Brodeur v. Atlas Entertainment Inc.

Appellate court reverses denial of anti-SLAPP motion brought by producers and distributors of “American Hustle,” holding that film dialogue regarding environmental author’s statement about microwave ovens was in connection with issue of public interest.

The critically acclaimed 2013 film “American Hustle,” directed by David O. Russell, is a dark comedy set in 1978. The film presents a farcical perspective of 1970s culture and its characters, among them the “slightly unhinged” housewife Rosalyn Rosenfeld, played by Jennifer Lawrence, who becomes embroiled in the Abscam FBI sting operation. In one scene, Lawrence’s character causes a microwave oven to explode after heating a container of food covered in tin foil and remarks to her husband that she read in a magazine article written by plaintiff Paul Brodeur that a microwave “takes all of the nutrition out of our food.” Brodeur, a well-known environmental author who wrote the 1977 book The Zapping of America: Microwaves, Their Deadly Risk, and the Coverup, sued Atlas Entertainment Inc., Annapurna Productions LLC and Columbia Pictures Industries Inc., the film’s producers and distributors. Brodeur asserted causes of action for libel, defamation, slander and false light, alleging that he never made the statement attributed to him in the film, and that by misquoting him, defendants suggested that Brodeur had made a scientifically unsupportable statement. Defendants filed an anti-SLAPP motion to strike Brodeur’s complaint, which the trial court denied. The defendants appealed and the appellate court reversed.

The appellate court first held that the statements by Lawrence’s character were in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest. According to the appellate court, it is beyond dispute that motion pictures involve free speech and that the term “public interest” should be construed broadly to encompass “any issue in which the public is interested.” The public interest in the statements at issue was manifold. Brodeur is a prolific, well-known author and a public figure, and his expressed views on microwave ovens and their hazards were plainly a matter of public interest in the 1970s. Furthermore, the appellate court held that the broader subject of the film — Abscam and the culture of the 1970s — are matters of public interest. It rejected Brodeur’s contention that the statement attributed to him had “no bearing” on or “connection” to the film’s depiction of American culture during the 1970s. Accordingly, the appellate court concluded that “a farcical scene about microwave ovens — clearly emanating from matters in which the public was interested during the relevant decade — is . . . protected activity within the meaning of the anti-SLAPP statute.”

The appellate court distinguished the 2007 case of Dyer v. Childress, in which a state appellate court denied an anti-SLAPP motion arising out of a defamation claim based on the plaintiff’s unflattering portrayal in the 1994 film “Reality Bites.” The plaintiff in Dyer, a classmate of the film’s screenwriter, was a private figure who, unlike Brodeur, did not voluntarily thrust himself into a discussion of public topics and was not connected to any discernible public discussion, the appellate court noted. Furthermore, the Dyer court did not address whether there was any public interest in the creative process underlying the production of the film. The appellate court instead looked to Tamkin v. CBS Broadcasting, Inc., in which the court in 2011 granted an anti-SLAPP motion arising out of the use of certain private figures’ names in a draft script for an episode of the television program “CSI.” The Tamkin court held that there was a public interest in the writing, casting and broadcasting of the episode, as well as a connection between the use of plaintiffs’ names and the creative process underlying the episode. As in Tamkin, the appellate court declined to “dissect the creative process” underlying the production of “American Hustle.”

In the second step of the anti-SLAPP analysis, the appellate court held that Brodeur did not produce any evidence demonstrating a probability of prevailing on his defamation and other claims. According to the appellate court, Brodeur failed to demonstrate that he had never written an article or otherwise declared that a microwave oven “takes all the nutrition out of food.” The evidence that Brodeur did produce, a 1978 interview with People magazine, did not indicate that Brodeur either did or did not make the statement that Lawrence’s character attributes to him, the appellate court pointed out. It also deemed irrelevant current documentation from the Food and Drug Administration indicating that the statement is provably false, as it did not indicate whether Brodeur made such a statement in the 1970s and, in any event, did not indicate the state of understanding regarding microwave ovens in the 1970s.

Finally, the appellate court held that the statement by Lawrence’s character was not reasonably susceptible of a defamatory meaning, in light of the nature of her character, as well as the general “farcical” tenor of the film and the scene at issue. The character who utters the allegedly defamatory statement is portrayed throughout the movie as “slightly unhinged” and “a font of misinformation,” it notes, adding, “We doubt any audience member would perceive any of Rosalyn’s dialogue as assertions of objective fact.”

Summary prepared by Jonathan Zavin and Frank D’Angelo