But as the case creeps along, now towards a trial date that’s expected to come this autumn, the ground beneath the parties’ feet has shifted. Last year, inspired by individuals like Donald Trump and Harvey Weinstein, New York passed a law intended to protect free speech from frivolous lawsuits. The anti-SLAPP legislation has many components, and it may be working as libel defendants are on a massive winning streak.
Now, Kesha — advised by O’Melveny’s Daniel Petrocelli and Leah Godesky — is hoping to use the anti-SLAPP’s law’s allowance for a counterclaim to pursue compensatory and punitive damages plus attorneys’ fees and costs that she has incurred over seven long years defending what Kesha’s legal team believes to be a meritless defamation suit.
The move is radical in more than one way.
Initially, because the judge ruled that Dr. Luke was a private figure, he didn’t need to show that Kesha made false statements with actual malice — meaning knowledge of falsity or reckless disregard of the truth. Negligence would do. That decision is now on appeal — and Kesha’s position that a top producer in the entertainment industry is a public figure has garnered support in media law circles. The Reporters Committee for Freedom of the Press along with news organizations like The Daily Beast, Dow Jones, New York Public Radio, and others have filed an amicus brief in Kesha’s favor.
While Kesha still hopes a New York appeals court overrules the trial judge’s summary judgment decision, the new anti-SLAPP law anticipates situations where even private figures sometimes have to demonstrate actual malice to prevail. Those situations are when free speech is exercised with respect to issues of public concern.
“As this Court has already found, Kesha’s statements that Dr. Luke sexually assaulted her (and another world-famous female artist) qualify as a matter of public concern,” states a new memorandum from Kesha’s team. “There could be no serious debate to the contrary. Indeed, one of the three courts to have already applied [the new anti-SLAPP statute] underscored that ‘sexual impropriety and pressure in the music industry’ ‘indisputably’ constitutes an issue of public interest.”
(The reference is to a Feb. 26 decision where an aspiring saxophonist prevailed against an established jazz musician she accused of pressuring her into a sexual relationship.)
The memorandum adds, “Plaintiffs’ defamation claims obviously involve a matter of public concern, and if the jury finds that Kesha’s reporting of Dr. Luke’s sexual assault is truthful, it necessarily follows that Dr. Luke brought this lawsuit solely to harass and intimate Kesha.”
Below is the full memorandum. The two sides will appear before Judge Jennifer Schecter later this month for a ruling on whether the amended counterclaim will be allowed. Anti-SLAPP laws have been enacted throughout the nation; but this would be a super-rare instance of defendant possibly collected damages after plaintiffs partially prevails on summary judgment. That is, if Kesha is successful, hardly a given.
Meanwhile, Kesha’s lawyers and Dr. Luke’s lawyers are exchanging witness and exhibit lists and will likely make those public in June in time for a pre-trial conference. A hard trial date has yet to be set.
You can find the full document here.
This article was originally published by The Hollywood Reporter.