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.