Leah Manzari v. Associated Newspapers , 830 F.3d 881 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEAH MANZARI, PKA Danni Ashe, No. 14-55329
Plaintiff-Appellee,
D.C. No.
v. 2:13-cv-06830-
GW-PJW
ASSOCIATED NEWSPAPERS LTD.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted February 12, 2016
Pasadena, California
Filed July 25, 2016
Before: Andrew J. Kleinfeld, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge McKeown
2 MANZARI V. ASSOCIATED NEWSPAPERS
SUMMARY*
Defamation /California’s Anti-Strategic Lawsuit
Against Public Participation Statute
The panel affirmed the district court’s order denying the
Associated Newspapers Ltd.’s motion to strike a complaint
pursuant to California’s anti-Strategic Lawsuit Against Public
Participation statute, in an action alleging defamation by Leah
Manzari, a pioneer in the online adult entertainment industry
and famous under her professional name, Danni Ashe.
Manzari alleged that Associated News Ltd., in its online
tabloid newspaper, the Daily Mail Online, used a photograph
of her to convey the defamatory impression that she had
tested positive for HIV. The panel agreed with the district
court that, at this stage in the litigation, Manzari had
presented sufficient evidence to move forward with her claim
that Daily Mail Online employees acted with actual malice
when they published an article implying that Manzari was an
HIV-positive sex worker.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MANZARI V. ASSOCIATED NEWSPAPERS 3
COUNSEL
Katherine M. Bolger (argued), Levine Sullivan Koch &
Schulz, LLP, New York, New York; Louis P. Petrich,
Leopold, Petrich & Smith PC, Los Angeles, California; for
Defendant-Appellant.
Steven L. Weinberg (argued), Wein Law Group, LLP, Los
Angeles, California, for Plaintiff-Appellee.
4 MANZARI V. ASSOCIATED NEWSPAPERS
OPINION
MCKEOWN, Circuit Judge:
A picture is worth a thousand words. A photograph,
especially when coupled with text, can convey a powerful
message: in this case, a potentially defamatory one. Leah
Manzari, famous under her professional name, Danni Ashe,
for her groundbreaking work in monetizing online
pornography, claims that the Daily Mail Online, an online
news outlet, used a photograph of her to convey the
defamatory impression that she had tested positive for HIV.
Defamation claims, which arise out of state law, are
significantly cabined by the First Amendment, especially
when the plaintiff is a public figure, like Manzari. In order to
prevail, Manzari must show that the Daily Mail acted with
actual malice. Defamation by implication claims pose an
additional hurdle: Manzari must first show that the article is
reasonably understood to imply the defamatory statement,
and she must then show that the Daily Mail published the
article with knowledge of the false implication or reckless
disregard for the truth of what the article implied. This case
comes to us as an interlocutory appeal under California’s
anti-SLAPP statute. Cal. Civ. Proc. Code § 425.15. We
agree with the district court that, at this stage in the litigation,
Manzari has presented sufficient evidence to move forward
with her claim that the Daily Mail Online employees acted
with actual malice when they published the article implying
that Manzari was an HIV-positive sex worker.
MANZARI V. ASSOCIATED NEWSPAPERS 5
BACKGROUND
As we explain below, we state the facts, from the
pleadings and evidence presented, taken favorably to the
plaintiff. Manzari is a pioneer in the online adult
entertainment industry. Her website www.Danni.com, which
she designed and launched in 1995, began generating multi-
million dollar revenues in the early 2000s. During this time,
“Danni Ashe” was one of the most well-known and popular
soft-core porn actresses in the world, as well as a highly
successful entrepreneur, with one of the most visited websites
on the Web. She retired from the adult entertainment
industry in 2004 and sold www.Danni.com, but the website
remains active under that name.
Associated News Ltd. publishes the Daily Mail, a popular
United Kingdom-based tabloid newspaper, which also has an
online version known as the Daily Mail Online (collectively
the “Daily Mail”). In 2013, the Daily Mail Online ran an
article covering the shutdown of the Los Angeles-area porn
industry caused by a female performer testing positive for
HIV. The headline read: “PORN INDUSTRY SHUTS
DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE
PERFORMER’ TESTS POSITIVE FOR HIV.” After a few
lines of text, the article contained a picture of Manzari lying
suggestively across a bed with “In Bed With Danni” written
in neon lights behind her. Under her photograph was the
caption: “Moratorium: The porn industry in California was
shocked on Wednesday by the announcement that a
performer had tested HIV positive.” The article stated that
the actress was “new to the industry” and that “the performer
was not immediately identified.” Later in the article were
two other photographs, but not of Manzari. One photograph
appears to show a naked woman, whose face is not visible,
6 MANZARI V. ASSOCIATED NEWSPAPERS
leaning against a stripper pole. The other picture shows an
unidentified couple being photographed while lying on a
couch.
The beginning of the article appeared as follows; we have
redacted Manzari’s face:
MANZARI V. ASSOCIATED NEWSPAPERS 7
Immediately after the story was published, Manzari’s
attorney sent the Daily Mail Online a cease and desist letter
insisting that it remove Manzari’s photograph from the
article. The Daily Mail complied. According to Manzari, by
then the damage was done—the article had been syndicated
and “quickly spread across the globe via the Internet and
within minutes, could be seen as far as East Africa and
India.” Manzari provided examples of Google searches and
other search results revealing thumbnails that show only the
headline coupled with her photograph, without any
explanatory text.
Manzari brought a libel and false light suit against the
Daily Mail under California law, which she filed in federal
court under diversity jurisdiction. 28 U.S.C. § 1332(a)(2).
The complaint sought three million dollars in damages to
Manzari’s business and reputation. Manzari contends that the
juxtaposition of her image with the explosive headline and
caption conveyed the impression that she is the performer
who tested positive for HIV. Manzari’s claim that she does
not and has never had HIV is not contested. Instead, the
Daily Mail responds that the article made no such implication
and that, in any event, it did not intend to convey the
impression that the article was about Manzari, but instead
simply chose a stock photo to illustrate the article.
The article’s author, Daily Mail Online journalist James
Nye, claims that the name of the performer who tested
positive for HIV was unknown. To illustrate the article, Nye
asked the Daily Mail Online’s photo desk to supply him with
“some pictures representative of the pornographic film
industry that . . . contained no nudity.” He selected three
“stock” photographs, including the one of Manzari, that
“clearly conveyed the concept of the pornographic film
8 MANZARI V. ASSOCIATED NEWSPAPERS
industry, showing a camera near a woman on a bed in
lingerie.” Jack Forbes, the assistant photo editor who initially
selected the photographs from the Corbis Images database,
stated that he included the photograph of Manzari because it
was a “good, non-obscene photograph to illustrate an article
about the pornographic film industry.” According to
Manzari, the Corbis database included the following
information with the photograph: “Soft porn actress Danni
Ashe, founder of Danni.com, poses in front of a video camera
connected to the Internet in one of her studios in Los Angeles
in 2000,” although this information was not included in the
article.
The Daily Mail moved to strike Manzari’s complaint
under the California anti-Strategic Lawsuit Against Public
Participation statute (“anti-SLAPP”), Cal. Civ. Proc. Code
§ 425.16, on the ground that the defamation suit targeted the
news outlet’s protected exercise of free speech and that
Manzari could not show a probability of prevailing on the
merits of her claim. The California anti-SLAPP statute was
passed to combat “a disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional rights
of freedom of speech and petition for the redress of
grievances.” Id. § 425.16(a); see also id. § 425.16(b)(1) (“A
cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject
to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.”).
The Daily Mail argued that, as a public figure, Manzari
would be unable to prove that the news outlet had acted with
MANZARI V. ASSOCIATED NEWSPAPERS 9
actual malice when it published the article. The district court
denied the anti-SLAPP motion to strike, concluding that even
if Manzari were a public figure, “having considered the
totality of the choices and admissions made by the Mail
Online’s staff, . . . a jury could reasonably conclude that those
who created the Article intended to convey the
impression—known by them to be false—that Plaintiff tested
positive for HIV.”
ANALYSIS
This case arises from an interlocutory appeal of the
district court’s denial of the Daily Mail’s motion to strike.
Denials of California anti-SLAPP motions are appealable
orders because the statute operates as an immunity from suit,
rather than as a defense. DC Comics v. Pac. Pictures Corp.,
706 F.3d 1009, 1015 (9th Cir. 2013). Through the lense of
California’s anti-SLAPP statute, we review de novo
Manzari’s defamation claim. See Makaeff v. Trump Univ.,
LLC, 715 F.3d 254, 261 (9th Cir. 2013).
I. ANTI-SLAPP
California’s anti-SLAPP statute provides a burden-
shifting mechanism to weed out “lawsuits that ‘masquerade
as ordinary lawsuits’ but are brought to deter common
citizens from exercising their political or legal rights or to
punish them for doing so.” Batzel v. Smith, 333 F.3d 1018,
1024 (9th Cir. 2003) (quoting Wilcox v. Superior Court,
27 Cal. App. 4th 809, 816 (1994)). In Makaeff, we explained:
To prevail on an anti-SLAPP motion, the
moving defendant must make a prima facie
showing that the plaintiff’s suit arises from an
10 MANZARI V. ASSOCIATED NEWSPAPERS
act in furtherance of the defendant's
constitutional right to free speech. . . . The
burden then shifts to the plaintiff, . . . to
establish a reasonable probability that it will
prevail on its claim in order for that claim to
survive dismissal. Cal. Civ. Proc. Code
§ 425.16(b)(1); . . . . Under this standard, the
claim should be dismissed if the plaintiff
presents an insufficient legal basis for it, or if,
on the basis of the facts shown by the
plaintiff, “no reasonable jury could find for
the plaintiff.” Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 840 (9th Cir. 2001)
(citation and internal quotation marks
omitted).
715 F.3d at 261 (first citation omitted).
Having published an article on a topic of public interest
(i.e. the public health aspects and safety of a large California
industry), the Daily Mail easily satisfied its initial burden.
There is no serious dispute that the libel and false light suit
targeted speech protected by the anti-SLAPP statute. Cal.
Civ. Proc. Code § 425.16(e)(3) (including “any written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest”).
The burden thus shifts to Manzari to show a reasonable
probability of prevailing on the merits.1 “Reasonable
1
Because Manzari’s libel and false light claims rely on the same set of
facts and require her to prove the same elements relevant to this appeal,
we consider the two claims collectively. See Solano v. Playgirl, Inc.,
MANZARI V. ASSOCIATED NEWSPAPERS 11
probability in the anti-SLAPP statute has a specialized
meaning. The statute requires only a minimum level of legal
sufficiency and triability. Indeed, the second step of the anti-
SLAPP inquiry is often called the minimal merit prong.”
Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 598 (9th Cir.
2010) (internal quotation marks and citations omitted). See
Metabolife Int’l, Inc., 264 F.3d at 840 (“[A] defendant’s anti-
SLAPP motion should be granted when a plaintiff presents an
insufficient legal basis for the claims or ‘when no evidence of
sufficient substantiality exists to support a judgment for the
plaintiff.’” (citations omitted)).
California courts have repeatedly emphasized that “[o]nly
a cause of action that lacks even minimal merit constitutes a
SLAPP.” Overstock.com, Inc. v. Gradient Analytics, Inc.,
61 Cal. Rptr. 3d 29, 38 (Ct. App. 2007) (internal quotation
marks and citations omitted). “A plaintiff is not required ‘to
prove the specified claim to the trial court’; rather, so as to
not deprive the plaintiff of a jury trial, the appropriate inquiry
is whether the plaintiff has stated and substantiated a legally
sufficient claim.” Mann v. Quality Old Time Serv., Inc.,
15 Cal. Rptr. 3d 215, 223 (Ct. App. 2004) (citations omitted)
(emphasis in original). To determine whether a plaintiff has
substantiated a legally sufficient claim, courts look to the
pleadings and affidavits presented by both parties, but courts
“do not weigh credibility, nor do [they] evaluate the weight
of the evidence. Instead, [courts] accept as true all evidence
favorable to the plaintiff and assess the defendant’s evidence
only to determine if it defeats the plaintiff’s submission as a
matter of law.” Overstock.com, 61 Cal. Rptr. 3d at 38.
292 F.3d 1078, 1083 n.2 (9th Cir. 2002) (treating California libel and false
light claims as substantially equivalent).
12 MANZARI V. ASSOCIATED NEWSPAPERS
II. PUBLIC FIGURE
The threshold question that frames our defamation
analysis is a legal one. Whether an individual is a public
figure is a question of law that must be assessed through a
totality of the circumstances. See Reader’s Digest Ass’n v.
Superior Court, 690 P.2d 610, 614–15 (Cal. 1984). As the
Supreme Court articulated in Gertz v. Robert Welch, Inc.,
“[i]n some instances an individual may achieve such
pervasive fame or notoriety that he becomes a public figure
for all purposes and in all contexts. More commonly, an
individual voluntarily injects himself or is drawn into a
particular public controversy and thereby becomes a public
figure for a limited range of issues.” 418 U.S. 323, 351
(1974). Even before the Supreme Court’s public figure
analysis, we observed that public figures for defamation
purposes include, “artists, athletes, business people,
dilettantes, anyone who is famous or infamous because of
who he is or what he has done.” Cepeda v. Cowles
Magazines & Broad., Inc., 392 F.2d 417, 419 (9th Cir. 1968).
In earlier cases we have attributed public figure status to
individuals of comparable (or even less) fame than Manzari.
See Solano, 292 F.3d at 1081 (television actor on a popular
show was a public figure); Leidholdt v. L.F.P. Inc, 860 F.2d
890, 893 (9th Cir. 1988) (leader in the anti-pornography
movement, who had participated in numerous news article
and public debates on the topic of pornography, was a public
figure); Carafano v. Metrosplash.com Inc., 207 F. Supp. 2d
1055, 1071–72 (C.D. Cal. 2002) aff’d on other grounds,
339 F.3d 1119 (9th Cir. 2003) (television actress with a
popular fan website was a general purpose public figure).
MANZARI V. ASSOCIATED NEWSPAPERS 13
Manzari’s celebrity in the porn world might mean that she
is less of a household name than stars in other sectors of the
entertainment industry, but that does not make her fame any
less pervasive. The Daily Mail presented extensive support
for its position that Manzari is a public figure, including
interviews with Manzari (in her persona as “Danni Ashe”)
and news coverage related to her considerable success
performing in and marketing online soft-core porn. Among
many other new sources reporting on Manzari’s business and
career, The Boston Globe called Danni Ashe a poster girl for
the flourishing online pornography industry, The Observer
called her “the first cyberporn millionairess,” and The San
Francisco Chronicle noted that by 1999 Danni’s Hard Drive
had more than 27,000 paying subscribers. In an interview
Manzari gave to the Wall Street Journal, she stated that her
website was originally created as an extension of her “fan
club” and, as she told ABCNews.com, “[p]eople are interested
in adult entertainment. They always have and they always
will be.”
The complaint itself states that Danni Ashe is considered
“the most downloaded woman on the Internet” and that her
image has “graced the cover of the Wall Street Journal.” In
the late 1990s, Manzari competed against actress Cindy
Margolis to win the Guinness World Record for most
downloaded woman on the Internet and, according to both
ABC News and a press release from her own website, Manzari
attained the record with 841, 271, 545 downloads. In an
independent study conducted in 2000, Manzari was found to
have the most popular site run by and featuring women on the
Web, far surpassing the amount of Internet traffic for
websites of such ubiquitous celebrities as Martha Stewart and
Oprah Winfrey. She has starred in dozens of adult films, and,
in addition to giving numerous interviews, Manzari also
14 MANZARI V. ASSOCIATED NEWSPAPERS
testified before Congress during the passage of the Child
Online Protection Act in 2000. With millions of Internet
downloads, extensive publicity, and broad public exposure,
Manzari undoubtedly qualifies as a public figure.
III. REASONABLE PROBABILITY OF PREVAILING ON THE
MERITS
To prevail, Manzari will eventually need to present clear
and convincing evidence that the Daily Mail article contained
a defamatory implication and that the Daily Mail acted with
“actual malice” when it published the article with her
photograph. See Kaelin v. Globe Comm. Corp., 162 F.3d
1036, 1039 (9th Cir. 1998) (“A public figure in a defamation
case cannot recover unless he proves by clear and convincing
evidence that the defendant published the defamatory
statement with actual malice, i.e., with knowledge that it was
false or with reckless disregard of whether it was false or
not.” (internal quotation marks and citations omitted).2
However, at the anti-SLAPP stage, “[a] public figure who
sues for defamation must establish a probability that he or she
can produce such clear and convincing evidence.”
Overstock.com, 61 Cal. Rptr. 3d at 38 (emphasis added); see
also Burrill v. Nair, 158 Cal. Rptr. 3d 332, 357 (Ct. App.
2013) (“[W]e must determine [at the anti-SLAPP stage]
whether [the Plaintiff] has made a sufficient prima facie
showing of facts to sustain her burden of demonstrating a
high probability that [the Defendant] published the
defamatory statements with knowledge of their falsity or
while entertaining serious doubts as to their truth.”).
2
It is uncontested that Manzari was not the actual subject of the article
and the Daily Mail has not presented truth as a defense.
MANZARI V. ASSOCIATED NEWSPAPERS 15
At this juncture in the proceedings, Manzari is not
required to “to prove the specified claim,” Mann, 15 Cal.
Rptr. 3d at 223 (internal quotation marks omitted). She need
only convince us that her claim has “minimal merit,” and she
has done so. Overstock.com, 61 Cal. Rptr. 3d at 38. We
agree that Manzari has presented sufficient evidence—both
as to the article’s defamatory implication and the Daily
Mail’s actual malice—to survive the anti-SLAPP motion to
strike.
A. DEFAMATORY IMPLICATION
The Daily Mail did not affirmatively state that Manzari
was the performer with HIV, but the implication and the
conclusion were neither subtle nor difficult to divine. The
bold headline and its content, juxtaposed with her photograph
and yet another caption under her picture that said the
industry was “shocked” that a “performer had tested HIV
positive,” was sufficient for a reasonable reader to infer that
Manzari was the performer who had tested positive for HIV.
California law recognizes that a defamatory statement can
be either “expressly stated or implied.” Forsher v. Bugliosi,
608 P.2d 716, 721 (Cal. 1980) (internal quotation marks and
citations omitted). Thus:
“If the defendant juxtaposes a series of facts
so as to imply a defamatory connection
between them, or otherwise creates a
defamatory implication, he may be held
responsible for the defamatory implication,
even though the particular facts are correct.”
Weller v. Am. Broad. Co., 283 Cal. Rptr. 644,
652 n.10 (Ct. App. 1991) (quoting Prosser,
16 MANZARI V. ASSOCIATED NEWSPAPERS
The Law of Torts § 116 (5th ed. Supp. 1988))
(internal alterations omitted). To state a claim
for implied defamation, however, the
published statement must reasonably “be
understood as implying the alleged
defamatory content.” Id. at 651 n.8.
Price v. Stossel, 620 F.3d 992, 1003 (9th Cir. 2010).
Of course we “must examine the totality of the
circumstances of the publication.” Kaelin, 162 F.3d at 1041.
“[A] defamatory meaning must be found, if at all, in a reading
of the publication as a whole.” Id. at 1040. The Daily Mail
suggests this case is different from the classic defamation by
implication case because it did not make any statement by
including a stock photograph selected as a “good, non-
obscene photograph to illustrate the article.” This
disingenuous approach overlooks the fact that a photograph
itself can convey both an implicit and an explicit message and
that the headline, caption and photograph taken together are
also a statement. As the Supreme Court observed in a similar
context, “words and punctuation express meaning. Meaning
is the life of language.” Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 517 (1991); see also id. at 521(concluding that misquotations of a public figure, implying he
had stated things he did not say, raised a triable jury
question). Likewise, a visual depiction can be the life of
expression.
Considering the article as a whole, we conclude that a
reasonable reader could infer that the article is about Manzari.
The headline begins “Porn industry shuts down after ‘female
performer’ tests positive for HIV,” which is followed by just
four sentences before her photograph. The picture includes
MANZARI V. ASSOCIATED NEWSPAPERS 17
her professional name “Danni” in neon lights behind her and
the bold caption below her reads “Moratorium: The porn
industry in California was shocked on Wednesday by the
announcement that a performer had tested HIV positive.”
The vague references to the unidentified “female performer”
do not clarify that the article is not about Manzari,
particularly given the size and placement of the photographs
and text.
The clarity of the implication is all the more apparent
given how news spreads across the Internet. As Daily Mail
Online—a leader and professional in online
publishing—would no doubt be aware, links to news articles
frequently appear in online search engines or other
compilations with only a headline and photograph connected
to that story. Publication of the first story was just a platform
for inevitable further online dissemination. Manzari
introduced multiple screen-shots from the Internet revealing
how the article appeared in a number of search engines and
other on-line news platforms. These images spread rapidly
across the Web once the Daily Mail Online published the
article, and, in example after example, the posting is
truncated with the headline followed directly by the “Danni”
photograph, sometimes including a caption, but without the
rest of the article to provide any further context for the image.
The Daily Mail contends that the text of the
article—specifically its assertion that the performer in
question was new to the industry and had not been
identified—is logically inconsistent with the inference that
the actress in question was Manzari. It underscores that the
explanatory text appears on the same page as the headline and
the photograph of Manzari, such that a reasonable reader
would realize that she was not the woman who had tested
18 MANZARI V. ASSOCIATED NEWSPAPERS
positive for HIV. In this regard, the Kaelin case is
instructive. There we held that: “headlines are not irrelevant,
extraneous, or liability-free zones[, t]hey are essential
elements of a publication,” and that false insinuations in a
headline on the cover page were not cured or negated by
explanatory language later in the magazine because “[a]
reasonable juror could conclude that the Kaelin article was
too far removed from the cover headline to have the salutary
effect that Globe claims.” 162 F.3d at 1040–41; see also
Davis v. Hearst, 160 Cal. 143, 187 (1911) (holding that an
article’s explanatory text did not negate the defamatory
nature of the headline).
The same is true here. A passing reference buried in the
article can hardly cure the obvious message conveyed by the
headline, photo and caption. Manzari has presented sufficient
evidence to carry her burden of showing a reasonable
probability of success on the merits regarding the first prong
of her defamation claim.
B. ACTUAL MALICE
The Supreme Court has provided a framework through
which we assess whether a public figure can move forward
with a defamation claim. In Masson, the Court explained that
“actual malice” presents a question of fact: “The
constitutional question we must consider here is whether, in
the framework of a summary judgment motion, the evidence
suffices to show that respondents acted with the requisite
knowledge of falsity or reckless disregard as to truth or
falsity.” 501 U.S. at 513. The Court concluded that “[t]he
record contains substantial . . . evidence, . . . which, in a light
most favorable to petitioner, would support a jury
determination under a clear and convincing standard that [the
MANZARI V. ASSOCIATED NEWSPAPERS 19
author acted] deliberately or recklessly.” Id. at 521.
Although the author “contests petitioner’s allegations, . . .
only a trial on the merits will resolve the factual dispute. . . .
[A]t this stage, the evidence creates a jury question whether
[the author] published the statements with knowledge or
reckless disregard of the alterations.” Id.In implied defamation cases, “where a statement . . .
reasonably implies false and defamatory facts regarding
public figures or officials, those individuals must show that
such statements were made with knowledge of their false
implications or with reckless disregard of their truth.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
“[R]eckless conduct is not measured by whether a reasonably
prudent man would have published, or would have
investigated before publishing. There must be sufficient
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.”
Time, Inc. v. Pape, 401 U.S. 279, 291–92 (1971). This
standard ensures that publishers are not held liable for
unintentional misstatements or implications, which public
figures later claim are defamatory. See Howard v. Antilla,
294 F.3d 244, 252 (1st Cir. 2002) (“[I]mplications perceived
in a statement but not intended by the speaker cannot be
actionable in public official or public figure cases.”) (quoting
Robert D. Sack, Libel, Slander, and Related Problems § 5.5.1,
at 5–64 (3d ed. 1999)).3
3
Our sister circuits have also adopted a standard of subjective awareness
of the implication. See Compuware Corp. v. Moody’s Inv’rs Servs., Inc.,
499 F.3d 520, 529 (6th Cir. 2007) (defendant must have intended or knew
of the implied meaning); Levan v. Capital Cities/ABC, Inc., 190 F.3d
1230, 1241 (11th Cir. 1999) (to show actual malice in an implied
defamation case, the plaintiff must show that the defendant “entertained
serious doubts” that the “underlying thrust” of the publication was true
20 MANZARI V. ASSOCIATED NEWSPAPERS
Defamation by implication against public figures is an
area of law “fraught with subtle complexities.” White,
909 F.2d at 518. We have not always charted a clear path
when applying the actual malice test to implied defamatory
content. Compare Hoffman v. Capital Cities/ABC, Inc.,
255 F.3d 1180, 1187 (9th Cir. 2001) (“evidence must clearly
and convincingly demonstrate that [the publisher] knew (or
purposefully avoided knowing) that the photograph would
mislead its readers”), with Newton v. Nat’l Broad. Co.,
930 F.2d 662, 680–81 (9th Cir. 1990) (holding that failure to
foresee the possible implications of a statement does not give
rise to liability against a public figure, rather the relevant
inquiry is one of subjective intent) and, Dodds v. Am. Broad.
Co., 145 F.3d 1053, 1063–64 (9th Cir. 1998) (“In order to
prevail on his claim that ABC’s direct statements impliedly
defamed him . . . [the plaintiff] must show . . . that ABC
intended to convey the defamatory impression.” (internal
quotation marks and citations omitted)). Although our cases
have referenced actual malice with some variation in
language, at its core our precedent mirrors the Supreme
Court’s requirements: knowledge of falsity or reckless
disregard for the truth.
(internal quotation marks omitted)); White v. Fraternal Order of Police,
909 F.2d 512, 520 (D.C. Cir. 1990) (defamation by implication possible
where “the communication, by the particular manner or language in which
the true facts are conveyed, supplies additional, affirmative evidence
suggesting that the defendant intends or endorses the defamatory
inference”); Saenz v. Playboy Enter., Inc., 841 F.2d 1309, 1318 (7th Cir.
1988) (“[W]here the plaintiff is claiming defamation by innuendo, he also
must show with clear and convincing evidence that the defendants
intended or knew of the implications that the plaintiff is attempting to
draw from the allegedly defamatory material.”).
MANZARI V. ASSOCIATED NEWSPAPERS 21
This case rests on the “reckless disregard” prong of actual
malice. Recognizing that California law requires only
“minimal merit” to withstand initial dismissal under the anti-
SLAPP statute, we hold that Manzari has raised sufficient
factual questions for a jury to conclude that the Daily Mail
Online acted with reckless disregard for the defamatory
implication in its article on the Los Angeles porn industry
shut-down. Manzari’s evidence is sufficient to support her
claim that the Daily Mail Online placed her photograph in the
article, juxtaposed with the incendiary headline and caption,
“[knowing or acting] in reckless disregard of whether its
words would be interpreted by the average reader as a false
statement of fact.” Solano, 292 F.3d at 1084 (internal
citations, alterations, and quotation marks omitted).
The undisputed message that the article is about
Manzari—apparent from the headline, photograph, and
caption—supports the conclusion that the Daily Mail Online
acted with reckless disregard. Though it is not enough that
the defamatory implication “should have been foreseen” by
the Daily Mail when it juxtaposed the different elements of
the article, see Newton, 930 F.2d at 680, or that an “ordinary
viewer would have perceived the implication,” Dodds,
145 F.3d at 1064, here there is evidence that Daily Mail
employees actively removed key contextual information from
the “Danni Ashe” photograph as it was presented in the
Corbis database, which stated: “Soft porn actress Danni Ashe,
founder of Danni.com, poses in front of a video camera
connected to the Internet in one of her studios in Los Angeles
in 2000.” Instead, they replaced this information with the
caption: “Moratorium: The porn industry in California was
shocked on Wednesday by the announcement that a
performer had tested HIV positive.” The publishers also
failed to include any explanation or disclaimer adjacent to the
22 MANZARI V. ASSOCIATED NEWSPAPERS
“Danni” photograph, which would have informed readers that
she was not the subject of the article. See Eastwood,
123 F.3d at 1253, 1256 (observing that “[a]s we have yet to
see a defendant who admits to entertaining serious subjective
doubt about the authenticity of an article it published, we
must be guided by circumstantial evidence,” and concluding
that the “totality of the [editors’] choices” supported a finding
of actual malice).
It is no surprise that the Daily Mail employees deny that
they understood or intended to make any implication about
Manzari. While a finding that the publisher’s testimony lacks
credibility cannot on its own sustain a finding of subjective
intent, Newton, 930 F.2d at 680, the denial must be read in
the context of other evidence. If all a publisher needed to do
was to deny the allegation, all implied defamation suits would
be dead on arrival. If, for instance, a newspaper ran the
headline: “High Profile Figure Accused of Murder”
alongside a photograph of the Mayor of New York, or
“Industry Shocked that Grocery Sprayed Veggies with
Pesticide” alongside an image of a nationally-known grocery
chain, the publishers would be hard-pressed to plausibly
claim that they had simply selected a “stock” photograph.
The same holds true for a story about the pornography
industry, featuring a picture of a world-famous pornographic
actress with her name written in neon lights behind her.4 This
sort of willful blindness cannot immunize publishers where
they act with reckless disregard for the truth or falsity of the
implication they are making. Manzari meets the “minimal
merit” threshold to avoid outright dismissal of her complaint.
4
One need only look to the Daily Mail’s own evidence of Manzari’s
public figure status to confirm the ubiquity of her image and her identity.
Her image can hardly be relegated to the status of a “stock” photograph.
MANZARI V. ASSOCIATED NEWSPAPERS 23
CONCLUSION
At the anti-SLAPP stage, Manzari has carried her burden
of “stat[ing] and substantiat[ing] a legally sufficient claim.”
Mann, 15 Cal. Rptr. 3d at 223. The district court properly
denied the Daily Mail’s motion to strike Manzari’s complaint.
AFFIRMED.