‘Gangland’ Faces Suit by Informant
The 9th U.S. Circuit Court of Appeals on Sept. 16 gave the green light to a suit by an informant whose identity was revealed on the History Channel show “Gangland” after its producers had promised to keep his identity secret, according to the opinion. The informant is suing both Gangland Productions and A&E Television Networks, the parent company of the History Channel.
The informant, identified only as John Doe in the lawsuit, agreed to be interviewed on the show, which chronicles the activities of violent U.S. street gangs. He spoke on camera about a childhood friend, a co-founder of the white supremacist gang Public Enemy No. 1, who had been killed. But the informant only did so based on promises by Gangland producers to keep his identity secret, he says.
Instead, they broadcast his face and identified him by his nickname on the show. As a result, he says, he has received death threats and lost his job as a police informant.
The defendants say the plaintiff had signed a release form that allowed them to broadcast his true identity. They also say that his suit is a SLAPP (strategic lawsuit against public participation) and is barred by California’s anti-SLAPP law, which protects speech about matters of public interest.
The informant claims he didn’t understand what he was signing because he’s illiterate and was told the release was just a receipt for the $300 he was paid to be on the show. He brought several causes of action in his lawsuit, including intentional and negligent infliction of emotional distress (IIED and NIED), and public disclosure of private facts.
A district judge denied the defendant’s motion to dismiss under the anti-SLAPP law, saying it did not apply to communications, i.e., the release and the producers’ promises, surrounding the plaintiff’s interview. He also said that while the topic of gang violence is a matter of public interest, the plaintiff’s identity, as a non-gang member, was not.
The 9th Circuit reversed in part, giving the defendants a fake victory: The anti-SLAPP law does in fact apply to the informant’s case, and that there is a public interest in the broad topic – the informant’s identity doesn’t have to be a specific matter of interest.
But because the informant has shown that he has a good chance of succeeding on most of his claims, the court said his suit can go forward.
California’s anti-SLAPP law has two prongs, and while the defendants passed the first test, they failed the second, at least in regards to his IIED, disclosure and false promises claims: they weren’t able to show that the plaintiff is unlikely to succeed at trial on the merits of his claims. They were able to dismiss his NIED claims.
Release by Fraud Is No Release
While normally a release like the one the plaintiff signed would preclude him from any recovery, he’s alleged a specific circumstance that the courts have recognized. “Generally a person is bound if he or she signs a document like this — a release or a contract,” says Evan Brown, a lawyer with The Information Law Group in Chicago.
“But if it turns out that the other side got the person to sign it by fraud, then the court may determine that the document does not apply,” he explains. “That’s exactly what the plaintiff claims happened here.”
“If the court believes that the producers intended to deceive him, and that he relied on that deception, it will ignore the release,” Brown predicts.
SLAPP on the Wrist
Anytime a federal appeals court lays down the law on an issue, it can affect the ability of future litigants to recover or have lawsuits tossed. In this case, even though Gangland and A&E lost for all practical purposes, the 9th Circuit ironically made it easier for defendants to get SLAPPs dismissed going forward.
“The lower court decided that the anti-SLAPP statute did not apply in this case because what the production company did was not constitutionally protected, in that it was accused of broadcasting the plaintiff’s identity without his consent — something that is not legal,” says Brown.
“But the appellate court decided that the lower court got that wrong — it does not matter for purposes of determining whether the anti-SLAPP statute applies whether what you are accused of doing is illegal,” he explains. “This opinion makes it easier for people who have been sued over exercising their free speech rights to get the case thrown out.”
Who’s More Believable?
Now the case goes back down to the trial court, and the plaintiff will have a chance to convince a judge or jury that he deserves to recover damages from the show.
Brown notes that this case is interesting because of the totally conflicting stories being told by each side. “The most interesting thing that will happen in the case now will be figuring out exactly what happened,” he notes.
“For example,” Brown points out, “the plaintiff said he wore a bandana over his face to the interview to conceal his identity, and took it off only after the producers told him not to worry about his identity. The production company, on the other hand, says that plaintiff gave no concern at all about his identity. It will be interesting to see how the court sorts out those differing stories.”