Attorney's Statement to the Press
*The following is Attorney William Romaine's statement to the press:
We have carefully and considerately reviewed the Los Angeles Superior Court’s decision to yet again deny Olivia Hussey and Leonard Whiting of their right to present to a jury their claim against Paramount Pictures for publishing nude photographs of them they allege were taken without consent during their minority. Our review of that trial court decision has persuaded us that an appeal is warranted. We conclude that the decision erroneously favored Paramount’s argument that, like a lead curtain, was intended to shield that alleged abuse from public scrutiny.
The argument they relied on and the one the court accepted to stifle the lawsuit appears to pervert—rather than advance—the essential purpose of California’s anti-SLAPP legislation.
In our view, Ms. Hussey’s and Mr. Whiting’s second suit and its equally summary dispatch by the Los Angeles County Superior Court provides a spectacular example of how the legislative intent behind the Anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation has been seriously eroded to the point that judicial broadening of its reach has essentially overcome its original purpose.
Anti-SLAPP was, by all accounts, intended to enhance the free speech rights of public interest organizations whose efforts to publish abuses of the public trust was being stymied by the well-funded corporate defendants they wanted to expose. Those wealthy enterprises were abusing their vastly superior financial position to institute frivolous suits against public interest organizations with a view to bankrupting them. Anti-SLAPP was designed to allow a public interest organization to quickly get rid of these intentionally disruptive suits and to make the disruptor pay the public interest organization’s legal fees incurred to do so.
As worthwhile a legislative purpose as that is generally, it cannot remain so when applied, as here, for the corrupt purpose as allowing an extremely well funded company like Paramount Pictures to stifle a suit exposing Paramount’s unauthorized use of non consensual nude photographs of minors to exploit those minors.
We have come to conclude, that the Los Angeles Superior Court unfortunately did exactly that by applying the anti-SLAPP law to protect Paramount from liability for allegedly re-releasing those nude photographs of the two minors in early 2023 without their consent. Ignoring the California Constitution’s protection of Hussey’s and Whiting’s right to a jury trial to establish their claim of non-consent, the Superior Court took it upon itself to accept Paramount’s contrived offer of something considerably less than “evidence” to find and rule that Hussey and Whiting had actually and perpetually consented to Paramount’s distribution of their nude minority photographs.
On that basis and in complete derogation of Hussey’s and Whiting’s right to a jury trial on the issue, the court granted Paramount’s special motion to strike the entire lawsuit under the anti-SLAPP legislation. We believe that this decision constitutes reversible error on the part of the Superior Court judge. We believe and base our appeal on the conceit that Paramount’s public exposure of these two minors in a sexually compromising scene was not protected as free speech under the anti-SLAPP legislation. We believe that the court’s ruling that Hussey and Whiting must, to avoid dismissal of their suit at its inception, prove that they had not consented to the release was contrary to well settled law.
Moreover, we believe that the ruling defies logic: one cannot prove a negative. All of the legal precedent we reviewed clearly holds that Hussey’s and Whiting’s consent would be a defense Paramount would have to persuade a jury of at trial on the basis of evidence it—not Hussey and Whiting—would have to present. Moreover, all of the legal precedent we reviewed clearly holds that the Superior Court has no jurisdiction to supplant the jury’s decision with its own. That is so, we determined, despite the anti-SLAPP law the court relied upon to make itself the judge and jury in this case.
We believe that the court’s ruling in favor of Paramount’s motion was anathema to unequivocal legal precedent restricting those kind of decisions to the jury and forbidding the judge to make. Therefore, in accordance with that very same anti-SLAPP law, we have now filed an immediate appeal—an extraordinary appeal that is specifically allowed to be filed even before final judgment has been entered in the case.
This appeal will have as its salutary purpose to test whether or not the protection of jury trials in civil cases under Article I, section 16 of the California Constitution as “. . .an inviolate right. . .” that “. . .shall be secured to all. . .” renders the anti-SLAPP legislation unconstitutional as applied in this case by this court. Hussey and Whiting hope that a just and likely favorable ruling by the appellate courts will result in Paramount finally being compelled to prove—or more likely be found to not have proven—their sole defense that the release of those nude minor’s photographs was with the permission of those whose lewd images are being distributed. Hussey and Whiting are adamant that they did not and do not consent to any release of those images and will insist, in their appeal, that their unequivocal constitutional right to have a jury decide that question on the evidence presented must not be compromised by a misuse of otherwise commendable legislation.
