Judge applies new anti-SLAPP law in Michael Moore case

Rosemary Lane | Privacy | Feature | September 8, 2010

A federal judge in Washington state dismissed the privacy claims in a lawsuit filed against filmmaker Michael Moore regarding his 2007 health care documentary, “Sicko,” in the first application of the state’s revised anti-SLAPP law.

Federal Magistrate Judge Karen Strombom in Tacoma threw out plaintiff Ken Aronson’s claims of invasion of privacy and misappropriation of likeness last week. Aronson's voice and image appeared in a 71-second clip in the Academy Award-nominated documentary.

Strombom cited Washington’s enhanced anti-SLAPP laws, which are designed to provide for the prompt dismissal of meritless lawsuits -- or "strategic lawsuits against public participation" and the recovery of attorney’s fees. The revisions went into effect June 10.

The lawsuit originated from Aronson’s 1997 footage of his friend Eric Turnbow in London. Aronson filmed Turnbow walking across Abbey Road in London on his hands, falling and injuring his shoulder, and then receiving treatment at a British hospital. While filming, Aronson is heard singing his own song, “Oh England, Here We Go.”

In 2006, Turnbow submitted the footage to Moore, who had requested video showing medical experiences in foreign countries. The tape was delivered without Aronson’s knowledge or approval, but Turnbow signed a waiver for the footage to be used in "Sicko."

Although copyright issues are still at stake, Washington’s anti-SLAPP law provides that Aronson must pay $10,000 in addition to Moore’s attorney fees, according to Bruce Johnson, Moore’s attorney.

Johnson, a partner at the law firm Davis Wright Tremaine, said the revisions in the law are beneficial for reporters and media who are sued for defamation and privacy invasions because they enable judges to dismiss lawsuits quickly and cheaply.

“I feel very strongly [that] people exercising the First Amendment shouldn’t have to go bankrupt,” Johnson said. “This certainly shows the value of having a good, solid anti-SLAPP law in place, which helps to promote the exercise of free speech rights.”

Johnson drafted the revisions, which were based on California’s anti-SLAPP law provisions, last December. The revisions are aimed at protecting those engaging in public free speech.

Washington state legislators passed the country's first anti-SLAPP law in 1989. The bill was enacted to “encourage the reporting of potential wrongdoing to governmental entities by protecting reporting parties from the threat of retaliatory lawsuits,” according to court documents. However, the bill was limited to statements made directly to government officials.

Currently, 28 states have anti-SLAPP laws in place, though many follow Washington’s original government-only statutes.

Although no federal bill in in place, Rep. Steve Cohen, D-Tenn., introduced an anti-SLAPP bill in December 2009. The bill has been referred to a House subcommittee.