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On June 13, the New York Court of Appeals issued a ruling in Gottwald v. Sebert that Gottwald (aka, Dr. Luke) is a limited purpose public figure in the defamation case brought by Dr. Luke against singer and songwriter Kesha Rose Sebert (aka, Kesha). In 2014, Dr. Luke sued Kesha for defamation after she accused him of sexually assaulting her. What followed was years of litigation around the issue of whether Dr. Luke is considered a public figure. In March 2023, the News/Media Alliance joined an amicus brief with 28 other media organizations, filed by RCFP in the New York Court of Appeals, arguing that Dr. Luke is a limited purpose public figure. The court agreed, holding that “Dr. Luke is a limited public figure who must prove by clear and convincing evidence that [Kesha] acted with actual malice.” The Alliance recognizes the importance of cases that deal with the scope of who is considered a public figure, as these rulings can have important implications for journalists.

The court also ruled on the retroactivity of amendments made to New York’s anti-SLAPP statute, which extend the protections to a broader class of individuals. The court held that while the amendments applied retroactively to the pending case, the claims for costs, attorney’s fees and damages only applied as of the effective date of the amendments, rather than the commencement date of the suit. Read more.

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On September 16, the News Media Alliance joined the Reporters Committee’s amicus brief arguing for the court to preserve fees shifting provisions for prevailing parties in public records laws. In Gannett v. Township of Neptune, the Asbury Park Press sued the township after they were denied access to internal records about a former police sergeant who murdered his ex-wife with his service revolver. While both the lower court and the appellate court agreed that disclosure of the records was necessary under common law, the appellate court did not award fees. The Reporters Committee argues that the court should award fees for the successful challenge of the records denial. The brief explains “[b]y ensuring that prevailing records requestors can recover attorney’s fees when they successfully vindicate their right to access public records, mandatory fee-shifting eliminates financial disincentives to pursuing public records litigation, and encourages government agencies not to improperly deny or unnecessarily delay making records available to the public.” The Alliance supports open records laws that give journalists and the public access to critical information as well as the fee provisions that appropriately compensate them for improper government denials. 

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On July 29, the News/Media Alliance signed on to the Reporters Committee’s amicus brief arguing for strong anti-SLAPP protections. In Stabosz v. Friedman, Stabosz was sued for defamation and filed an anti-SLAPP motion to dismiss the lawsuit. Anti-SLAPP motions give defendants an early motion to dismiss frivolous cases where they are being sued for participating in constitutionally protected First Amendment activity. The lower court denied the defendant’s anti-SLAPP motion, even though the plaintiff provided no evidence of actual malice. The Reporters Committee filed an amicus brief in support of Stabosz arguing that a plaintiff is required to proffer evidence of actual malice in order to survive an anti-SLAPP motion and asks the appeals court to reverse and remand the lower court’s ruling on the anti-SLAPP motion. The Alliance continues to support robust anti-SLAPP laws that provide pivotal protections for news publishers. Read more.

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On June 17, the News Media Alliance, together with the Authors Guild and others, submitted an amicus brief with the Supreme Court in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith. The case concerns a photograph of the singer/songwriter Prince, taken by Goldsmith in 1981, that was later used by Warhol to create a series of unauthorized artworks. Goldsmith found out about the works following Prince’s death in 2016. The Andy Warhol Foundation subsequently filed a suit for declaratory judgment that the works were not infringing, while Goldsmith filed a counterclaim for infringement. Earlier, the U.S. Court of Appeals for the Second Circuit found for Goldsmith, holding that Warhol’s works were not fair use. The Warhol Foundation appealed to the Supreme Court, which granted certiorari with regards to the “transformative use” test under the first fair use factor. In its brief, filed in support of neither party, the Alliance notes the delicate balance between authors’ right to create derivative works and the fair use doctrine, noting that publishers often rely on both. Arguing that the Second Circuit analyzed the issue largely correctly, the brief discusses how an overly broad definition of “transformative” could threaten the derivative work right and notes the importance of considering how much the secondary work’s value derives from the entertainment or aesthetic value of the original work in certain cases. The brief also emphasizes the importance of analyzing all fair use factors together, instead of overly relying on part of one factor. Read the Alliance’s amicus brief here.

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On May 19, a New York appeals court dismissed a defamation claim in Kurland v. Glassdoor. Kurland sued Glassdoor based on an anonymous bad review of Kurland’s company on Glassdoor’s website. Glassdoor filed an anti-SLAPP motion in the case. The Alliance previously joined the Reporters Committee amicus brief in the case, arguing for strong anti-SLAPP protections for news publishers. While the court dismissed the defamation claim, the court used a motion to dismiss rather than the anti-SLAPP law, holding that New York’s anti-SLAPP law does not apply retroactively. At the same time, the New York legislature is working to clarify that the law does apply retroactively by passing an amendment. Read more.

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On January 25, the Alliance signed on to the Reporters Committee brief filed in the Supreme Court of the United States. In Egbert v. Boule, a citizen is suing a federal agent for violations of his First and Fourth Amendment rights. At issue is whether there is a right to sue federal officers for constitutional violations—specifically, First Amendment violations. In Bivens, a 1971 Supreme Court case, the Court recognized the right to sue for damages for Fourth Amendment violations, later expanded to include Fifth and Eighth Amendment violations. The Ninth Circuit found that there was a right to recover from federal officers who violated First Amendment rights, and the federal officer appealed. The amicus brief argues that First Amendment damages should also be recoverable under Bivens, especially in light of the recent attacks on the press by law enforcement. The Supreme Court granted cert in the case, and oral arguments are scheduled for March 2nd of this year.

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