American Media Inc. responds to Karen McDougal's lawsuit

The publisher of the National Enquirer asked a California court Monday to dismiss a lawsuit brought by a former Playboy centerfold who claims she had an affair with Donald Trump, arguing that the confidentiality deal struck with Karen McDougal before the 2016 election is protected under the First Amendment.

JEAN-PAUL JASSY, Cal. Bar No. 205513 gee

Count}!

.jpjassy@jassyvick.com
KEVIN L. VICK, Cal. Bar No. 220738

kVick@jassyVick.com 02 ZUIU
JASSY VICK CAROLAN LLP -
800 Wilshire Boulevard, Suite 800 ?mm? U?icerICI
Los Angeles, California 90017 By: Marlon Gomez, Deputy

Telephone: 310-870-7048
Facsimile: 310-870?7010

LEE E. GOODMAN (pro hac vice application forthcoming)
lgoodman@wileyrein.com

ANDREW G. WOODSON (pro hac vice application forthcoming)
awoodson@wileyrein.com

WILEY REIN LLP

1776 Street NW

Washington, DC 20006

Telephone: 202-719?7000

Facsimile: 202-719?7049

CAMERON STRACHER (pro hac vice application forthcoming)
cstracher@amilink.com

General Counsel - Media

AMERICAN MEDIA, INC.

4 New York Plaza, 2d Floor

New York, NY 10004

Telephone: 212-743-6513

Facsimile: 646?810-3 089

Attorneys for Defendant
AMERICAN MEDIA, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Case No. BC 698956

KAREN MCDOUGAL, an individual, Assigned to the Hon. Michael L. Stern
Plaintiff, DEFENDANT AMERICAN MEDIA,
VS. NOTICE OF MOTION AND SPECIAL
AMERICAN MEDIA, INC, a Delaware MOTION TO STRIKE COMPLAINT
corporation; and DOES 1 through 25, PURSUANT TO C.C.P. 425.16;
inclusive, MEMORANDUM OF POINTS AND
Defendants. DECLARATION OF KEVIN

L. VICK WITH EXHIBITS 1-8;
DECLARATION OF DYLAN HOWARD
WITH EXHIBITS 9-11; DECLARATION 013?
LEE E. GOODMAN WITH EXHIBITS 12-18

Date: April 30, 2018
Time: 8:30 am.
Dep?t: 62

Res.# 180402302463

ark

SPECIAL MOTION TO STRIKE

I

TO THE HONORABLE COURT, PLAINTIFF AND COUNSEL:

2

PLEASE TAKE NOTICE that on April 30, 2018, at 8:30 a.m. or as soon thereafter as

3

counsel may be heard in Depmiment 62 of the Los Angeles County Superior Court, the Hon.

4

Michael L. Stern, presiding, located at 111 N01ih Hill Street, Los Angeles, California 90012,

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defendant American Media, Inc. ("AMI") will and hereby does move this Court for an order,

6

pursuant to California Code of Civil Procedure ASS 425.16 ("Section 425.16" or the "anti-SLAPP 1

7

statute"), striking and dismissing, in whole or, alternatively, in pmi, the Complaint and its sole

8

cause of action for declaratory relief filed by plaintiff Karen McDougal ("McDougal") with

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prejudice and without leave to amend. 2 McDougal's cause of action for declaratory relief under

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Code of Civil ProcedureASS 1060 falls within the scope of Section 425.16(e), and, as such, the burden

11

shifts to McDougal to establish, with admissible evidence, a probability that she will prevail on her

12

cause of action, and all pmis thereof. C.C.P. ASS 425.16(b)(l). 3 McDougal cannot satisfy her burden.

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AMI therefore requests that the Comi strike and dismiss, with prejudice and without leave to

14

amend, McDougal's cause of action for declaratory relief, or, alternatively, p01iions thereof, for the

15

following separate and independent reasons:

16

aC/

There was no "fraud in the execution" of the agreement between McDougal and AMI;

17

aC/

McDougal ratified the agreement between herself and AMI;

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aC/

McDougal waived any claim of fraud associated with the agreement between herself and

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AMI;

20

aC/

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The agreement between McDougal and AMI is not illegal for the following separate and
independent reasons:

22

o

The First Amendment protects AMI' s editorial discretion;

23

o

The First Amendment protects AMI' s newsgathering conduct;

24
25

1

SLAPP is an acronym for "strategic lawsuit against public pmiicipation." Equilon Enters. v.
Consumer Cause, Inc., 29 Cal. 4th 53, 57 (2002).
2

26
27

McDougal may not amend her complaint in the face of this anti-SLAPP motion. See, e.g., Hansen
v. Calif. Dep 't of Corrections and Rehab., 171 Cal. App. 4th 1537, 1547 (2008).

3

The Court may strike pmis of a complaint pursuant to the anti-SLAPP statute. Baral v. Schnitt, 1
Cal. 5th 376, 385-392 (2016)

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SPECIAL MOTION TO STRIKE

1

o

2

The agreement between McDougal and AMI does not violate the Federal
Election Campaign Act ("FECA");

3

o

Alternatively, 52 U.S.C. ASS 30118(a), and other relevant FECA provisions and

4

related regulations, are unconstitutionally vague and overbroad facially and as

5

applied to the press activities at issue here; and

6

aC/

The agreement between McDougal and AMI is not against public policy.

7

This Motion is based on: this Notice; the attached Memorandum of Points and Authorities; the

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attached Declaration of Kevin L. Vick with Exhibits 1 - 8; the attached Declaration of Dylan

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Howard with Exhibits 9 - 11; the attached Declaration of Lee E. Goodman with Exhibits 12 - 18;

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the concurrently-lodged Exhibit l; the concmTently-filed Notice of Lodging of Exhibit 1; all related

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pleadings and documents on file; and such further evidence or argument as may be presented at the

12

hearing on this Motion.

13

AMI also reserves the right to request that the Court enter an award of attorneys' fees and

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costs pursuant to Code of Civil ProcedureASS 425.16(c). 4

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DATED: April 2, 2018

16

JASSY VICK CAROLAN LLP
JEAN-PAUL JASSY
KEVIN L. VICK

17
WILEY REIN LLP
LEE E. GOODMAN
ANDREW WOODSON

18
19

AMERICAN MEDIA, INC.
CAMERON STRACHER

20
21
22

l/_

JEANlJLJASSy
Counsel for Defendant American Media, Inc.

23
24
25

26
27

4

If this Motion, or any part thereof, is granted, AMI intends to file a noticed motion to recover
attorneys ' fees and costs and/or a costs memorandum. C.C.P. ASS 425.16(c); American Humane Ass 'n
v. Los Angeles Times Communications LLC, 92 Cal. App. 4th 1095, 1103 (2001).

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SPECIAL MOTION TO STRIKE

TABLE OF CONTENTS

1

Page

2
3

I.

INTRODUCTION ................................................................................................................... 1

4

II.

SUMMARY OF PERTINENT FACTS .................................................................................. 2

5

III.

THE ANTI-SLAPP STATUTE APPLIES TO McDOUGAL'S SOLE CLAIM .................... 3

6
7

A.

The Anti-SLAPP Statute Is Construed Broadly .......................................................... 3

B.

AMI Satisfies The First Step In The Anti-SLAPP Analysis ....................................... 3

8
9

1.

McDougal's Claim Falls Within Section 425.16(e)(4) ...................................... 3

2.

McDougal's Claim Also Falls Within Section 425.16(e)(2) .............................. 5

10
IV.

McDOUGAL CANNOT ESTABLISH A PROBABILITY OF PREVAILING .................... 5

11
A.

12
13
14

B.

15

There Was No Fraud In The Execution, And McDougal Ratified The Contract.. ...... 5
1.

McDougal Had Two Opp01iunities To Review And Ratify The Agreement .... 6

2.

McDougal Waived Any Fraud By Accepting The Agreement's Benefits ......... 7

The Agreement Is Not Illegal ...................................................................................... 7

16

1.

The First Amendment Protects AMI's Discretion Not To Publish .................... 7

17

2.

The First Amendment Also Protects AMI's Newsgathering ............................. 9

18

3.

The Agreement Does Not Violate The Federal Election Campaign Act ......... 11

19

C.

The Agreement Is Not Against Public Policy ........................................................... 13

20

1.

The Agreement Allows McDougal To Speak, And She Already Has ............. 14

21

2.

Public Policy Supports Enforcing Contracts, Including This Agreement.. ...... 14

3.

Public Policy Supports The Freedom Of Prelitigation Communications ........ 14

4.

Public Policy Favors AMI's Exercise Oflts First Amendment Rights ........... 15

22
23
24
V.

CONCLUSION ..................................................................................................................... 15

25

26
27

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SPECIAL MOTION TO STRIKE

TABLE OF AUTHORITIES

1

2

Page(s)

3

Federal Cases

4

Associated Press v. United States,
326 U.S. 1 (1945) ..................................................................................................................... 8

5
6

Baggett v. Bullitt,
377 U.S. 360 (1964) ............................................................................................................... 13

7

Banque Ara be Et Int 'l v. Maryland Nat. Bank,
850 F. Supp. 1199 (S.D.N.Y. 1994) ......................................................................................... 7

8

Branzburg v. Hayes,
408 U.S. 665 (1972) ............................................................................................................. 8, 9

9

10
11
12

13

Broadrick v. Oklahoma,
413 U.S. 601 (1973) ............................................................................................................... 13
Buckley v. Valeo,
424 U.S. 1 (1976) ................................................................................................................... 13
Clifton v. FEC,
114 F.3d 1309 (1st Cir. 1997) .................................................................................................. 9

14

Clifton v. FEC,
927 F. Supp. 493 (D. Me. 1996) ............................................................................................. 13

15

Edward J DeBartolo C01p. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988) ............................................................................................................... 13

16
17
18
19

20

FEC v. Phillips Publishing, Inc.,
517 F. Supp. 1308 (D.D.C. 1981) .......................................................................................... 12
Front, Inc. v. Khalil,
24 N.Y.3d 713 (2015) ............................................................................................................ 15
Gonzalez v. Morse,
2017 WL 4539262 (E.D. Cal. Oct. 11, 2017) .......................................................................... 9

21

Houchins v. KQED, Inc.,
438 U.S. 1 (1978) ..................................................................................................................... 9

22

Makaejf v. Trump Univ., LLC,
715 F.3d 254 (9th Cir. 2013) ................................................................................................ 4, 5

23
24
25

26
27
28

Miami Herald Pub. Co. v. Tornillo,
418 U.S. 241 (1974) ........................................................................................... 4, 8, 10, 11, 15
Newton v. NBC,
930 F.2d 662 (9th Cir. 1990) .................................................................................................... 9
Orloski v. FEC,
795 F.2d 156 (D.C. Cir. 1986) ............................................................................................... 13
Pacific Gas & Elec. Co. v. Public Util. Comm 'n,
475 U.S. I (1986) ................................................................................................................... ll

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SPECIAL MOTION TO STRIKE

1

2
3
4

5
6

Papachristou v. City ofJacksonville,
405 U.S. 156 (1972) ............................................................................................................... 13
Passaic Daily News v. NL.R.B.,
736 F.2d 1543 (D.C. Cir. 1984) ............................................................................................... 9
Pittsburgh Press Co. v. Human Relations Comm 'n,
413 U.S. 376 (1973) ................................................................................................................. 8
Reader's Digest Ass 'n, Inc. v. FEC,
509 F. Supp. 1210 (S.D.N.Y. 1981) ...................................................................................... 12

7

St. Amant v. Thompson,
390 U.S. 727 (1968) ............................................................................................................... 10

8

State Cases

9
10
11
12

13

Bailey v. Loggins,
32 Cal. 3d 907 (1982) ............................................................................................................... 8
Baral v. Schnitt,
1 Cal. 5th 376 (2016) ............................................................................................................ 3, 5
Blatty v. Nei,11 York Times Co.,
42 Cal. 3d 1033 (1986) ............................................................................................................. 8

14

Briggs v. Eden Council,
19 Cal. 4th 1106 (1999) ........................................................................................................ 4, 5

15

City ofSanta Barbara v. Superior Ct.,
41 Cal. 4th 747 (2007) ............................................................................................................ 13

16
17
18
19
20

De Havilland v. FX Networks, LLC,
-- Cal. App. 5th--, 2018 WL 1465802 (Mar. 26, 2018) ......................................................... 14
Desert Outdoor Advertising v. Super. Ct.,
196 Cal. App. 4th 866 (2011) ................................................................................................... 6
Eisenberg v. Alameda Newspapers, Inc.,
74 Cal. App. 4th 1359 (1999) ................................................................................................... 8

21

Jackson v. Mayweather,
10 Cal. App. 5th 1240 (2017) ................................................................................................... 4

22

Kashian v. Harriman,
98 Cal. App. 4th 892 (2002) ................................................................................................... 15

23
24
25

26
27

28

Kaufman v. Goldman,
195 Cal. App. 4th 734 (2011) ................................................................................................. 14
Kline v. Turner,
87 Cal. App. 4th 1369 (2001) ................................................................................................... 7
LeClerq v. Michael,
88 Cal. App. 2d 700 (1948) ...................................................................................................... 7
Lieberman v. KCOP Television, Inc.,
110 Cal. App. 4th 156 (2003) ............................................................................................... 3, 4

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SPECIAL MOTION TO STRIKE

1

2
3

4
5

6

McCoy v. Hearst C01p.,
42 Cal. 3d 835 (1986) ............................................................................................................. 10
Nadel v. Regents of the Univ. of Calif.,
28 Cal. App. 4th 1251 (1994) ................................................................................................... 5
Navellier v. Sletten,
29 Cal. 4th 82 (2002) .......................................................................................................... 3, 14
Nygard, Inc. v. Uusi-Kerttula,
159 Cal. App. 4th 1027 (2008) ................................................................................................. 4

7

Ramona Unified Sch. Dist. v. Tsiknas,
135 Cal. App. 4th 510 (2005) ................................................................................................... 5

8

Rosencrans v. Dover Images, Ltd.,
192 Cal. App. 4th 1072 (2011) ................................................................................................. 6

9

10
11
12

13

14

Rubin v. Green,
4 Cal. 4th 1187 (1993) ............................................................................................................ 15
Savage v. Pacific Gas & Elec. Co.,
21 Cal. App. 4th434 (1993) ................................................................................................... 10
South Sutter LLC v. LJ Sutter Partners, L.P.,
193 Cal. App. 4th 634 (2011) ............................................................................................... 3, 5
Vulcan Power Co. v. Munson,
932 N.Y.S.2d 68 (N.Y. Sup. Ct. App. Div. 2011) .................................................................... 6

15
Federal Statutes

16

52 U.S.C. ASS 30101(8)(a) ..................................................................................................................... 13

17

52 U.S.C. ASS 30101(9)(B)(i) ................................................................................................................ 11

18

52 U.S.C. ASS 30118(a) .......................................................................................................................... 11

19

20

Federal Regulations
11 C.F.R. ASS 100.73 ............................................................................................................................. 11

21

11 C.F.R. ASS 100.132 ........................................................................................................................... 11

22

11 C.F.R. ASS 113.l(g)(6) ...................................................................................................................... 13

23
24
25

26
27
28

State Statutes
California Code of Civil Procedure
ASS 425.16 ............................................................................................................................... 1, 4
ASS 425.16(a) .............................................................................................................................. 3
ASS 425.16(b)(l) ...................................................................................................................... 3, 5
ASS 425.16(e) ........................................................................................................................... 3, 4
ASS 425.16(e)(2) .......................................................................................................................... 5
ASS 425.16(e)(4) .................................................................................................................. 3, 4, 5

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SPECIAL MOTION TO STRIKE

1
2
3

4

Civil Code
ASS 47(b) .................................................................................................................................... 15
ASS1589 ....................................................................................................................................... 7
Penal CodeASS 632 .................................................................................................................................. 4

Federal Election Commission Documents

5

MUR 5562/5570 (Sinclair) ................................................................................................................. 12

6

MUR 5569 (KFI-AM 640) First Gen. Counsel's Repmi ................................................................... 12

7

8

MURs 5540/5545 Statement of Reasons of Comm'rs Toner, Mason, Smith .................................... 12
MURs 4929/5006/5090/5117 (Los Angeles Times), Statement of Reasons by Comm'rs
Wold, McDonald, Mason, Sandstrom, Thomas ..................................................................... 12

9

10
11
12

13
14

Miscellaneous
H.R. Rep. No. 93-1239, 93d Congress, 2d Sess. (1974) .................................................................... 12
Howard Kmiz, "Newsweek's Melted Scoop," Washington Post, Jan. 22, 1998 ............................... 10
Jack Shafer, "Why Did NBC News Sit On The Trump Tape For So Long?,"
Politico, Oct. 10, 2016 ........................................................................................................... 10
Jack Shafer, "Why Not Pay Sources?," Slate, April 29, 2010 ........................................................... 10

15

Jeremy W. Peters, "Paying for News? It's Nothing New,"
Nevv York Times, Aug. 6, 2011 ................................................................................................. 9

16

John Cook, "Pay Up: Sources have their agendas. Why can't money be one?," Columbia
Journalism Review, May/June 2011 ....................................................................................... 10

17
18

Kelly Heyboer, "Paying For It," American Journalism Review, April 1999 ..................................... 10
Kelly McBride, New York Times opn., "When It's O.K. to Pay for a Story," June 9, 2015 .............. 10

19
20
21
22
23
24
25

26
27
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SPECIAL MOTION TO STRIKE

1
2

I.

INTRODUCTION
It was "the best of all worlds." It was a "win-win for me." Those are Karen McDougal's

3

words. That is how she felt when she accepted AMI' s offer to pay her a substantial amount of

4

money to write articles, boost her image as a health and fitness personality, and sell an exclusive

5

"story right" with the understanding that AMI had the right to exercise its editorial discretion not to

6

publish the story. Later, Ms. McDougal sought clarification of the exclusive story right. AMI and

7

Ms. McDougal amended their agreement to make it clear she could answer press inquiries, and Ms.

8

McDougal "ratified and confirmed" her original agreement with the aid of her new counsel at

9

Gibson Dunn. AMI proceeded to publish 25 of Ms. McDougal's aiiicles, placed her on the cover of

10
11

"Muscle & Fitness Hers," and featured her across its publications.
Over a year later, represented by her third lawyer, Ms. McDougal sued AMI, claiming that

12

her contract was void in part because it prohibits her from talking to the press. It does not. Two

13

days after filing this lawsuit, she did a one-hour interview with CNN where she vividly detailed her

14

alleged affair with President Trump and bashed AMI before millions of viewers. Near the

15

interview's end, Ms. McDougal voiced satisfaction that, "now, people know my truth."

16

Despite the Gibson Dunn-negotiated contract amendment, the CNN interview, and

17

comments in a New Yorker article, Ms. McDougal now claims that the prior sale of her story right

18

"censors" her. In reality, it is Ms. McDougal' s lawsuit that targets AMI's First Amendment rights

19

by advancing the novel and radical proposition that once a media company has a story about a

20

candidate, it must publish that story or else be in violation of election law. She also contends that

21

AMI was legally obligated to publish more aiiicles than the 25 published so far. The contract she

22

signed on the advice of two sets oflawyers, however, is to the contrary, while the First Amendment

23

protects a publisher's editorial right to decide when, where, how, and whether to publish. Finally,

24

Ms. McDougal claims that the "win-win" agreement she signed and profited from is now against

25

public policy. It is not.

26
27

Because Ms. McDougal's suit targets AMI's conduct in fmiherance of speech rights in
connection with issues of public interest, it is subject to this motion under C.C.P. ASS 425.16 ("Section

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SPECIAL MOTION TO STRIKE

1

425.16" or the "anti-SLAPP statute"). McDougal cannot satisfy her burden of establishing a

2

probability of success, and this motion should be granted in full.

3

II.

SUMMARY OF PERTINENT FACTS

In August 2016, Ms. McDougal, a former Playboy Playmate of the Year and model, was

4
5

excited to sign what she describes as a "win-win" agreement with news publisher AMI (the

6

"Agreement"). Ex. 1 at 38:50. McDougal alleges she was told by her lawyer, Keith Davidson,

7

before signing the Agreement, that AMI "would buy the story not to publish it," which would, as

8

McDougal puts it, "give her the best of all worlds-her private story [about her alleged affair with

9

President Trump] could stay private, she could make some money, and she could revitalize her

10

career." Compl., ,r 47 (emphasis in original). 5 The Agreement, among other provisions, gives AMI

11

the right and discretion, but not the obligation, to publish aiiicles by McDougal, and also gives AMI

12

exclusive story rights to "any relationship she has ever had with a then-married man." Compl., Ex.

13

A atASSASS 1, 3, 5-7, 9, 15. McDougal signed the Agreement, accepted $150,000 from AMI, and then

14

wrote 19 bylined aiiicles, was featured in another 6 articles, and was on the cover of a magazine -

15

across four separate AMI publications. Compl., Ex. A; Howard Deel., ,r,r 2-4; Exs. 9 - 11.

16

A few months later, McDougal fired Davidson, and, with the help of new lawyers at Gibson

17

Dunn, she negotiated an amendment to the Agreement (the "Amendment"). Complaint, ,r,r 18-19,

18

62-64. The Amendment stated that McDougal could freely respond to "legitimate press inquiries"

19

regarding her alleged affair with President Trump, and it expressly "ratified and confirmed" "all of

20

the other terms and conditions of the Agreement." Id., Ex. B at 1. Shmily thereafter, McDougal

21

provided extensive comments to the New Yorker about her agreement with AMI and her

22

relationship with President Trump. See https://goo.gl/cDZIC3.

23

On March 20, 2018, McDougal sued AMI seeking a declaratory judgment that the

24

Agreement was void ab initio. Two days later, she appeared in a lengthy interview with CNN's

25

Anderson Cooper discussing, in detail, her alleged affair with President Trump, AMI and the

26
27

5

AMI accepts McDougal's allegations of her subjective perception of AMI's editorial objectives
for purposes of this motion, but does not necessarily concede the accuracy of her allegations.

28
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SPECIAL MOTION TO STRIKE

1

Agreement. Exs. 1, 2. She explained her hope that AMI would exercise its editorial right to

2

"squash" the story of her alleged affair, and called that possibility a "win-win for me," as she would

3

be "happy" to see the story "killed." Ex. 1 at 38:50-39:15. Near the end of the interview,

4

McDougal said: "now, people know my truth." Id. at 51 :55.

5

III.

6

THE ANTI-SLAPP STATUTE APPLIES TO McDOUGAL'S SOLE CLAIM
A. The Anti-SLAPP Statute Is Construed Broadly

7

The anti-SLAPP statute was enacted to check "a disturbing increase in lawsuits brought

8

primarily to chill the valid exercise of the constitutional right of freedom of speech and petition,"

9

and it "shall be construed broadly." C.C.P. ASS 425.16(a). Declaratory relief suits are subject to anti-

10

SLAPP motions. South Sutter LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634, 665 (2011).

11

"Resolution of an anti-SLAPP motion involves two steps." Baral v. Schnitt, 1 Cal. 5th 376, 384

12

(2016); C.C.P. ASS 425.16(b)(l). First, "the defendant must establish that the challenged claim arises

13

from activity protected by" Section 425.16(e). Id. 6 Second, "[i]f the defendant makes the required

14

showing, the burden shifts" in the second step "to the plaintiff to demonstrate the merit of the claim

15

by establishing a probability of success," id., and, if this burden is not satisfied, then the claim must

16

be stricken in whole or in paii, M. at 385-392.

17

B. AMI Satisfies The First Step In The Anti-SLAPP Analysis

18

A defendant need only show that its alleged conduct "underlying the plaintiff's cause of

19

action fits one of the four categories spelled out in section 425.16, subdivision (e)." Navellier v.

20

Sletten, 29 Cal. 4th 82, 88 (2002) (emphasis added). McDougal's claim falls within two categories.

21

1. McDougal's Claim Falls Within Section 425.16(e)(4)

22

Section 425.16(e)(4) "provides a catch-all for 'any other conduct in furtherance of'" speech

23

or petition rights in connection with issues of public interest. Lieberman v. KCOP Television, Inc.,

24

110 Cal. App. 4th 156, 164 (2003) (emphasis in original). The Lieberman court concluded that

25
26
27

6

Section 425.16(e) protects: "(2) any ... writing made in connection with an issue under
consideration or review by a ... judicial body ... or (4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest." C.C.P. ASS 425.16(e).

28
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SPECIAL MOTION TO STRIKE

I

news gathering qualifies for protection under Section 425.16(e)(4) even where the plaintiff alleges

2

that the newsgathering technique was unlawful. Id. at 165-166 (applying Section 425.16(e)(4) to

3

claim for alleged violation of Penal CodeASS 632 for undercover recordings by a news repo1ier).

4

McDougal' s sole cause of action for declaratory relief arises from: AMI' s acquisition of

5

exclusive story rights about an alleged affair with President Trump; AMI' s purported editorial

6

decision not to publish more of McDougal's atiicles; AMI's editorial decision not to rep01i on her

7

alleged affair with Trump; and AMI's alleged legal threats to McDougal to comply with the

8

contract she signed and later "ratified and confirmed" with the assistance of her new counsel.

9

Compl., ,r,r 97-110. All of the foregoing targets AMI's purp01ied "conduct in furtherance of'

10

constitutional free speech and free press rights. C.C.P. ASS 425.16(e)(4). First, AMI's acquisition of

11

McDougal's agreement to write and appear in atiicles and provide exclusive story rights is

12

newsgathering, which squarely satisfies the first step in the Section 425.16(e)(4) analysis under

13

Lieberman, 110 Cal. App. 4th at 164-166. Second, AMI has a constitutional and contractual right to

14

exercise its editorial discretion not to publish McDougal' s articles or her personal story. Miami

15

Herald Pub. Co. v. Tornillo, 418 U.S. 241, 256-258 (1974) (holding that newspapers have a First

16

Amendment right not to publish); Compl., Ex. A atASSASS 1, 5, 6, 9 (affording AMI the discretionary

17

right to publish McDougal's atiicles and story). Third, AMI's purp01ied "threats oflegal action" to

18

enforce the Agreement, Compl., ,r 101, arise from AMI's alleged speech. Briggs v. Eden Council,

19

19 Cal. 4th 1106, 1115 (1999) ('" communications preparatory to or in anticipation of the bringing

20

of an action or other official proceeding are ... entitled to the benefits of section 425.16"').

21

McDougal cannot dispute that all of the foregoing involved matters of public interest.

22

"'[A]n issue of public interest"' within the meaning of Section 425.16(e) "is any issue in which the

23

public is interested." Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008).

24

McDougal insists throughout her Complaint that her story about Trump, her atiicles and AMI' s

25

conduct are all matters of public interest. Compl., ,r,r 21, 33, 37, 42-45, 47, 49, 53, 61, 63, 81, 88-

26

95, 99-106, 109. Additionally, there is a public interest in persons, such as McDougal and President

27

Trump, who are "in the public eye." Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1252-55

28

(2017). President Trump has been in the public eye for decades. Makaeff v. Trump Univ., LLC, 715
-4 -

SPECIAL MOTION TO STRIKE

1

F.3d 254,258 (9th Cir. 2013). The same holds true for McDougal, who was Playboy Playmate of

2

the Year in 1998, and a successful fitness model, appearing in "numerous magazines." Compl., ,r,r

3

6-7, 28-29; see also Nadel v. Regents of the Univ. of Calif., 28 Cal. App. 4th 1251, 1270 (1994)

4

(plaintiff can reveal herself to be "a person ... in the public eye" by virtue of allegations in her

5

complaint). The declaratory relief claim falls within the ambit of Section 425.16(e)(4).

6

2. McDougal's Claim Also Falls Within Section 425.16(e)(2)

7

The declaratory relief claim also falls within the ambit of Section 425.16(e)(2) to the extent

8

it is based on AMI' s alleged threats of legal action, which she asserts underpin, at least in part, the

9

controversy requiring judicial resolution. Compl., ,r,r 88, 101, 109; Briggs, 19 Cal. 4th at 1115.

10

IV.

McDOUGAL CANNOT ESTABLISH A PROBABILITY OF PREVAILING

11

Because AMI satisfies the first step of the anti-SLAPP analysis, the burden shifts to

12

McDougal to establish a probability of prevailing on her claim. Baral, 1 Cal. 5th at 384; C.C.P. ASS

13

425.16(b )(1 ). For McDougal, "the mere existence of a controversy is insufficient to overcome an

14

anti-SLAPP motion against a claim for declaratory relief;" rather, she "must introduce substantial

15

evidence that would support a judgment ofrelief made in [her] favor." South Sutter, 193 Cal. App.

16

4th at 670. "[T]he court must consider ... whether there are any constitutional or non-constitutional

17

defenses to the pleaded claims and, if so, whether there is evidence to negate those defenses."

18

Ramona Unif. Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510,519 (2005). McDougal alleges that the

19

Agreement was void ab initio for three reasons. Compl., ,r,r 99-106. She is wrong on all fronts, and

20

cannot satisfy her burden in the second step of the anti-SLAPP analysis.

21

A. There Was No Fraud In The Execution, And McDougal Ratified The Contract

22

McDougal alleges "fraud in the execution" of the Agreement only because she now claims

23

she thought- contrary to the language of the contract-that AMI "would be obligated to run more

24

than a hundred columns in her name" within a two-year period. Compl., ,r 99. Nothing in the

25

Agreement "obligates" AMI to run any, let alone over 100, ofMcDougal's articles. Ex. A. 7

26
7

27
28

Under the express terms of the Agreement, which included an integration clause and a waiver of
the ability to rescind, AMI had the "right" (not the obligation) to run McDougal's aiiicles, her
articles are AMI's "work[s]-for-hire," and "[a]ll decisions whatsoever, whether of a creative or

-5 -

SPECIAL MOTION TO STRIKE

1

1. McDougal Had Two Opportunities To Review And Ratify The Agreement

2

A "necessary element" of "fraud in the execution is reasonable reliance," and "[g]enerally,

3

it is not reasonable to fail to read a contract." Desert Outdoor Advertising v. Super. Ct., 196 Cal.

4

App. 4th 866, 873 (2011) (emphasis in original; internal quotation marks omitted). 8 A contract will

5

not be considered void due to "fraud in the execution" "if the plaintiff had a reasonable opp01iunity

6

to discover the true terms of the contract," and the "contract is only considered void when the

7

plaintiffs failure to discover the true nature of the document executed was without negligence on

8

the plaintiffs part." Rosencrans v. Dover Images, Ltd., l 92 Cal. App. 4th 1072, 1080 (2011)

9

(internal quotation marks removed). In Rosencrans, the plaintiff sought to void a release after

10

suffering severe injuries at a motocross track. Id. at 1077. The comi found no fraud in the

11

execution even though the plaintiff presented evidence that: the defendant told him to "sign this"

12

and said the release was just a "sign-in sheet"; plaintiff "did not know he was signing a release";

13

and plaintiff"was not given adequate time to read or understand" the release which he signed

14

within "10 seconds" as he sat in his truck with around "10 cars in line behind" him. Id. at 1077-80.

15

Here, McDougal had "a reasonable opportunity" to "discover the true terms of the contract"

16

twice. Id. First, she alleges that she took at least a day and a night to review the three page

17

Agreement, she communicated with her lawyer, Keith Davidson, who told her "WE CAN

18

DISCUSS ANYTIME," and she read it sufficiently carefully to "raise[] several concerns" about

19

specific terms. Compl., ,r,r 48-55 (capitalization in original). McDougal's Complaint alleges a

20

greater opportunity to understand the Agreement than the plaintiff had in Rosencrans where the

21

comi found no fraud in the execution. McDougal blames alleged pressure from Davidson and AMI

22

for her purpo1ied lack of understanding; but claims that, not long after signing the Agreement, she

23

realized the Agreement did not obligate AMI to run her aiiicles, whereupon she fired Davidson. 9

24
25

business nature," regarding the rights granted by McDougal were to be made in AMI's "sole
discretion." Compl., Ex. A atASSASS 1, 5, 6, 9, 14, 15.
8

26
27

Accord Vulcan Power Co. v. Munson, 932 N.Y.S.2d 68, 69-70 (N.Y. Sup. Ct. App. Div. 2011).

9

The Washington Post rep01is that, after McDougal's Complaint was filed, Davidson asse1ied that
he "'fulfilled his obligations and zealously advocated for Ms. McDougal to accomplish her stated
goals at that time."' See goo.gl/cEHxB7.

28
-6-

SPECIAL MOTION TO STRIKE

1

Id.,

2

,r,r 16-18, 55-62. 10
McDougal's second oppmiunity to discover the true terms of the contract came when she

3

hired "renowned" attorney Ted Boutrous of Gibson Dunn to negotiate an amendment to the

4

Agreement. Id.,

5

"legitimate press inquiries" regarding President Trump, the Amendment that Boutrous helped

6

McDougal obtain expressly "ratified and confitmed" "all of the other terms and conditions of the

7

Agreement," Compl., Ex.Bat 1, which includes all of the provisions that give AMI the "right" to

8

decide, in its "sole discretion," whether to publish McDougal's aiiicles, as well as the contract's

9

integration clause, id., Ex. A atASSASS 1, 5, 6, 9, 14, 15.

10

,r,r 18-19, 62-64.

In addition to stating that McDougal could freely respond to

2. McDougal Waived Any Fraud By Accepting The Agreement's Benefits

11

The Agreement also was ratified for the independent reason that McDougal kept the

12

$150,000 and continued to prepare miicles for AMI even after she had knowledge of what she now

13

calls "fraud in the execution." Howard Deel., ,r,r 2-4; Exs. 9-11. Civ. C. ASS 1589 ("acceptance of the

14

benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the

15

facts are known, or ought to be known, to the person accepting"); LeClerq v. Michael, 88 Cal. App.

16

2d 700, 702 (1948) ("[i]f a person retains the benefits of a contract and continues to treat it as

17

binding he will be deemed to have waived any fraud and to have elected to affirm the contract"). 11

18

B. The Agreement Is Not Illegal

19

1. The First Amendment Protects AMl's Discretion Not To Publish

20

If AMI had exercised its editorial discretion to publish McDougal's story, she would have

21

no argument that such publication was an illegal in-kind campaign contribution. But editors also

22

have a First Amendment right not to publish, and cannot be punished for exercising that right.

23
24
25
26
27

10

At that point, McDougal was at least on inquiry notice of the purpmied fraud. Kline v. Turner, 87
Cal. App. 4th 1369, 1374 (2001) (inquiry notice of alleged fraud begins when there is "notice or
information of circumstances to put a reasonable person on inquiry, or has the oppmiunity to obtain
knowledge from sources open to [her] investigation"). McDougal or her new attorneys simply had
to re-read the Agreement, the terms of which are clear.
11

Accord Banque Arabe Et Int'l v. Maryland Nat. Bank, 850 F. Supp. 1199, 1212-1213 (S.D.N.Y.
1994) (acceptance of contract after inquiry notice of alleged fraud is ratification).

28
-7 -

SPECIAL MOTION TO STRIKE

The key case is Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). In Miami Herald,

1

2

the U.S. Supreme Court struck down a "right of reply" statute, with first-degree misdemeanor

3

penalties for its violation, that required newspapers to provide a political candidate with equal space

4

to answer criticism in the newspaper. Id. at 244. The Court held that the "statute exacts a penalty

5

on the basis of content" as it "operates as a command in the same sense as a statute or regulation

6

forbidding [the newspaper] to publish specified matter." Id. at 256. It dismissed potential skeptics

7

of its holding, noting that "Governmental restraint on publishing need not fall into familiar or

8

traditional patterns to be subject to constitutional limitations on governmental powers." Id.
The First Amendment-based right of editorial discretion was already well-established by the

9

10

time the Miami Herald case reached the Supreme Court. 12 Against this backdrop, the Miami Herald

11

court held the "clear implication has been that any such compulsion to publish that which 'reason'

12

tells [the newspapers] should not be published is unconstitutional." 418 U.S. at 256. The high court

13

concluded by reaffirming the well-established constitutional principle that editorial judgment for the

14

18

content of newspapers should be left to editors and not the courts:
A newspaper [or magazine] is more than a passive receptacle or conduit for news,
comment, and advertising. The choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of the paper, and
treatment of public issues and public officials-whether fair or unfair-constitute
the exercise of editorial control and judgment. It has yet to be demonstrated how
governmental regulation of this crucial process can be exercised consistent with
First Amendment guarantees of a free press as they have evolved to this time.

19

418 U.S. at 258. 13 AMI has been well within its rights not to publish the McDougal-Trump story

20

yet, and its decision to withhold publication cannot give rise to liability under the First

21

Amendment. 14

22

12

15
16
17

23
24
25

See id. at 254-255 ( citing Associated Press v. United States, 326 U.S. 1, 20 n. 18 (1945) (district
comi did "not compel AP or its members to permit publication of anything which their 'reason' tells
them should not be published"), Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (emphasizing that
cases before the comi "involve[d] ... no express or implied command that the press publish what it
prefers to withhold"), Pittsburgh Press Co. v. Human Relations Comm 'n, 413 U.S. 376,391 (1973)
("we affirm unequivocally the protection afforded to editorial judgment")).
13

26
27
28

Our Supreme Comi also recognizes that a "publisher enjoys" a "total control over the content of
the newspapet as a private publisher." Bailey v. Loggins, 32 Cal. 3d 907, 918-919 (1982) (emphasis
added); see also Blatty v. New York Times Co., 42 Cal. 3d 1033, 1042-1049 (1986) (decision not to
include book on a best-seller list was protected by the First Amendment); Eisenberg v. Alameda
Ne1,vspapers, Inc., 74 Cal. App. 4th 1359, 1391 (1999) ("the courts have long held that the right to

-8 -

SPECIAL MOTION TO STRIKE

2. The First Amendment Also Protects AMl's Newsgathering

1
2

Just as the decision not to publish McDougal's story is squarely protected by the First

3

Amendment and cannot serve as the basis for liability, the two alleged predicate newsgathering acts

4

(making an inquiry to President Trump's representative and purchasing McDougal's exclusive story

5

rights along with other services from McDougal) also enjoy protection under the First Amendment,

6

and cannot suppmi McDougal's claim that anything AMI did was illegal under federal election law.

7

Newsgathering enjoys protection under the First Amendment. In Branzburg, 408 U.S. at

8

681, the comi held that "without some protection for seeking out the news, freedom of the press

9

could be eviscerated." In Houchins v. KQED, Inc., 438 U.S. 1 (1978), the comi held that there is an

10

"undoubted right to gather news 'from any source by means within the law[.]"' Id. at 11 (emphasis

11

added; quoting Branzburg, 408 U.S. at 681). All of AMI's alleged conduct is newsgathering

12

"within the law," and therefore constitutionally protected.

13

First, press entities routinely solicit comment from the subjects of stories. Gonzalez v.

14

Morse, 2017 WL 4539262 (E.D. Cal. Oct. 11, 2017), at *2 (reporter's questions to politician

15

protected under the First Amendment). Thus, even if AMI had reached out to President Trump's

16

representatives, there would have been nothing sinister about seeking comment concerning

17

McDougal's story- a story that the White House denies is true. 15

18

Second, paying sources and buying exclusive story rights is routine and has been for a long

19

time. In 1912, the New York Times paid $1,000 to a survivor of the Titanic for his exclusive

20

account. Ex. 3. 16 The New York Times also allegedly paid Charles Lindbergh $5,000 for the story

21
22

23
24

control the content of a privately published newspaper rests entirely with the newspaper's publisher.
The First Amendment protects the newspaper itself, and grants it a vhiually unfettered right to
choose what to print and what not to") (emphasis removed); accord Passaic Daily News v. NL.R.B.,
736 F.2d 1543, 1557 (D.C. Cir. 1984) ("newspapers have absolute discretion to determine the
contents of their newspapers") (emphasis added).

25

14 Similarly, the First Circuit ruled that forcing a group to publish information it disagrees with as a
mechanism for defining "contribution" is "obnoxious" and "abhorrent" to the First Amendment and
"unquestionably" unconstitutional. Clifton v. FEC, 114 F.3d 1309, 1313-1314 (1st Cir. 1997).

26

15

27

Seeking comment can help avoid defamation liability. Newton v. NBC, 930 F.2d 662, 686 (9th
Cir. 1990) (attempts to interview plaintiff dispel accusation of actual malice).
16

Jeremy W. Peters, "Paying for News? It's Nothing New," New York Times, Aug. 6, 2011.

28
-9 -

SPECIAL MOTION TO STRIKE

1

of his famous trans-Atlantic flight. Ex. 4. 17 In 1970, Esquire magazine paid Lt. William L. Calley

2

of My Lai massacre infamy for a confessional interview. Ex. 3. Journalist David Frost paid former

3

President Nixon $600,000 in 1976 for the right to exclusive interviews, which shed new light on

4

Watergate. Ex. 5. 18 In 1998, publisher Lany Flynt offered $1 million for information regarding

5

politicians who had engaged in extramarital affairs, which eventually led to the resignation of then

6

House Speaker-Designate Bob Livingston. Id., Ex. 6. 19 Some commentators, including ones

7

writing in the Columbia Journalism Review and the Ne-i,v York Times, defend the practice of paying

8

sources and highlight its ubiquity. See, e.g., Exs. 5, 7. 20
Third, media entities routinely decide not to run stories for all sorts of reasons - e.g., the

9
10

story is not sufficiently well-founded, not yet finished, not "on the record," not newsworthy, or out

11

of step with the publication's editorial stance. 21 The First Amendment squarely bars any intrusion

12

into those decisions. Miami Herald, 418 U.S. at 256-58. IfMcDougal's position were the law,

13

First Amendment jurisprudence would get turned on its head. For example, if a publisher paid for a

14

story about a candidate but ultimately had serious doubts about the story's veracity, then

15

McDougal' s rule would put the publisher in an intractable dilemma: publish the story and expose

16

the publisher to a defamation claim brought by the candidate, or decide not to publish and stand

17

accused of m'.aking an illegal in-kind contribution. 22 Also, under McDougal's rule, once a media

18

17

Jack Shafer, "Why Not Pay Sources?," Slate, April 29, 2010.

18

19

Kelly McBride, New York Times opn., "When It's O.K. to Pay for a Story," June 9, 2015. Former
Presidents Eisenhower and Johnson also received payments for interviews. Id.

20

19

21

22
23
24
25
26
27

Kelly Heyboer, "Paying For It," American Journalism Review, April 1999. See also John Cook,
"Pay Up: Sources have their agendas. Why can't money be one?," Columbia Journalism Review,
May/June 2011.
20

Although some may frown on the practice of paying sources, such ethical questions are not the
province of the courts: a "responsible press is an undoubtedly desirable goal, but press
responsibility is not mandated by the Constitution and like many other virtues it cannot be
legislated." Miami Herald, 418 U.S. at 256; McCoy v. Hearst C01p., 42 Cal. 3d 835,858 (1986)
(same); see also Savage v. Pacific Gas & Elec. Co., 21 Cal. App. 4th 434,445 (1993) (declining to
wade into differing opinions about journalistic ethics).
21

See Jack Shafer, "Why Did NBC News Sit On The Trump Tape For So Long?," Politico, Oct.
10, 2016; Howard Kmiz, "Newsweek's Melted Scoop," Washington Post, Jan. 22, 1998 at Cl
(explaining Newsweek's decision not to run Lewinsky story concerning President Clinton).

22

See St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (actual malice can be shown with
"sufficient evidence" that a publisher "entertained serious doubts as to the truth of his publication").

28
- 10 -

SPECIAL MOTION TO STRIKE

1

entity "coordinates" with a candidate by making a routine inquiry about the veracity of a story, the

2

publisher faces a Robson's choice: either publish, or stand accused of making an illegal in-kind

3

contribution.

4

Fourth, even assuming AMI's editorial decision not to run the McDougal story was

5

animated by a desire to support the candidacy of Donald Trump, and did benefit him - which AMI

6

does not concede - it is routine and constitutionally protected for the media to express a political

7

view. Miami Herald, 418 U.S. at 255 (newspapers have a right to advance their political views). In

8

Pacific Gas & Elec. Co. v. Public Util. Comm 'n, 475 U.S. 1, 12-13 (1986), the high comi struck

9

down an order requiring a utility company to send customers third party materials critical of the

10

utility's views. Relying extensively on Miami Herald, the plurality explained that, "[w]ere the

11

government freely able to compel corporate speakers to propound political messages with which

12

they disagree, this protection [for speech] would be empty, for the government could require

13

speakers to affirm in one breath that which they deny in the next." Id. at 16. News publishers have

14

helped and hurt politicians from time immemorial. Leading periodicals often endorse and excoriate

15

individual candidates. For example, in 2016, among the 100 largest U.S. newspapers, 57

16

newspapers endorsed Hillary Clinton, while only two endorsed Donald Trump. Ex. 8.

3. The Agreement Does Not Violate The Federal Election Campaign Act

17

McDougal's allegation that the Agreement is illegal under the Federal Election Campaign

18
19

Act ("FECA") is wrong as a matter of law because the FECA does not regulate the press. The

20

FECA prohibits corporations from making a "contribution" to a federal candidate, 52 U.S.C. ASS

21

30118(a), but a "Press Exemption" exempts from the definition of "expenditure" and "contribution"

22

all costs incurred by the press in covering or publishing news and editorials:
Any cost incurred in covering or cmTying a news story, commentary, or editorial
by any . . . newspaper, magazine, or other periodical publication, including any
Internet or electronic publication, is not a contribution unless the facility is owned
or controlled by any political pmiy, political committee, or candidate. 23

23
24
25
26
27

28

23

11 C.F.R. ASS 100.73; see also 52 U.S.C. ASS 30101(9)(B)(i); 11 C.F.R. ASS 100.132. Congress
emphasized when it passed the Press Exemption in 1974 that "it is not the intent of the Congress in
the present legislation to limit or burden in any way the First Amendment freedoms of the press and
of association. Thus the exclusion assures the unfettered right of the newspapers, TV networks, and

- 11 -

SPECIAL MOTION TO STRIKE

The Press Exemption is broad and protects all costs incurred by a press publication to gather

1

2

and cover news, pay journalists and researchers, publish and distribute news, as well as its editorial

3

decisions to publish (or not publish) 24 info1mation about campaigns and candidates. 25 In

4

accordance with the seminal decision in FEC v. Phillips Publishing, Inc., 517 F. Supp. 1308

5

(D.D.C. 1981), the FEC has routinely dismissed allegations of FECA violations against press

6

entities under the Press Exemption so long as the press entity is not owned or controlled by a

7

political committee, party or candidate and conducts legitimate press functions. Under the

8

exemption, "[n]o inquiry may be addressed to sources of information, research, motivation,

9

connection with the campaign, etc.,"26 including coordination with campaigns. 27 It also exempts

10

"claims of media bias or breaches of journalistic ethics."28

11

Here, the articles and story right that McDougal contracted to provide AMI are routine

12

services and content acquired to produce news and information. AMI' s exercise of editorial

13

discretion to decide whether, when, and how to publish McDougal's story is also a legitimate press

14

function exempt from regulation. Therefore, AMI' s costs to acquire this news content are not an

15

illegal corporate political "expenditure" or "contribution" to a federal candidate as a matter of law.

16

other media to cover and comment on political campaigns." H.R. Rep. No. 93-1239, 93d Congress,
2d Sess. at 4 (1974) (emphasis added).

17

24

18

FEC Matter Under Review ("MUR") 5562/5570 (Sinclair) (finding no contribution or
expenditure where Sinclair decided not to air a documentary film critical of John Kerry). Pertinent
MUR documents are attached as exhibits to the Goodman Declaration.

19

25

20
21

22
23
24
25

26
27

Reader's Digest Ass'n, Inc. v. FEC, 509 F. Supp. 1210, 1214-15 (S.D.N.Y. 1981) (exempting
costs of consultant to prepare special engineering report); MUR 5569 (KFI-AM 640), First Gen.
Counsel's Report at 9 (exempting Burbank radio station's costs of staging "Fire [David] Dreier"
rallies outside candidate's office).
26

Reader's Digest, 509 F. Supp. at 1215.

27

MUR 5569 (KFI-AM 640), First Gen. Counsel's Report at 7 (exempting radio show's on-air
interviews with David Dreier's opponent Cynthia Matthews); MURs 5540/5545, Statement of
Reasons of Comm'rs Toner, Mason, Smith at 3 (finding no in-kind contribution from decision, in
alleged coordination with John Kerry campaign, to air afalse story about President Bush's national
guard service, in part, because "[a]llegations of coordination are of no import when applying the
press exemption").
28

MURs 5540/5545 (CBS), Statement ofComm'r Weintraub at 2; accordMUR 5569 (KFI-AM
640), First Gen. Counsel's Report at 7 (exempting biased on-site "rally" to "fire [David] Dreier");
MURs 4929/5006/5090/5 l 17 (Los Angeles Times), Statement of Reasons by Comm 'rs Wold,
McDonald, Mason, Sandstrom, Thomas ("Unbalanced news repmiing and commentary are included
in the activities protected by the media exemption.").

28
- 12 -

SPECIAL MOTION TO STRIKE

1

In addition to the Press Exemption, AMI' s payment to McDougal is not a "contribution"

2

because the purpose of the payment manifestly appears on the face of the Agreement to have been

3

for the purchase of journalistic services, content, and a valuable story right. 29 Moreover, the

4

expansive interpretation of "contribution" advanced by McDougal would render the FECA

5

unconstitutionally vague and overbroad. There is no precedent or guidance treating newsgathering

6

or an editorial decision not to publish as an illegal in-kind contribution. 30 Thus, AMI had no notice

7

that its conduct might violate McDougal's read of the FECA. McDougal's proposed rule also is

8

unconstitutionally overbroad because it could be applied to punish any media entity that incurs costs

9

to secure a source or story, seeks reaction from a candidate, and then decides not to publish the

10

story. 31 Even were the Comi to ente1iain such a specious statutory interpretation, the Court would

11

be required to interpret the FECA to avoid constitutional infirmity under the First Amendment. 32

12

C. The Agreement Is Not Against Public Policy

13

"[U]nless it is entirely plain that a contract is violative of sound public policy, a court will

14

never so declare. The power of the comis to declare a contract void for being in contravention of

15

sound public policy is a very delicate and undefined power, and ... should be exercised only in cases

16

fiA*eefrom doubt." City a/Santa Barbara v. Superior Ct., 41 Cal. 4th 747, 777 n. 53 (2007)

17
29

18
19

20
21
22

23
24

See 52 U.S.C. ASS 30101(8)(a) (definition of"contribution" requires payment be made "for the
purpose of influencing an election," rather than other, non-election purposes); 11 C.F.R. ASS
113. l(g)(6) (a payment made "iITespective of candidacy" is not a "contribution"). The fact that
AMI received, in exchange for $150,000, services and assets, which it has used for journalistic
purposes, confirms that it did not donate the value to a federal campaign. The fact that a business
expense by AMI may have incidentally benefited a campaign does not transform the expense into a
"contribution." See Orloski v. FEC, 795 F.2d 156, 167 (D.C. Cir. 1986).
30

Papachristou v. City ofJacksonville, 405 U.S. 156, 162 (1972) (a law is unconstitutionally vague
if "it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute"'); Baggett v. Bullitt, 377 U.S. 360,372 (1964) (vague laws with
"uncertain" boundaries are especially dangerous in the First Amendment arena); cf Clifton v. FEC,
927 F. Supp. 493,499 (D. Me. 1996) (observing that the FECA "does not make corporate
expenditures, occuning after contact with a candidate, into contributions").
31

25

26
27

Buckley v. Valeo, 424 U.S. 1, 80 (1976) (holding the definition of "contribution" must be
interpreted narrowly to capture only payments "unambiguously related to the campaign"). AMI
may challenge the law as overbroad even as applied to third parties. Broadrick v. Oklahoma, 413
U.S. 601,612 (1973).
32

Edward J DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988) (courts must interpret statutes to avoid constitutional doubt).

28
- 13 -

SPECIAL MOTION TO STRIKE

1

(emphasis added; internal quotation marks omitted; ellipses in original). There are ample reasons to

2

doubt McDougal's contention that the Agreement violates public policy.

3

1. The Agreement Allows McDougal To Speak, And She Already Has

4

The basis of McDougal's "public policy" claim is that the Agreement allegedly "represents

5

an impermissible effort to censor and dist01i" McDougal's speech. Compl., ,r 105. That claim rings

6

hollow. McDougal alleges that she hoped AMI would exercise its editorial discretion not to

7

publish, or in her words "squash," her story about Trump. She called it the "best of all worlds" and

8

a "win-win for me" if AMI would not publish the story. Id.,

9

Amendment expressly allows McDougal to speak to the press about her alleged affair with Trump,

10

and, she did so in her comments to the New Yorker and in her one-hour interview on CNN watched

11

by millions. Compl., Ex. B; Exs. 1, 2. 33

12

,r 47; Ex. 1 at 38:50.

In any event, the

2. Public Policy Supports Enforcing Contracts, Including This Agreement

13

Public policy generally favors enforcing contracts: "Freedom of contract is an imp01iant

14

principle, and courts should not blithely apply public policy reasons to void contract provisions."

15

Kaufman v. Goldman, 195 Cal. App. 4th 734, 745 (2011) (internal quotations omitted). Last week,

16

the Court of Appeal observed that film and television producers routinely pay for "access" to a

17

'"story"' the "producers would not otherwise have[.]" De Havilland v. FX Networks, LLC, -- Cal.

18

App. 5th--, 2018 WL 1465802 (Mar. 26, 2018), at *8; see also Navellier, 29 Cal. 4th at 94.

19

3. Public Policy Supports The Freedom Of Prelitigation Communications

20

McDougal's "public policy" argument also is premised on receiving AMI's alleged "threats

21

oflegal action" to enforce its rights under the Agreement. Compl., ,r,r 101, 109. Even if they

22

occmTed, such "prelitigation communications" - far from violating general asse1iions of public

23

policy urged by McDougal-would be speech absolutely protectedfi"om liability under the

24
25
26
27

McDougal alleges that AMI "used" a "PR Firm" to "silence" her. Compl., ,r,r 66-73. The
Amendment states only that AMI would "retain the services of' PR professionals for a total of six
months beginning December 1, 2016. Id., Ex. B. Nothing in the Amendment required McDougal
to follow their advice. She was always free under the Amendment to "respond to legitimate press
inquiries," which she has done. Id. Moreover, the six-month period for which the PR professionals
were retained under the Amendment expired at the end of May 2017 - over 10 months ago. Id.
33

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SPECIAL MOTION TO STRIKE

1

litigation privilege, Civil Code ASS 4 7(b ), which supports the "broadly applicable policy of assuring

2

litigants 'the utmost freedom of access to the courts to secure and defend their rights."' Rubin v.

3

Green, 4 Cal. 4th 1187, 1193-95, 1203 (1993) ("policies underlying section 47(b)" barred claim for

4

injunctive reliet). 34 Public policy supports AMJ's right to engage in prelawsuit communications, not

5

McDougal's request to void contracts because of AMI's exercise of such rights.

6

4. Public Policy Favors AMl's Exercise Of Its First Amendment Rights
In Miami Herald, the Supreme Court rejected some of the same purported "public policy"

7

8

arguments advanced by McDougal here. Compl., ,r,r 101 -103. The court favored the First

9

Amendment-based "exercise of editorial control and judgment," which includes " [t]he choice of

10

material to go into a newspaper" and its "treatment of public issues and public officials-whether

11

fair or unfair," and disapproved a lower court's opinion that the right ofreply statute "enhanced"

12

free speech and "fmthered the 'broad societal interest in the free flow of information to the public. "'

13

418 U.S. at 245,258. The Court came to this conclusion over vigorous argument that the "First

14

Amendment interest of the public in being informed is said to be in peril because the 'marketplace

15

of ideas' is today a monopoly controlled by the owners of the market," and that the "'uninhibited,

16

robust' debate is not 'wide-open' but open only to a monopoly in control of the press." Id. at 251-

17

252. Public policy favors AMI's First Amendment right to make editorial judgments over

18

McDougal's private effort to take back the right to re-sell her story.

19

V.

20

CONCLUSION
AMI respectfully requests that the Comt grant its anti-SLAPP motion in full.

21

22

DATE: April 2, 2018
JEAN-PAUL JASSY
Counsel for Defendant American Media, Inc.

23
24
25
26
27

34

The "litigation privilege is absolute" - i.e. , if it applies, it does not matter "whether the A*
communication was made with malice or the intent to harm." Kashian v. Harriman, 98 Cal. App.
4th 892, 913 (2002). New York offers the same broad protections for prelitigation communications.
Front, Inc. v. Khalil, 24 N.Y.3d 713, 719-720 (2015) .

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SPECIAL MOTION TO STRIKE