend the complaint to add the Does as defendants (that is, instead of pursuing a petition for pre-litigation discovery). However, rather than pursuing that claim in Tennessee, he sought a series of postponements of the hearing on the motion to amend while he pursued not-quite-parallel litigation in California against Facebook.
It is not clear why Cross’s counsel felt that the Tennessee litigation against the Does should await the outcome of the California litigation, because although the complaint mentions some Doe defendants in the caption, it alleges no claims against any Doe defendants. In particular there are no claims against anonymous individuals who created the Facebook pages attacking him. His claims are only against Facebook, in part for breach of contract (claiming that Facebook violated its own Terms of Service when it failed to take down the critical Facebook pages in response to his complaint about “bullying” and “harassment”), in part for interference with contractual relations, and in part for breach of the right of publicity, common law misappropriation of likeness, and unfair business practices (because Facebook was serving advertising on users’ Facebook pages which, in turn, had mentioned Cross’s name and showed pictures of Cross that had been placed on the defendant’s service without Cross’s permission). None of these claims could have been brought against the Does.
The only way in which the California and Tennessee cases are related is that, supposedly in aid of its California complaint, Cross served discovery on Facebook in California seeking information about the Does. But given the nature of his claims against Facebook, it is hard to understand how Cross thought this discovery was relevant, not to speak of surmounting the First Amendment protection that California courts have accorded to anonymous Internet users who oppose discovery of identifying information. Perhaps his cynical assumption was that, if Facebook was facing a realistic claim for damages, it would give up the names of his critics in exchange for dismissal of the litigation.
Facebook filed a special motion to dismiss under California’s anti-SLAPP statute, staying discovery. It argued that general statements in the Terms of Service about not posting bullying or harassing material do not create an enforceable contract that allows a court to substitute its judgment for the online service provider about what should be taken down. It also argued that Facebook’s immunity under section 230 of the Communications Decency Act meant that Facebook could not be held liable for refusing to remove content that was critical of the plaintiff. Next, it contended that the right of publicity and related claims were equally subject to section 230 immunity on those grounds, pointing to Ninth Circuit caselaw holding that the “intellectual property” exclusion to section 230 immunity applies only to federal intellectual property claims. Finally, it argued that Facebook, in any event, could not be held liable for the right of publicity and misappropriation claims under California law.
The Court’s Ruling
The trial court’s ruling granted the anti-SLAPP motion in part, but denied it in part. The motion was granted vis a vis the “failure to remove” claims under contract law and related torts; the decision in that regard is straightforward. But the judge refused to dismiss the claims based on Facebook’s having placing advertising on the anti-Mikel Knight Facebook pages that contained Cross’s name and likeness without his permission. These claims, the court said, were “intellectual property claims” because some California decisions hold that right of publicity claims are intellectual property claims; these state-court determinations, the court said, control whether they are within the “intellectual property” exclusion from section 230. The judge simply ignored the Ninth Circuit caselaw holding that section 230(e)(3)’s exclusion applies only to federal intellectual property claims. And having disposed of section 230, he went on to hold that the fact that Facebook had posted
ads to pages where Cross’s name and likeness had been used without his consent made Facebook likely guilty of commercial misappropriation of name and likeness and violation of the right of publicity. Because the unfair business practice claim was derivative of the right of publicity and misappropriation claims, the court found a likelihood of prevailing on that claim as well.
If this ruling is upheld, it will blow a gaping hole in the immunity provided by section 230. Plaintiffs who are unhappy about being criticized on any platform provided by an online service provider will be able to force the removal of those materials, and without even showing that there is anything false or otherwise tortious about the criticism – all they will have to argue is that they did not give permission for the use of their names or images in the criticism and that will be enough to make out a viable legal claim against the hosting company.
Flaws in the Court’s Ruling
I understand that Facebook intends to appeal this decision, and my view is that the appeal is likely to succeed, on several grounds.
Section 230 Immunity
I begin with what I think may well be the diciest ground for appeal– Facebook’s section 230 argument. The Ninth Circuit’s holding in Perfect 10 v. CCBill that section 230 only excludes federal intellectual property claims might be persuasive in the California Court of Appeal, especially given the fact that, if the state courts were to depart from the Ninth Circuit on this point, there would be conflict between the federal and state courts in the same jurisdiction that might be a powerful ground for certiorari on that point. However, although the Ninth Circuit’s policy argument for the Perfect 10 approach was strong, courts outside the Ninth Circuit have not been receptive to this holding which, indeed, is hard to defend based solely on the statutory language. I do not think that most ISP’s based in such states as Arizona, California and Washington, who at least have the benefit of Perfect 10 when they are defending themselves in the Ninth Circuit, would be thrilled to see this issue before the United States Supreme Court.
There is a separate basis for arguing against the application of the intellectual property exclusion, however and that is that the right of publicity and the commercial misappropriation claims are not property claims at all. The fact that some California decisions may denominate the right of publicity as a species of “intellectual property” is not dispositive, because the question is what “intellectual property” means as a matter of federal law, not state law. Federal bankruptcy law, for example, defines “intellectual property” in a way that excludes the right of publicity, 11 U.S.C. § 101(35A) (I am indebted to Rebecca Tushnet for this point), and the right of publicity and against commercial misappropriation are not within the rights that Congress is empowered to create under the Constitution’s Intellectual Property Clause. The World Intellectual Property Organization defines “intellectual property” as “creations of the mind” giving a list that excludes the right of publicity. There are, to be sure, a number of federal court decisions outside the Ninth Circuit that treat the right of publicity as being within section 230's intellectual property exclusion, but disagreeing with those decisions requires less distancing from the language of section 230 and hence might be a more promising avenue of argument.
State-law Limitations on the Right of Publicity
Second, it simply cannot be the case that a violation of the right of publicity can be found whenever someone talks about a celebrity and thereby makes a profit. People Magazine and the National Enquirer, for example, and a variety of other publications make their money writing about individuals about whom the public has an insatiable appetite for information, but they do not require the celebrities’ permission to write about them. Indeed, to the extent that the right of publicity is analogous to trademark rights, it applies when a use of the celebrity’s name and likeness creates a likelihood that consumers will believe that the celebrity has endorsed the company that used the name and likeness (analogous to the “likelihood of confusion” requirement).
But the allegations of the complaint make clear that the Facebook pages where Cross’s name and likeness appear were hostile to Cross, and inspection of the pages in question confirm that impression. For example, Prove Yourself Jason Cross aka Mikel Knight characterizes itself as a “Community Page about Mikel Knight”, hyperlinking in the manner approved by the Sixth Circuit in Taubman Company v. Webfeats back to Knight’s own Facebook page for those anyone who might prefer to look there. One of the first posts, which appears in the first screenful of the page’s timeline, describes the page’s purpose as being “to give Jason Cross aka Mikel Knight, and his fans or not fans, to share their own personal experiences with this story alleging Mikel Knight or Jason Cross smokes Marijuana and is physically, ethically and verbally abusive to the lost youth he claims to be teaching the better life and work ethics too [sic].” This language makes clear that the page is not endorsed by Cross. The second page that features in the California complaint, Jason cross aka Mikel Knight , which features the same hyperlink back to Cross's own Facebook page, similarly characterizes itself as a “Community Page about Mikel Knight”; the about section that appears in the first screenful says, “This is a site strictly about proving just who Jason cross is, feel free to say what you want.” Thus, both pages make clear that they are not sponsored by Cross himself.
It is particular disturbing to think of the ways that the right of publicity and commercial misappropriation theories that Judge Ayoob endorsed could be used to quash criticism (which is plainly Cross’s object here). No doubt the many publications that have headlined critical articles about Donald Trump have sold more copies, and secured more eyes for their advertising, by writing about him, but that does not mean that they violate Trump’s right of publicity. But think of how litigation-happy Donald Trump, who has flaunted his plan to narrow protections for criticisms that he deems unfair, could take advantage of Judge Ayoob’s decision to close down press articles about him that he didn’t like. Similarly, if Judge Ayoob is right, Peter Thiel would not have had to finance Terry Gene Bollea’s litigation to bring Gawker down; he could have taken his revenge on Gawker directly by saying that outing him violated his right of publicity because he never gave permission for writing an article about him. This is not a proper use of the right of publicity.
First Amendment Protections
Finally, lurking behind these state-law concerns are the protections provided by the First Amendment, which provides protection even for commer
cial actors and has long been respected by California’s right of publicity decisions. In the leading California case of Comedy III v. Saderup, the California Supreme Court said that “Giving broad scope to the right of publicity has the potential of allowing a celebrity to accomplish through the vigorous exercise of that right the censorship of unflattering commentary that cannot be constitutionally accomplished through defamation actions.” The court went on to rule, “the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope.”
What is missing in Judge Ayoob’s opinion is any recognition of this limitation on the right of publicity and commercial misappropriation claims that were pending before him. The fact that Cross was invoking these claims to suppress criticism jumps off page after page of the complaint. It is hard to imagine the ruling surviving appeal. But friends of free speech should certainly consider participating as amici curiae, as Public Citizen intends to do.