From Copeland v. Netflix, Inc. (D. Del.), decided today by Third Circuit Judge Stephanos Bibas, sitting by designation:
Fame has many costs. One comes from the First Amendment: It shields publishers from lawsuits when they report inaccurately about public figures involved in public controversies (as long as they do so without "actual malice"). This case begins and ends with that First Amendment shield.
While R. Kelly was being tried for sex crimes and child abuse, his personal assistant Diana Copeland went on national TV to discuss what she had seen. Then a documentary about Kelly discussed Copeland's supposed role in his crimes.
Because of this negative coverage, Copeland sued the show's producers and distributors for defaming her, appropriating her name and likeness, and committing related torts. But she had thrust herself into this public controversy and became a public figure in it by appearing on national TV. So she must plausibly plead that defendants had so-called "actual malice"—that they knew (or recklessly disregarded) that the statements featured in the show were false. But she does not. So I now dismiss her defamation claim and other tort claims that recycle it. Plus, she has failed to plausibly plead that defendants used her name and likeness for its unique value (as opposed to its newsworthiness). So I also dismiss her claim of appropriation….
The opinion follows existing First Amendment law, but also illustrates one interesting feature of that law: It essentially imposes a tax on constitutionally protected activity ("thrust[ing one]self into [a] public controversy"), by concluding that people who engage in such activity surrender part of their common-law protections against libel. Had Diana Copeland not chosen to go on a national TV program to discuss the R. Kelly controversy, she may well have had the broader libel law protections offered to private figures (under which she could recover proven compensatory damages on a showing of mere negligence by the defendants, not "actual malice").
But once she entered into the public debate, she lost those broader protections. And though in principle she could prevail by showing the defendants knew the statements were false (or were likely false), in practice that's very hard to do, because she can't even get discovery unless she can offer "enough facts to state a claim to relief that is plausible on its face." Here's how this played out:
Copeland went on Good Morning America "for a brief interview regarding her experience with Mr. Kelly." In that interview, Copeland admitted that she had made travel arrangements for Kelly's many girlfriends and often went along on their outings. She revealed that his girlfriends would not speak to other men in public because "you can pretty much surmise that" Kelly had told them not to. One time, a woman would not use the bathroom on a public outing because she "did not have permission from Kelly." But Copeland stressed that she had never made travel arrangements for any underage girls and had never seen Kelly lock up women, as the charges alleged. When asked if any of this "raised an alarm" for her, she replied that Kelly's "personal life is [his] personal life, so my job stops at the threshold of his bedroom door." She concluded: "Looking back, I think that I would have done things the same way I did. I don't think that anything that I did was wrong."
More than a year later, Lifetime aired an episode of Surviving R. Kelly discussing Copeland's role. She alleges that the episode published multiple "explicit[ly] false statements" about her, including that:
- she had "acted as a liaison between Mr. Kelly and all of his girlfriends—including underage girls";
- "[e]very victim knew" her;
- she "took a victim to obtain an abortion and received another victim's STD results on Mr. Kelly's behalf";
- she "was directly involved in helping underage women cross state lines";
- she "was willing to do whatever it was that Mr. Kelly wanted because she was close to him and instrumental in his day-to-day life";
- she "made travel arrangements for Mr. Kelly's underage victims";
- she "knew about Mr. Kelly's criminal conduct and turned a blind eye"; and
- she "was part of Mr. Kelly's criminal enterprise."
… Copeland claims that the episode defamed her by portraying her as Kelly's coconspirator. She says that this false narrative cast her in a "sinister and defamatory light," leaving people "believing she is immoral, a predator, dangerous, or untrustworthy." …
This case is about a public controversy—"a real dispute, the outcome of which affects the general public or some segment of it." The challenged statements assert that Copeland not only turned a blind eye to Kelly's crimes, but also helped him by (among other things) coordinating with the girlfriends and helping young girls cross state lines. When Lifetime aired the challenged episode, Kelly had been charged with preying on girls for years, and ultimately he went to prison for doing that. The public would naturally be concerned with whether Copeland had helped him commit those crimes.
Plus, by going on national TV to discuss Kelly, Copeland "voluntarily inject[ed]" herself into the public discourse. She "invited public attention, comment, and criticism" by admitting that she had accompanied Kelly's girlfriends on outings, made travel arrangements for them, known that they were afraid to speak to other men, and yet declared that "her job stops at the threshold of [Kelly's] bedroom door" and that she would not have done anything differently.
Because Copeland became a limited-purpose public figure, defendants are not liable for defamation unless they made false statements about her with "actual malice." This is a term of art that does not require malice in the ordinary sense. Rather, "actual malice" requires a publisher to either know that the statements are false or "reckless[ly] disregard" whether they are true. Reckless disregard means that the publisher "in fact entertained serious doubts as to the truth of his publication." …
[Copeland] must plead "more than labels and conclusions"; she needs "enough facts to state a claim to relief that is plausible on its face." She has not borne that burden.
Though Copeland alleges that defendants were "reckless, … deliberate and malicious," that phrase just regurgitates the legal standard. It is conclusory, not a plausible fact. So are her allegations that "Defendants had access to the truth yet chose to ignore it" and that the "producers knew there was no evidence whatsoever to support the false narrative."
Even when Copeland offers more than legal conclusions, she does it to meet the wrong legal standard. She claims that defendants published these allegedly false statements to get back at her. She alleges that the producers had it out for her because she chose to go on Good Morning America rather than appearing on their show and because the contents of the Good Morning America interview "undermined the Film's theme and message."
In support of this claim, she pleads two pieces of circumstantial evidence. For one, she complains that the producers asked two former Kelly employees, who allegedly both had personal vendettas against Copeland, to appear on the show. For another, she also complains that a former employee who was interviewed on the show told her that the producers had encouraged the employee to say negative things about her.
At most, those two pieces of evidence suggest a bad motive. Yet motive does not matter. Actual malice has "nothing to do with bad motive or ill will." Even if defendants indeed had a "vendetta" against Copeland and wanted to "punish [her] for her public statements that contradict the Film's 'mob' theme," that would not state a plausible claim of actual malice. That is because "actual malice focuses on [Lifetime's] attitude towards the truth, not towards [her]."
Even if defendants did pursue this vendetta, there is no reason to infer that they seriously doubted that their statements were true. For instance, nothing in the complaint suggests that they had "obvious reasons to doubt the veracity of the [sources] or the accuracy of" their accounts. Copeland does not even allege that defendants knew about the former employees' supposed vendettas or had any other reason to think that they "were prone to exaggeration or lying or would deliberately engage in such conduct." And she does not distinguish among defendants, failing to plead this mental state as to each one.
Copeland also says defendants falsely implied that she knowingly took part in a criminal enterprise. But she pleads nothing to suggest, as she must, that Lifetime intended to imply that or that it knew about that implication and recklessly disregarded its truth.
Finally, Copeland claims that Lifetime defamed her to "prioritize financial gain over the accuracy and integrity of [its] content." But Lifetime's alleged desire "to increase its profits" is also not enough to prove actual malice….
The First Amendment demands "adequate breathing space" for the free flow of ideas, especially about public figures on matters of public controversy. The actual-malice standard shields publishers from liability for mistakes, while still preserving defamation remedies where the publisher knew that he was publishing falsehoods or deliberately ignored the truth. Copeland fails to clear that high bar. The complaint offers only conclusions and speculation of ill will, not allegations of actual malice….
Daniel Marc Kirshenbaum and Robert M. Vrana (Young, Conaway, Stargatt & Taylor LLP) and Cydney S. Freeman, Jonathan Segal, and Jesse Feitel (Davis Wright Tremaine LLP).
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