A&E and Gangland Productions, two television production comapnies, can’t find shelter under the First Amendment from a lawsuit by a police informant whose identity was disclosed in a documentary, possibly endangering his life, a federal appellate court has ruled.
The U.S. Court of Appeals for the Ninth Circuit in Los Angeles waded into sensitive territory — the zone between privacy and free expression rights — before ordering a lower court to take the case back up of “John Doe” and what happened to him when he appeared on a televised documentary about a white supremacist gang.
Doe was interviewed for the History Channel’s documentary series Gangland about Public Enemy Number 1, which started as a group of upper middle-class punk-rock fans and since has turned into a gang of white supremacist-affiliated, drug- and gun-trafficking and identity-theft criminals, authorities say.
Doe was a police informant familiar with the gang. He insists the production companies promised to protect his identity but they failed to do so. Saying his granting an interview was contingent on the firms’ shielding his identity, he notes that he came to his taping with a hat and bandana but wsas told this disguise was unncessary. Gangland’s producer says Doe signed a release, allowing for his on-air identification, though he says he is dyslexic, struggles to read and thought he was signing a receipt for payment.
An episode that aired on April 21, 2010, disclosed Doe’s identity. He sued the production companies. A&E and Gangland Productions responded with an anti-SLAPP motion, a legal step to speed up consideration and potential dismissal of legal actions that interfere with the exercise of First Amendment rights.
A trial judge rejected the motion, prompting defendants’ appeal. They said the lower court had erred when it found this legal dispute did not arise from protected First Amendment activity because it had been an illegal broadcast, which could not be protected.
The appellate court recognized the production companies’ First Amendment rights and said their show on white supremacist gangs dealt with a public concern. Judge Harry Pregerson overruled the trial judge on the SLAPP motion, writing that Doe’s “assertion that the Defendants frequently disclosed his identity has no bearing on whether Defendants engaged in protected activity.” He ordered the trial judge to apply the SLAPP “public interest” requirement broadly.
But in remanding the case,, Pregerson also found that Doe showed he may prevail at trial on some of his claims. He said Doe “made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void.” If the trial court agrees, then Doe would show a reasonable probability of prevailing on his privacy claims of public disclosure of private fact, intentional infliction of emotional distress, false promise, and declaratory relief.