Monday, January 29, 2007

Gilbert v. Sykes (Cal. Ct. App. - Jan. 26, 2007)

Loyal readers will know that I'm a big fan of Justice Butz. She generally writes excellent, erudite opinions, and ones that typically persuade me that she's totally right.

Except for this one. Mind you, this remains an excellent, erudite opinion, and at 30-plus pages, it's hardly an opinion that Justice Butz cranked out on a whim. Nonetheless, on the merits, I think it's pretty clearly wrong.

I'd have suggested the opinion as valuable reading wholly apart from my fundamental disagreement with its conclusion. For one thing, Justice Butz begins the opinion with the following eye-catching opening paragraph: "In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic. The number of people, especially women, who have had minimally invasive cosmetic surgery has grown exponentially in the past several years." That's not the usual opening gambit to something published in the California Reporter, so I liked the opinion from the outset.

The facts of the case are also interesting. It's about a plastic surgery that allegedly went bad, and a web site that the patient (Georgette Gilbert) subsequently created -- -- that detailed, as the name of the site suggests, her experience with the process. This alongside a medical malpractice suit against the doctor who performed her plastic surgery, Dr. Jonathan Sykes. Ms. Gilbert also allegedly spent some real money and bought herself a sponsored link on Google so that whenever someone typed Dr. Sykes's name her web site came up -- a neat trick, and one that undoubtedly served to "bring home" the risks of the malpractice suit to Dr. Sykes. (By the way, when you type in his name now, Ms. Gilbert's web site remains the very first result you see on Google.)

Not surprisingly, Ms. Gilbert's web site hardly painted Dr. Sykes in a positive light, and was (and is) basically devoted to insulting the guy. (Read it if you don't believe me. The before and after photos are pretty telling -- we're not talking major mistakes here, but she puts up a very nice "before" photo and an overexposed "after" photo that indeed looks a fair piece worse.) The best part of the site, in my view, is when Ms. Gilbert includes a portion of Dr. Sykes's deposition in which he's asked if he's ever been a defendant to any other malpractice suits and to he responds "I think three others." To which Ms. Gilbert says (in 24-point, red, and all caps) that Dr. Sykes has in fact been involved in at least 11 medical malpractice suits, and then lists them. I thought that this basically encapsulated the dispute, since (1) these facts make Dr. Sykes look pretty bad, and likely justly so, since it casts a great deal of doubt about his credibility (which is pretty important when choosing a doctor to work on your face, no?), and (2) is deceiving -- even though it still has a point -- since around half of these 11 lawsuits were filed after he answered the question (and also included Ms. Gilbert's suit). In other words, it looks like both sides here aren't exactly being the most honest and forthright they could be.

So it's an interesting glimpse both into the world of plastic surgery as well as the inter- and intrapersonal dynamics that often attend a civil lawsuit.

All of which is worth reading, albeit irrelevant to the merits. As for the latter, this post is already too long, but it is probably sufficient to say briefly that I strongly disagree with Justice Butz's conclusion that Dr. Sykes is a limited purpose public figure. Dr. Sykes (as you might have gathered) filed a defamation counterclaim to Ms. Gilbert's malpractice action based upon the contents of her web site, to which Ms. Gilbert responded by filing an anti-SLAPP motion. The trial court denied the motion, but Justice Butz reverses.

The opinion properly holds, in my view, that the web site is an act covered by Section 425.16 as an act in furtherance of a person's right to free speech and in connection with an issue of public interest; e.g., the risks of plastic surgery. Dr. Sykes disagrees, but I think Justice Butz rightly dispenses with this objection. Where she gets it wrong, in my view, is on the merits -- on the probability of success. Justice Butz holds that because Dr. Sykes did numerous things to publicize his practice (e.g., advertising, appearing on local television shows, writing articles in medical journals), he's thereby become a limited purpose public figure on the issue -- and thus (unlike normal plaintiffs) must prove actual malice (by clear and convincing evidence, no less) in order to prevail on his defamation claim. Which he can't do. Hence, according to Justice Butz, Dr. Sykes loses the anti-SLAPP motion, and must pay all of Ms. Gilbert's costs and attorney's fees both below and on appeal.

I'm pretty convinced, however, that if Dr. Sykes is a limited purpose public figure on this basis than virtually everyone is -- or at least everyone worth suing. There was no showing that Dr. Sykes was actually prominent, only that he tried to become prominent by writing advertising and writing articles and the like. But of course he did that: that's part of his job, and is precisely how one advances (and gets business) in his field. If writing articles and advertising and/or being quoted by the media makes one a limited purpose public figure, then I know of around a hundred industries in which pretty much every single member has precisely such a status. Take the entertainment industry, or medicine, or (close to my heart) being a professor, or (perhaps close to yours) being a lawyer. You may well write articles, or be on television, or blog, or write newsletters. Under Justice Butz's view, this makes you a limited purpose public figure because you've deliberately attempted to interject yourself into a public debate. Which means that you can pretty much never be defamed, as you'll almost never be able to prove actual malice, much less with clear and convincing evidence. So get used to people calling you a liar or fraud or child molester or whatever, as you'll have no recourse. Moreover, if you try to file suit notwithstanding this counsel, get ready to pay the other side's attorney's fees, since you'll lose the anti-SLAPP motion that the other side will invariably file.

Yes, there are limited purpose public figures. But doing the types of routine, business-related activities that Dr. Sykes did here doesn't make him one. Much less is Dr. Sykes -- as Justice Butz asserts -- the "archtypical" example of a limited public figure. In my view, he's not one at all, and assuredly is not the classic example. Moreover, if he is, this involves a fairly expansive -- and radical -- interpretation of the doctrine.

So I agree with Part II of the opinion, as well as much of Part IV (in which Justice Butz goes line-by-line down the various defamation claims and finds no probability of success). But Part III just seems wrong to be, and wrong in a fairly serious way -- and one with widespread implications far beyond the reputation of Dr. Sykes.

Defamation and First Amendment stuff is hard, of course. Particularly amorphous and fact-dependent issues such as the public figure doctrine. Moreover, I have no doubt whatsoever that Justice Butz and the rest of the panel gave a great deal of thought to the issue, and that their constitutional views are well within the realm of the possible.

But I still think they're wrong. So, with all due respect to Justice Butz, you'll have to count me out on this one. I don't think that the First Amendment limited purpose public figure doctrine goes nearly this far.