Pointing Out Possible Hypocrisy by a Self-Claimed Sextortion Expert Protected by Anti-SLAPP Laws–Backlund v. Stone

[Post by Venkat Balasubramani]

Backlund v. Stone, B235173 (Ca. Ct. App.; Sept. 4, 2012)

When is it OK to tweet a threat to expose seminude photographs of a teenage girl? When you’re a law student? When you’re a self-professed expert on “sextortion”? The answer is: in neither case (if you answered “never,” you’d be right as well).

This is a crazy case involving Christopher Stone, “an aspiring lawyer in his 30’s,” and Alyssa Backlund, who in 2010 was a teenager (it also involves Gawker tangentially; we’ve posted about a few cases involving Gawker, most recently Redmond v. Gakwer).

In addition to being an aspiring lawyer, Stone claimed to be an expert on sextortion. Stone ran a website (stickydrama.com – now down) where he posted a lewd image of a minor female masturbating next to an infant. While the photo was not of Backlund, Stone posted Backlund’s contact information with the image. Separately, Backlund allegedly sent repeated messages to one of Stone’s houseguests. Stone did not take kindly to this and sent a tweet stating:

[m]essage him again, and your floppy titties are spammed all over the place. Last warning.

After Stone sent this tweet, Backlund was interviewed by Adrian Chen of Gawker. Chen’s article initially stated that Stone engaged in “sextortion” by threatening to expose a photo of the underage Backlund, but was later corrected to indicate that Backlund was 18 when the photo referenced in the tweet was taken. Chen referenced the tweet in the article, and also quoted a Fox News report featuring Stone, where Stone warned against the dangers of sextortion. [Chutzpah alert!]

Backlund’s complaint against Stone: This is not relevant to the present motion, but Backlund filed a complaint against Stone for defamation and false light. Stone moved to strike Backlund’s complaint as a SLAPP. He argued that he did not disclose any private facts by posting it. He also argued that he corrected the error in his identification of Backlund as soon as he was apprised of it. (Probably not the best choice of words, but his follow up post was titled “Alyssa Marie Buckland [sic] is Not the Most Vile Camwhore Alive.”) Anyway, the court denied Stone’s motion to strike, finding that “posting child pornography is not protected free speech.” Stone did not appeal this ruling.

Stone’s complaint against Backlund: Stone sued Backlund for defamation and intentional infliction of emotional distress. Backlund moved to strike under the anti-SLAPP statute. The trial court denied the motion, finding that the crux of Backlund’s complaint was not the “public-interest topic of ‘sextortion’,” but Backlund’s own comments regarding her experience with Stone. The trial court said that Stone’s defamation complaint involves a “private controversy,” and does not implicate the anti-SLAPP statute. Backlund appealed this ruling, and the court of appeals reverses…and bench-slaps Stone in the process.

Does Stone’s complaint come within the Anti-SLAPP Statute? The appeals court looks to the anti-SLAPP statute and the two possible bases for the motion to strike: (1) the statement was made “in a place open to the public or a public forum in connection with an issue of public interest” and (2) the defamation claim is based on conduct in furtherance of Backlund’s right to free speech in connection with an issue of public interest.

The court says that Gawker is a public forum, noting that it’s an internet news site and citing to Stone’s own admission that the articles about him were “viewed by thousands of people.” The key question was whether Backlund’s statements were a matter of public concern. The court says yes, noting that Stone injected himself into the public consciousness on the topic of sextortion by portraying himself as an expert (by doing this, “he voluntarily subjected [himself] to inevitable public scrutiny and public ridibule by the public and the media.”). The Gawker article contributed to public discussion on the topic of sextortion and Stone’s own role as an expert. In fact:

publicity about Stone’s threats and Backlund’s resulting fear of Stone provide a cautionary lesson to the youthful readers of Gawker, who might read Chen’s article and decide not to upload nude images of themselves, lest the images fall into the wrong hands and pose the risk of public humiliation in front of countless people.

Yikes.

Does Stone demonstrate a probability of prevailing on the merits? Having concluded that Backlund satisfied the first prong of the anti-SLAPP analysis, the court shifts the burden to Stone to show that he is likely to prevail on the merits. And he fumbles. The court says that he forfeits this prong because he failed to “make [any] argument on appeal to establish that he is likely to succeed on the merits.” He submitted a declaration, but the court dings him because the declaration did not state under penalty of perjury of the laws of the State of California that its contents were true. Because he’s a public figure (in the context of the sextortion discussion), he’s required to show actual malice, and neither his unverified complaint nor his deficient declaration get him there. The court also notes that while Gawker published three separate articles about Stone, Stone chose not to sue Gawker and instead “focused on a teenager to whom he admittedly sent a threatening message. . . . Given Stone’s scurrilous and outrageous behavior toward young women, he cannot be heard to complain when confronted by one of his victims.”

__

Yowza. It’s tough to see what Stone’s hook for the defamation claim would have been. He claimed that Backlund’s statements were false because (1) the topless photograph of Backlund was taken when she was 18 (and not underage); (2) his tweet did not include a link to the image of Backlund; and (3) he didn’t “continue to threaten Backlund with posting the picture,” or make similar threats against others. It’s unclear whether the age discrepancy came from Backlund or from Chen, but this isn’t really the crux of the Gawker story, which was that Stone wasn’t the credible expert protecting others against sextortion that he claimed to be: “StickyDrama’s Christopher Stone Is a ‘Sextortion’ Expert in More Ways Than One.” There’s no dispute that he tweeted the threat to expose risqué images of Backlund. Res ipsa loquitur dude.

The case is interesting for a couple of reasons.

First, it affirms that discussions taking place on blogs and online forums are public forums for purposes of the SLAPP statute. A related point is that people who inject themselves into the social sphere will have a hard time arguing non-public figure status. Both points could come in handy for defamation defendants.

Second, the bench-slap. The court is not impressed with Stone. It also drops a footnote telling him that his internet activities are “abusive, unethical, demonstrate a manifest lack of maturity, discretion and good judgment, and mandate a thorough investigation into his fitness for state bar membership.” To the extent he seeks to practice law in California, he is required to provide a copy of the opinion to the State Bar.

Finally, Stone’s poor judgment and over-reach came back to haunt him. As a self-professed expert on sextortion, he should steer clear from any activity that’s even in the same universe, much less the same ballpark. His Tweet ran afoul of this. Additionally, the fact that he didn’t go after Gawker or Chen but instead went after a hapless teenager/young adult was something the court picked up on.

Related posts:

Using Links as Citations Helps Gizmodo Defeat a Defamation Claim–Redmond v. Gawker Media

Lawsuit Against Avvo for Lawyer’s Profile Dismissed as SLAPP–Davis v. Avvo

Ninth Circuit Upholds Anti-SLAPP Ruling for Blogger/Griper–Sedgwick v. Delsman

Satirical Anti-Birther Blog Post Protected by DC’s Anti-SLAPP Law–Farah v. Esquire

CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern

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