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Former Congresswoman Katie Hill’s Revenge Porn Complaint Against Daily Mail, RedState.com Dismissed Under California Anti-SLAPP Law

In November 2018, Democrat Katie Hill won a Congressional seat representing a northern Los Angeles exurb that had been held by Republicans since 1993. Once in Washington, she was a rising star in the party and one of two freshman Representatives chosen for the Democratic Caucus.

On October 18, 2019, RedState, a conservative political blog owned by Salem Media Group (“Salem”), published allegations that Hill was having an affair with Graham Kelly, her legislative director. RedState and Daily Mail also published nude photographs of Hill with another staffer who had been in a “throuple” relationship with her Hill and her husband and another redacted nude photo of her smoking a bong that revealed a Nazi Iron Cross tattoo on her bikini line. (which Hill had criticized as racist in social media posts). The reports triggered a House Ethics Committee investigation and Hill admitted to having an inappropriate relationship with Kelly.

By October 31st, Hill gave her final speech to Congress and resigned effective November 3, 2019. She filed a complaint under California’s revenge porn statute and other claims on December 22, 2020 against her now ex-husband, Salem, the Daily Mail and others. Salem and the Daily Mail moved to strike the complaint under California’s anti-SLAPP statute which requires that claims arising out of the exercise of the First Amendment demonstrate a likelihood of success to proceed. On April 7th, Los Angeles Superior Court Judge Yolanda Orozco granted the Daily Mail’s and Salem’s anti-SLAPP motion and they may now seek to recover their attorneys’ fees although Hill has vowed to appeal.

The key passage of Judge Orozco’s ruling is as follows:

Here, Defendant has established that the images are a matter of public concern, as they speak to Plaintiff’s character and qualifications for her position as a Congresswoman, allegedly depicting an extramarital sexual relationship with a paid campaign staff member, the use of illegal drugs by a sitting Congresswoman, and a tattoo similar to the symbols formerly used by white supremacists. 

Plaintiff’s argument that the images are not a matter of public concern because Defendant could have simply described the images rather than publishing them is unpersuasive, as the fact that information to be gleaned from an image may be disseminated in an alternative manner does not equate to a finding that the image itself is not a matter of public concern.

Los Angeles Superior Court Judge Yolanda Orozco, Hill v. Heslep (LASC 20STC48797) (Apr. 7, 2021).

In essence, the court found that the images were newsworthy despite the nudity that may have been present. A simple nude photo of Hill or any other member of Congress would not necessarily be a matter of public concern.

Below are excerpts from the court’s adopted Tentative Ruling as to the Daily Mail.

Excerpts from Tentative Ruling

Defendant moves to strike Plaintiff’s entire Complaint as an unlawful SLAPP. 

First Prong: Protected Activity 

An anti-SLAPP motion requires the moving party to bear the initial burden of establishing a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894.) 

“‘A cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) if the plaintiff’s claims are predicated on conduct that is (1) in furtherance of the right of free speech, and (2) in connection with a public issue or issue of public interest.’ [Citation.] “‘An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.’” [Citations.]” (Collier v. Harris (2015) 240 Cal.App.4th 41, 51.)

 “The California Supreme Court held that Web sites accessible to the public are “public forums” for the purposes of the anti-SLAPP statute. [Citation.] “‘Cases construing the term “public forum” as used in section 425.16 have noted that the term “is traditionally defined as a place that is open to the public where information is freely exchanged.” [Citation.] “Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication.’” [Citation.]” (Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 950.) 

“It is beyond dispute that reporting the news is an exercise of free speech. [Citations.] California courts have also held pre- and post-reporting conduct, such as investigating, newsgathering, writing, and interviewing is conduct in furtherance of free speech. [Citations.] As in Lieberman, courts have held defendants may satisfy the showing they were engaged in conduct in furtherance of free speech under section [425.16], even when their conduct was allegedly unlawful. [Citations.]” (Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1044–1045.) 

“Reporting the news is speech subject to the protections of the First Amendment and subject to a motion brought under section 425.16, if the report concerns a public issue or an issue of public interest. [Citation.]” (Lieberman, supra, 110 Cal.App.4th at 164.) “[T]he constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.” [Citation.] Indeed, “‘[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. “Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.”’” [Citation.] “The character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’” for purposes of section 425.16. [Citation.]” (Collier, supra,240 Cal.App.4th at 52.) 

.Defendant contends that the controversy over Plaintiff’s alleged improper relationships with staffers already was playing out publicly prior to the Article’s publication, including coverage of announcements from the House Ethics Committee and from Plaintiff herself. (Complaint ¶ 67-78; Laidman Decl., Exh. C-D.) Thus, Plaintiff acknowledges that the “story and images spread like wildfire across hyper-partisan publications” and then “made headlines everywhere – The Washington Post, CNN, Politico, NPR.” (Complaint ¶ 83, 85; Laidman Decl., Exh. D, G-I.) Defendant asserts that this further demonstrates the requisite connection to issues of public interest, as “public interest can be ‘evidenced by media coverage.’” (Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 238–239.) 

In opposition, Plaintiff argues that the core injury-producing conduct underlying her claims is the nonconsensual distribution of her private sexual images. (Complaint ¶ 148.) Plaintiff asserts that the cause of action centers around intentional sharing without consent. Plaintiff contends that publication is not an element of the causes of action and is relevant only insofar as Defendant’s extensive online reach increases Plaintiff’s damages. Plaintiff argues that speech plays no role in the core injury-producing conduct. Plaintiff asserts that even when distribution is arguably speech, distribution is nevertheless distinct from speech. 

The Court finds that the gravamen of Plaintiff’s Complaint against Defendant constitutes protected activity under Sections 425.16(e)(3) and (4). As correctly noted by Plaintiff, the gravamen of her Complaint against Defendant is Defendant’s distribution of Plaintiff’s intimate images. However, the distribution of such images is alleged to have only occurred through their publication on the MailOnline website. Accordingly, Defendant’s distribution of the intimate images through their publication constitutes a “statement” or “other conduct in furtherance of the right to free speech” for the purposes of the anti-SLAPP analysis. 

As held by the authorities above, reporting the news is speech subject to the protections of the First Amendment and subject to an anti-SLAPP motion if the report concerns a public issue or an issue of public interest. (Lieberman, supra, 110 Cal.App.4th at 164.) Further, “[t]he character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’” for purposes of section 425.16. [Citation.]” (Collier, supra,240 Cal.App.4th at 52.) Here, the intimate images published by Defendant spoke to Plaintiff’s character and qualifications for her position, as they allegedly depicted Plaintiff with a campaign staffer whom she was alleged to have had a sexual affair with and appeared to show Plaintiff using a then-illegal drug and displaying a tattoo that was controversial because it resembled a white supremacy symbol that had become an issue during her congressional campaign. (Complaint, Exh. B, E.) Accordingly, the images were a matter of ‘public issue or public interest.’ 

Notably, Plaintiff does not dispute that MailOnline is a public forum for the purposes of the anti-SLAPP statute. 

Based on the foregoing, the Court concludes that Defendant has prevailed as to the first prong. 

            Second Prong:  Probability of Success on the Merits 

On the second prong of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) The plaintiff is required to present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Code of Civ. Proc., § 425.16(b); Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-151.) 

                        First Cause of Action for Violation of Civil Code Section 1708.85 

Civil Code section 1708.85, entitled “Distribution of sexually explicit materials; private cause of action; use of pseudonym,” provides, in relevant part: 

(a) A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.

(b) As used in this section, “intimate body part” means any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing.

(c) There shall be no liability on the part of the person distributing material under subdivision (a) under any of the following circumstances:

(1) The distributed material was created under an agreement by the person appearing in the material for its public use and distribution or otherwise intended by that person for public use and distribution.

(2) The person possessing or viewing the distributed material has permission from the person appearing in the material to publish by any means or post the material on an Internet Web site.

(3) The person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public.

(4) The distributed material constitutes a matter of public concern.

(5) The distributed material was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the person depicted had no reasonable expectation of privacy.

(6) The distributed material was previously distributed by another person. 

(Civ. Code, § 1708.85(a)-(c).) 

   Public Concern Exception 

While there are no published decisions addressing the public concern exception to Civil Code section 1708.85, both parties in this instance cite to cases involving a similar public concern exception, often referred to as the “newsworthiness” defense, involved with the tort of invasion of privacy: public disclosure of private facts. Because it appears that the parties are in agreement that the public concern exception of Civil Code section 1708.85 is analogous to the “newsworthiness” defense in an invasion of privacy action, the Court analyzes the public concern exception based on the principles articulated in those lines of cases. 

“[T]he analysis of newsworthiness inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution[.]” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 215.) 

“In determining whether a particular incident is “newsworthy” and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article’s intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety. [Citation.] If the information reported has previously become part of the “public domain” or the intrusion into an individual’s private life is only slight, publication will be privileged even though the social utility of the publication may be minimal. ([Citation] (publication of photograph of plaintiffs in public place not sufficiently intrusive); [citation].) On the other hand, when the legitimate public interest in the published information is substantial, a much greater intrusion into an individual’s private life will be sanctioned, especially if the individual willingly entered into the public sphere.” (Kapellas v. Kofman (1969) 1 Cal.3d 20, 36.) 

“Because of their public responsibilities, government officials and candidates for such office have almost always been considered the paradigm case of “public figures” who should be subjected to the most thorough scrutiny. In choosing those who are to govern them, the public must, of course, be afforded the opportunity of learning about any facet of a candidate’s life that may relate to his fitness for office. [Citations.] Consequently, the press must be given ample “breathing space” to disseminate all information that may cast light on a candidate’s qualifications. As the United States Supreme Court emphasized in Garrison v. Louisiana, [citation], ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” [Citation.]’” (Kapellas, supra, 1 Cal.3d at 36-37.) 

“Those who seek elected public position realize that in so doing they subject themselves, and those closely related to them, to a searching beam of public interest and attention. ([Citation] (”A politician, running for public office, in effect, offers his public and private life for perusal so far as it affects his bid for office.“); [citations].) Generally, courts will be most reluctant to impede the free flow of any truthful information that may be relevant to a candidate’s qualifications for office. . . . [N]ormally the public should be permitted to determine the importance or relevance of the reported facts for itself. If the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office, the compelling public interest in the unfettered dissemination of information will outweigh society’s interest in preserving such individuals’ rights to privacy.” (Kapellas, supra, 1 Cal.3d at 37-38.) 

“[I]mages may involve issues of public interest. [Citation.] However, . . . the Catsouras court explained, ‘morbid and sensational eavesdropping or gossip “serves no legitimate public interest and is not deserving of protection.”’ [Citations.]” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1258–1259.) 

Defendant first argues that the public concern exception bars Plaintiff’s claim under Section 1708.85 because the Article bears on Plaintiff’s character and fitness for office. Defendant asserts that the Article reported on allegations that a member of Congress had sexual relationships with staffers, which was the subject of an Ethics Committee probe. (Laidman Decl., Exh. E.) Defendant contends that the Article discussed Plaintiff’s personal life with her ex-husband and their bringing of a young campaign aide into their relationship, entwining Plaintiff’s private and public lives and raising questions about potential abuse of power, as Plaintiff acknowledged in her memoir. (Laidman Decl., Exh. E, I.) Defendant argues that the Article also explained why the drug use and tattoo depicted in the Water Pipe Picture raised questions about Plaintiff’s political hypocrisy given her role in Congress and criticisms of others she made during the campaign. (Laidman Decl., Exh. B, E.) 

Defendant asserts that with respect to the two specific photos at issue here, the Hair Brushing Picture provided visual confirmation of Plaintiff’s relationship with her campaign aide. (Complaint ¶ 80; Laidman Decl., Exh. E.) Defendant contends that the Water Pipe Picture appears to show Plaintiff smoking marijuana, which is illegal under federal law, and the Article explained that the photo apparently was taken “before marijuana was legalized for recreational consumption in California.” (Laidman Decl., Exh. E.) Defendant argues that the Water Pipe Picture also showed Plaintiff’s iron cross tattoo; the Article explained that it was “similar to the symbols formerly used by white supremacists referencing a World War II Nazi medal,” which “could open the congresswoman to accusations of hypocrisy” because during her campaign, she had criticized a rival for an ad featuring a veteran who displayed a similar symbol on social media. (Laidman Decl., Exh. E.) Defendant asserts that the images clearly have the requisite logical relationship or nexus to the Article’s newsworthy subject matter. (Shulman, supra, 18 Cal.4th at 224.) 

Defendant contends that Plaintiff cannot avoid these protections by arguing that the photos were not necessary or that a written description would have been sufficient. (Complaint ¶ 142.) Defendant argues that courts have rejected this kind of judicial second-guessing of news reporting. (Shulman, supra, 18 Cal.4th at 221, 229.) 

Defendant finally asserts that public figures like Plaintiff invite more scrutiny and the newsworthiness inquiry considers the extent to which the plaintiff played an important role in public events. Defendant contends any intrusiveness was not disproportionate to the photos’ relevance. Defendant argues that it is undisputed that MailOnline redacted the two photos so that no genitalia or other sensitive body parts were visible; the Complaint alleges only that a small portion of “the breast below the top of the areola” were shown. (Complaint ¶ 135-136; Laidman Decl., Exh. E.) Defendant asserts that the Complaint also alleges that Heslep had disseminated “more than seven hundred images,” but MailOnline only published two images that directly illustrated the alleged misconduct that resulting in Plaintiff’s resignation from here Congressional seat. (Complaint ¶ 69; Laidman Decl., Exh. E.) Defendant contends that Plaintiff’s claims against it are thus barred in their entirety. 

In opposition, Plaintiff argues that Defendant does not adequately show that the distributed material is a matter of public concern. Plaintiff asserts that the public’s right to literally view an image can legitimately be weighed against the harm imposed upon the depicted individual. Plaintiff contends that while Defendant’s published statements about Plaintiff may well be protected speech, Defendant is being sued for the nonconsensual distribution of the intimate images, not the speech. Citing to Jackson v. Mayweather ((2017) 10 Cal.App.5th 1240, 1247), Plaintiff argues that the nude images were not newsworthy because Defendant could – and did – convey the same thing with words by describing the images which depicted Plaintiff nude. Plaintiff asserts that her nude images did not contribute to the public debate generally, or the specific issues identified by Defendant; they were included for “morbid and sensational prying” and now are being held up under the guise of newsworthy material. Plaintiff contends that no California Court has ever addressed the issue at hand here, in which the sensationalistic dissemination of a nude image of a politician occurs to generate web traffic, and the Court is therefore not obligated to hold said dissemination as protected activity. 

The Court finds that Plaintiff has failed to carry her burden establishing that there is a probability of success on the merits on her claim under Civil Code section 1708.85. Section 1708.85(c)(5) provides for an exception from liability for images which are a matter of public concern. Here, Defendant has established that the images are a matter of public concern, as they speak to Plaintiff’s character and qualifications for her position as a Congresswoman, allegedly depicting an extramarital sexual relationship with a paid campaign staff member, the use of illegal drugs by a sitting Congresswoman, and a tattoo similar to the symbols formerly used by white supremacists. 

Plaintiff’s argument that the images are not a matter of public concern because Defendant could have simply described the images rather than publishing them is unpersuasive, as the fact that information to be gleaned from an image may be disseminated in an alternative manner does not equate to a finding that the image itself is not a matter of public concern. (Shulman, supra, 18 Cal.4th at 228-229.) The images cannot be said to be mere “morbid and sensational eavesdropping or gossip [which] ‘serves no legitimate public interest and is not deserving of protection.’” (Jackson, 10 Cal.App.5th at 1258–1259.) Moreover, as held by the authorities above, “normally the public should be permitted to determine the importance or relevance of the reported facts for itself.” (Kapellas, supra, 1 Cal.3d at 37-38.) 

Plaintiff’s citation to Jackson is of no help to her because the Court in Jackson specifically analogized the posting of a sonogram of the twins the plaintiff had been carrying prior to her abortion to the unauthorized distribution of photographs of a decapitated accident victim. (Jackson, supra, 10 Cal.App.5th at 1258.) Hence the phrase “morbid” used in Jackson. The court in Jackson quoted Michaels v. Internet Entertainment Group, Inc. ((1998) 5 F.Supp.2d 823, 839), a case on which Plaintiff also relies, for the proposition that even celebrities have privacy rights when it involves their sexual conduct. The Michaels caseinvolved a lawsuit brought by two celebrities against an internet pornography company that sought to distribute a sex video depicting plaintiffs having sex. That case is readily distinguishable as the distribution would have been of the entire video all of which depicted private sexual conduct. In a subsequent decision in the same case the court rejected plaintiffs’ privacy claims against media defendants who published excerpts from the sex video tape in news reports, citing to Shulman. See Michaels v. Internet Entertainment Group, 1998 WL 882848 (C.D. Cal. Sept. 11, 1998.).

 The two photos at issue here are nowhere as explicit as the sex video tape in the Michaels case, and are not morbid as the photos in Jackson were described. The photos show a sitting Congresswoman engaging in conduct some might consider highly inappropriate and perhaps unlawful, with one exhibiting Plaintiff’s tattoo which looks similar to the symbols formerly used by white supremacists. The facts of which these photos speak are about Plaintiff’s character, judgment and qualifications for her congressional position. Of course, these are matters of public concern. “[T]he publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office, [and thus,] the compelling public interest in the unfettered dissemination of information will outweigh society’s interest in preserving such individuals’ rights to privacy.” (Kapellas, supra, 1 Cal.3d at 37-38.) 

Based on the foregoing, the Court finds that Defendant has prevailed on the second prong as to the first cause of action. Defendant’s special motion to strike is GRANTED as to the first cause of action. 

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