If Baldoni's NYT suit circumvents Anti-SLAPP, are small outlets at risk?

Actor and director Justin Baldoni's $250 million libel lawsuit against the New York Times is not likely to hurt the paper but could have a chilling effect on smaller outlets and independent journalists that don't have the financial resources for a protracted legal skirmish, legal experts commented Thursday regarding the latest development in a dispute that began with actress Blake Lively filing a state civil rights complaint against Baldoni.

"If Justin Baldoni gets past the Anti-SLAPP statute, I'm concerned about what it says for other investigative journalists. The Times is going to be OK," said Michael M. Epstein, the director of Southwestern Law School's Entertainment and Media Law Concentration.

The professor noted that California's Anti-SLAPP statute allows for mixed conduct rulings, that is, some of the speech at issue could be protected but some may not be.

"The filing of the Civil Rights Department claim is an easy call. Less clear to me is the allegation of selective publication of this trove of texts," Epstein said.

"I think the issue is, how do you handle all this information? Should Baldoni have the right to do discovery on that issue? If that is the case, it would mean potentially protracted litigation. And I don't know if that's the shape of things to come in the user-distribution age," Epstein continued.

Baldoni sued the New York Times in Los Angeles County Superior Court on Tuesday. The 85-page complaint claims the paper worked in concert with Lively in its coverage of her allegations of misconduct against him on the set of "It Ends With Us." The article titled "'We Can Bury Anyone': Inside a Hollywood Smear Machine" was published Dec. 21. The lawsuit is against the Times but also focuses on Lively, who is not a defendant.

Lively filed an administrative complaint against Baldoni with the California Civil Rights Department in December, a move that is often a precursor to a lawsuit. Lively's 80-page complaint to the department accused Baldoni of sexual harassment on the set of the film, including improvised kissing during filming, showing her nude photos of his wife and other unwanted discussion of his sex life.

A New York Times spokeswoman denied the allegations and said the paper plans to "vigorously defend against the lawsuit." She noted that the paper has not retained counsel.

"Our story was meticulously and responsibly reported. It was based on a review of thousands of pages of original documents, including the text messages and emails that we quote accurately and at length in the article. Those texts and emails were also the crux of a discrimination claim filed in California by Blake Lively against Justin Baldoni and his associates," said Danielle Rhoades Ha, senior vice president of external communications.

Baldoni's complaint was signed by Bryan J. Freedman of Liner Freedman Taitelman + Cooley LLP. It says that the Times used cherry-picked text messages devoid of context to push a sensationalist narrative against Baldoni, the studio he co-owns, as well as publicists Melissa Nathan and Jennifer Abel. The plaintiffs claim libel, false light invasion of privacy, promissory fraud and breach of implied-in-fact contract.

"What is the obligation of the press when they get a complaint?" commented R. Rex Parris of the Parris Law Firm, who is not connected with the case. "Do you have the obligation to fact check? Should they have waited for him to respond? It raises a problem which has been going on for decades. We write the complaints for the press, not the lawsuit."

However, he gave Baldoni little chance of prevailing with the lawsuit filed in California, saying the actor/director is "staring down the barrel of a SLAPP lawsuit. Time to respond withstands a demurrer."

The complaint states that "the article's central thesis, encapsulated in a defamatory headline designed to immediately mislead the reader, is that plaintiffs orchestrated a retaliatory public relations campaign against Lively for speaking out about sexual harassment - a premise that is categorically false and easily disproven."

"If the Times truly reviewed the thousands of private communications it claimed to have obtained, its reporters would have seen incontrovertible evidence that it was Lively, not plaintiffs, who engaged in a calculated smear campaign. The complete communications demonstrate beyond question that plaintiffs had no intention of 'destroying' or 'burying' Lively through aggressive tactics," it continues. Wayfarer Studios LLC, et al., v. The New York Times Co., 24STCV34662 (L.A. Super. Ct., filed Dec. 31, 2024).

It says that the Times reached out to the plaintiffs at around 9:45 p.m. EST on a Friday and asked for a response by noon EST the following day, which "created an implied-in-fact contract between the parties," but the paper published the article about two hours before that deadline.

The Times spokeswoman said in relation to that claim: "Mr. Baldoni, Wayfarer and the other subjects chose not to have any conversations with The Times or address any of the specific text messages or documents and instead emailed a joint response, which was published in full. (Also, they sent their response to The Times at 11:16 pm ET Dec 20th, not at 2:16am ET Dec 21st as the complaint says.)."