The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

O.J. Law, Back in Court


This time in a decision by Judge Veronica Barisich (Nev. Dist. Ct. Clark County), handed down in February but just posted on Westlaw; an excerpt:

[16.] There are only few factual disputes. Plaintiff [Malcolm Lavergne] is a Nevada attorney who has represented O.J. Simpson since 2009 regarding his robbery-related convictions, appeal, and Mr. Simpson's 2017 parole hearing. Plaintiff was not involved in the infamous O.J. Simpson 1995 criminal murder trial in California or the 1997 wrongful death civil trial in California. Defendant Kimberly Goldman is the sister of late Ronald Goldman, one of the victims in Mr. Simpson's criminal and civil trials, and she produced and co-hosted a podcast entitled "Confronting: O.J. Simpson." … Defendants Glass Entertainment Group, LLC and SQRL Media, LLC are the media production companies that produce the podcast. Defendant Nancy Glass is a producer, the principal of Glass Entertainment Group and SQRL Media, and co-host of the podcast. Defendant Wondery, Inc. is the podcast distributor.

[17.] Since late 2018, Defendants requested O.J. Simpson's participation in a documentary, which O.J. Simpson rejected. On June 17, 2019, after the podcast was launched, Ms. Glass directly contacted Plaintiff to solicit O.J. Simpson and Plaintiff to appear on the podcast, which Plaintiff also rejected. Ms. Glass recorded their phone conversation, and Plaintiff purportedly did so as well. The very beginning of the recorded call includes the following back and forth between Plaintiff and Ms. Glass:

Nancy Glass: "Hi Malcolm, this is Nancy Glass, I'm the Executive Producer of Kim Goldman's podcast… I'm wondering if you would be willing to appear on the podcast, to call into the podcast… well, first of all, can I record this call?

Plaintiff: "Yeah, I'm going to record it too."

Although Plaintiff has suggested that he did not consent to the recording of the telephone call, this allegation is contradicted by the evidence presented, and Plaintiff failed to cogently challenge the authenticity of the recording.

[18.] On July 10, 2019, Defendants released a podcast that contained almost the entirety of the recorded phone conversation, excluding Ms. Glass' conversation with the Plaintiff's receptionist and the period while Ms. Glass was on hold. The title of the podcast was "Get Over It." The podcast was downloaded almost 500,000 times. Defendants do not dispute that Plaintiff never used the phrase "Get Over It" during the phone conversation regarding Ms. Goldman and her family. Plaintiff claims that the title of the podcast placed him in false light and that the podcast is still being distributed without his consent by Defendants. He also claims that he never called Ms. Goldman a "piece of shit."

[19.] Plaintiff does not dispute that he publicly criticized Ms. Goldman and her family before, and after, the release of the podcast episode. In a Newsweek article, published November 24, 2017, the article quoted Plaintiff's public tweets, wherein Plaintiff called Ms. Goldman and her family "professional, public figure, victims" and "bullies" and called Ms. Goldman's father a "Plantation Master." Plaintiff again publicly tweeted on June 16, 2019 that Ms. Goldman is a "professional victim," "POS" (a common abbreviation for the phrase "piece of shit"), "disturbed," that Ms. Goldman's family are "greedy," "professional victims," only seeking "publicity and profit," and "hypocrites." On June 17, 2019, the Daily Mail published an article citing these tweets by Plaintiff. The article also noted that Plaintiff wrote several Twitter posts urging Ms. Goldman to "Move On." On July 17, 2019, Plaintiff appeared on another podcast, The Kirk Minihane Show, and stated that Ms. Goldman and her family need to "move on." On August 18, 2019, Plaintiff again publicly tweeted, describing Goldman and her family as "greedy," "hypocrites," and that they need to "move on." …

The court concluded that plaintiff's libel, false light, and right of publicity lawsuit were meritless and thus should be dismissed under Nevada's anti-SLAPP statute (and later ordered plaintiff to pay $100K in defendants' attorney fees and costs):

[21.] Defendants showed by a preponderance of the evidence that Plaintiff's claims are based upon a good faith communication in furtherance of free speech in connection with an issue of public concern….

[22.] At a minimum, Plaintiff is a limited purpose public figure. Plaintiff voluntarily injected or thrusted himself into a particular controversy or public concern and thereby became a public figure for a limited range of issues. Plaintiff chose to make public tweets posting disparaging remarks and thoughts about Ms. Goldman and her family and gave interviews in various media outlets before, and after, the subject podcast episode aired. This further reinforces the fact that the telephone recording was on a matter of public interest.

[23.] The main argument that Plaintiff makes in this case is that the title of the podcast episode, "Get Over It," is misleading. However, the determinative question is whether the gist or sting of the statement is true under Rosen. There is no dispute that Plaintiff publicly urged Ms. Goldman and her family to "move on" before and after the podcast episode was released. Although the phrases may convey a slightly different idea, the phrase "get over it" definitely meets the gist or sting test as set forth in Rosen and Taylor. Likewise, POS is both synonymous and a common abbreviation for the phrase, "piece of shit," and thus the podcast's suggest that Plaintiff called Ms. Goldman a "piece of shit" meets the same gist or sting test. Further, despite claiming to have not called Ms. Goldman a "piece of shit," Plaintiff did not dispute that during his appearance on The Kirk Minihane Show, the following colloquy took place:

Kirk Minihane: "You called her [Ms. Goldman] a 'piece of shit' in the Daily Mail, correct?"

Plaintiff: "I said 'POS,' but yeah, that was on Twitter.

Furthermore, any opinions that Ms. Goldman and/or Ms. Glass may have expressed during the telephone calls and/or podcast episode cannot be deemed false as there is no such thing as a false idea under Abrams….

[25.] Plaintiff undoubtedly has a statutory right of publicity under NRS 597.790(1). However, the exception set forth under NRS 597.790(2)(c) is applicable as the podcast's use of the telephone conversation between Plaintiff and Ms. Glass clearly constitutes a use "in connection with news, public affairs or sports broadcast or publication." Plaintiff's authorization was not required for the use of his name, image, voice or likeness in such circumstances. Thus, Plaintiff cannot make a prima facie case for a claim for violation of Nevada's Right of Publicity statute….

Congratulations to Colleen E. McCarty, Michael K. Twersky & Michael Beylkin of Fox Rothschild LLP, who represented defendants.