The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From TS Media, Inc. v. PBS, 2018 WL 2323233 (D.C. Super. Ct.), apparently decided May 15, 2018, but just posted on Westlaw (and to my knowledge not noted in any media accounts):
On February 20, 2018, Plaintiffs [TS Media, Inc. ("TSM"), The Smiley Group, Inc., and Tavis Smiley Presents, Inc.] filed their four-count complaint alleging (1) breach of PBS's November 2016 agreement with TSM, (2) breach of PBS's November 2017 agreement with TSM, (3) intentional interference with contract, and (4) tortious interference with business expectancy. In the contract counts, Plaintiffs claim that the breach of contract was that PBS indefinitely suspended distribution of the Tavis Smiley show to PBS member stations after former co-workers accused Mr. Smiley of sexual harassment. The tort counts arise out of PBS's statements to the media in December 2017 that "'multiple credible' allegations of sexual misconduct" by Mr. Smiley caused it to stop distributing the show.
PBS moved to dismiss the interference with contract and interference with business relations claims, which the court viewed as basically alternative ways of stating a libel claim, given that the essence of plaintiffs' argument was that PBS made false statements that damages plaintiffs' reputation and thus injured plaintiffs' business prospects (see the first paragraph of the second block quote below); the motion was brought under D.C.'s Anti-SLAPP Act, which provides an expedited procedure to dismiss meritless claims based on speech on matters of public interest. The court agreed that the Act applied:
Plaintiffs' tort claims are based on PBS's statements to the media that "'multiple credible' allegations of sexual misconduct" caused it to stop distributing Mr. Smiley's show to its member stations. These statements are expression that involves communicating views to members of the public. These statements also plainly concern an "issue of public interest" within the meaning of § 16-5501(3) because they relate to a public figure: Plaintiffs' complaint includes allegations establishing that Mr. Smiley is a public figure, and Plaintiffs concede as much in their opposition.
Moreover, PBS made the statement at a time of extraordinary public interest in alleged sexual misconduct by men in positions of power, particularly in news and entertainment. Plaintiffs themselves recognize this fact in the section of their complaint entitled "Sexual Harassment and the #metoo Movement in America": "beginning in approximately October 2017, sexual harassment in the workplace became a major topic of conversation throughout the United States. Many famous and successful men have rightfully been outed for their improper, and in many cases, criminal behavior. Hosts on network television … voluntarily left their jobs in scandal as a result of allegations against them concerning sexual harassment."
Plaintiffs' primary contention is that the Anti-SLAPP Act does not apply to PBS's statements to the media about this issue of public interest because PBS made the statements primarily to protect its commercial interests. Section 16-5501(3) provides, "The term 'issue of public interest' shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance." Plaintiffs' argument is effectively foreclosed by Doe No. 1 v. Burke (D.C. 2014). Burke rejected the argument that to establish a prima facie case, the speaker must "disprove commercial motivation, even where such motivation is not apparent from the content of the speech." … The statements by PBS that form the basis of Plaintiffs' tort claims do not on their face discuss or further any commercial interest of PBS, which is a non-profit entity. Excluding PBS's statements from the protection of the Anti-SLAPP Act would conflict with its purpose to protect "the constitutional interests of the defendant who can make a prima facie claim to First Amendment protection."
And the court concluded that plaintiffs' claim was indeed meritless:
Because PBS's speech concerned a matter of public concern and a public figure, Plaintiffs must show that PBS acted with actual malice—that is, Plaintiffs must prove by clear and convincing evidence '"that the statement was made … with knowledge that it was false or with reckless disregard of whether it was false or not."' "First Amendment restrictions apply to suits for intentional interference with contractual relations," and "a plaintiff may not use related causes of action to avoid the constitutional requisites of a defamation claim."
Mr. Smiley admitted to PBS that he had sexual relationships with workplace colleagues during the course of his 30-year career, and Plaintiffs do not provide any evidence that PBS knew that these relationships were purely consensual, or that PBS had serious doubts about the credibility of any of his accusers. PBS's alleged hostility towards Mr. Smiley is legally irrelevant to whether it knew its statements were false or made them with reckless disregard for the truth…. "… '[A]ctual malice' must be shown regardless of the speaker's motives." … Plaintiffs also do not provide evidence establishing a likelihood of success in proving that PBS stated falsely or recklessly that it had engaged an outside law firm to conduct an investigation of the allegations against Mr. Smiley; indeed, Plaintiffs admit that members of a law firm representing PBS interviewed Mr. Smiley….
In light of this ruling, the Court need not decide whether PBS's assessment of the credibility of Mr. Smiley's accusers was a non-actionable opinion. Plaintiffs' lack of evidence of knowledge of falsity or reckless disregard for truth also makes it unnecessary to decide whether Plaintiffs offered evidence establishing a likelihood of success on other elements of their tort claims.
It's not clear to me whether it's sound to read the statute as distinguishing for-profit broadcasters from nonprofit ones; both are constitutionally protected speakers, and both also have commercial interests. Still, though a broadcaster understandably has "commercial interests" in protecting its reputation with viewers, alleged misconduct by high-profile speakers on the broadcasting network is also "a matter of public significance," and not just a "private interest."