False claims of “original” status don’t support public interest in disseminating art for anti-SLAPP purposes

Coker v. Sassone, — P.3d —-, 2019 WL 117467, 135 Nev.
Adv. Op. 2, No. 73863 (Jan. 3, 2019)
In the course of interpreting the Nevada anti-SLAPP law, the
Nevada Supreme Court says some things about the relationship between counterfeits
that might easily be taken out of context and applied to any copies; I hope future
applications heed its careful language.
Sassone is an artist and painter who has created numerous
works of art, but never made original, signed lithographs. When he saw such
advertised, he sued Coker, alleging that the copies being sold were counterfeit
and that his signature was forged. Coker filed a special motion to dismiss
under NRS 41.660, the state anti-SLAPP law, arguing that dissemination of
artwork to the public is expressive conduct and is in the public interest. The
district court denied Coker’s motion, finding that Coker failed to demonstrate
that his conduct was “a good faith communication that was either truthful or
made without knowledge of its falsehood,” one of the statutory requirements for
anti-SLAPP protection. The Supreme Court affirmed, conducting a de novo review.
Under Nevada law, district court considering a special
motion to dismiss must undertake a two-prong analysis. First, it must
“[d]etermine whether the moving party has established, by a preponderance of
the evidence, that the claim is based upon a good faith communication in
furtherance of … the right to free speech in direct connection with an issue
of public concern.” At that point, “the burden shifts to the plaintiff to show
‘with prima facie evidence a probability of prevailing on the claim.’ ”
Only the first part was at issue here.  An anti-SLAPP movant  “need only demonstrate that his or her conduct
falls within one of four statutorily defined categories of speech, rather than
address difficult questions of First Amendment law.”  One such category is: “[c]ommunication made in
direct connection with an issue of public interest in a place open to the
public or in a public forum … which is truthful or is made without knowledge
of its falsehood.”  The truthful/good
faith part was the problem here. Coker relied on his declaration that he bought
the lithographs from a bulk art supplier and never personally created any
copies of the artwork.  However, Sassone
clarified that his complaint was based on Coker’s representation of the
lithographs as originals. To take advantage of this category, “Coker would need
to provide evidence persuading this court that at the time he advertised and
sold the lithographs online, he believed that they were originals and, thus,
advertised them as such. Tellingly, Coker has made no such statement. Nor has
he provided this court with any evidence suggesting that he believed that the
lithographs were, in fact, originals.” Thus, Coker failed to make the requisite
showing.
In addition, Coker argued that his conduct was in direct
connection with an issue of public interest, “widespread access to creative
works.” However, Sassone wasn’t challenging “the mere dissemination of his
artwork, but Coker’s description of the counterfeit works as originals. In this
respect, Sassone acknowledges that had Coker copied Sassone’s works and sold
the copies while disclosing them as such, Sassone would have no basis for his
suit. We find this distinction imperative
in concluding that Coker’s conduct was not made in direct connection with an
issue of public interest” (emphasis added).
Under the governing law, which is statutory and not
constitutional, and which is guided by similar California law, (1) “public
interest” isn’t the same as mere curiosity; (2) a matter of public interest
should be “of concern to a substantial number of people”; (3) there should be “some
degree of closeness between the challenged statements and the asserted public
interest—the assertion of a broad and amorphous public interest is not
sufficient”; (4) the focus should be the public interest “rather than a mere
effort to gather ammunition for another round of private controversy”; and (5) communicating
something to a large number of people doesn’t alchemize it into a matter of public
interest.
Here, (3) was lacking, as Coker failed to demonstrate how
false advertising and the sale of counterfeit artwork was “sufficiently related
to the dissemination of creative works.” 
Stretching (4) out of its origin (to address the libel law scenario in
which people are saying nasty things back & forth), the court also found
that Coker failed to show that the focus of his conduct “was to increase access
to creative works or advance the free flow of information. Without evidence
suggesting otherwise, we conclude that his focus was to profit from the sale of
artwork, and that increased access to creative work was merely incidental.”  [This is very troubling standing alone: a lot
expressive activity, including online, is done for profit, and its content
could easily be called “incidental”—at the very least, this idea should be
rejected where a profit-seeking movant says that the content was deliberately chosen
as content that deserved dissemination, though Coker apparently didn’t do that
here.]  The conclusion was still limited:
“we cannot conclude that selling counterfeit artwork online, while advertising
it as original, is related to the asserted public interest of dissemination of
creative works.”
Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), was
not to the contrary. Maloney upheld
the grant of a media company’s anti-SLAPP motion after the company was sued for
distributing unlicensed photographs of NCAA student-athletes. The Ninth Circuit
held that the activity was in the public interest “because the photographs
memorialize cherished moments in NCAA sports history, and California defines
‘an issue of public interest’ broadly.” But Coker didn’t explain how sports memorabilia
related to art. And Maloney didn’t
justify extending the definition of “an issue of public interest” to include “the
advertisement and sale of counterfeit artwork as original.” Whether this was
expressive activity under the First Amendment was not relevant to the interpretation
of the anti-SLAPP act.

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