Ninth Circuit Opinion Applies Significant Choice-of-Law Analysis Before Striking Right of Publicity Claim Under the First Amendment

by Paul Alan Levy

In an opinion that bristles with significant issues, the Court of Appeals for the Ninth Circuit has upheld the dismissal of a lawsuit by Sgt. Jeffrey Sarver asserting that a Hollywood studio could not release a film based, in part, on a fictional portrayal of important public events  in which he played a part without obtaining his permission and, in fact, paying for the right to talk about him.

The case involved the Hollywood blockbuster Hurt Locker, which apparently used the real-life experiences of plaintiff Sarver, who served as an explosives expert in Iraq, as the basis for fictional character Will James.  Sarver, who was assigned to a military facility in New Jersey at the time the film was released, brought suit in federal court there alleging claims of misappropriation of likeness and right of publicity, as well as defamation and related torts based on the ways in which the fictional aspects of the James character departed from the facts of his life.  After the New Jersey court granted a motion to transfer the case was transferred to the Central District of California, where most of the defendants were located, they filed a special motion to strike under California’s anti-SLAPP statute.

The trial court granted that motion and the Ninth Circuit has now affirmed.   The general press and several bloggers have addressed have addressed the substantive parts of the opinion – the court discussed whether Sarver had a sound right of publicity under state law, expressed considerable doubt about that, but went on to rule that, even assuming a sound right of publicity claim, that right does not sufficiently serve a compelling government interest to survive the scrutiny that the First Amendment requires for claims based on the contents of speech.  Eugene Volokh was generally pleased by the decision, although he calls for a broad reassessment of the whole right-of-publicity doctrine; Jennifer Rothman sees more dark clouds behind the silver lining.    There is also a good discussion on Rebecca Tushnet’s blog.

But my attention was equally drawn to the court’s discussion of a procedural issue of increasing importance (which Tushnet mentions)— whether California’s anti-SLAPP law applied at all in the case, considering that the case had been transferred from a New Jersey court and hence it was New Jersey’s choice-of-law rules, not California’s, that would apply.  A number of courts have recently applied the California anti-SLAPP statute in lawsuits pending in federal districts outside California, such as this Utah case that I discussed last year, and this Florida case that is currently before the Eleventh Circuit.

In Sarver, the trial  court’s decision to apply California’s anti-SLAPP law was easier because Sarver, although claiming New Jersey residence, provided no evidence supporting his claim of New Jersey domicile (and soldiers, apparently, do not acquire new domicile every time they are reassigned).  Consequently, in evaluating his contention that New Jersey’s lack of an anti-SLAPP law should override the fact that the California forum has an anti-SLAPP procedure, there was little to weigh on Sarver’s side of the choice-of-law balancing analysis.   One interesting aspect of the court’s analysis was its reliance on New Jersey state cases that express concern about the need to counteract the speech-repressive character of some litigation.  Such concern can be found in decisions in many states.

Until we have a federal anti-SLAPP statute, which would make these choice-of-law issues moot, at least in diversity cases, lawyers in free speech cases should always be attentive to the possibility that an anti-SLAPP law might apply even if the state in which the case was filed does not have such a statute.

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