Tara Reid’s (who accused President Biden of sexual assault) lawsuit against the NY Times dismissed

From Reade v. NY Times Co.decided Friday by Judge William Shub (ED Cal.):

Plaintiff Tara Reed brought this action against defendant The New York Times Company, challenging the defendant newspaper’s alleged publication of a photograph containing her social security number. New York Times ….

During the 2020 United States presidential campaign, Plaintiff publicly accused then-candidate Joe Biden of sexually assaulting her in the 1990s while Plaintiff served in the United States Senate. The times investigated the claimant’s allegations and, to substantiate them, the claimant provided times with a photo of her federal ID from her time in the Senate. This ID card included what turned out to be the upper portion of the claimant’s social security number.

The times published an article regarding the plaintiff’s allegations in April 2020 that included a photo of her ID, even though the plaintiff did not specifically provide times consent to publish photo. The times removed the photo about nine hours after the plaintiff requested its removal. The plaintiff claims the photo was viewed thousands or millions of times before it was removed, and that since then there have been hundreds of attempts to steal her identity using her social security number. …

The court concluded that Cal. Civil Code § 1798.85—”a person or entity shall not . . . [intentionally communicate or otherwise make available to the general public] in any way a person’s social security number”—does not create a private right of action:

Because § 1798.85 did not contain “plain language” indicating that a cause of action existed, the court turned to the legislative history. To establish the existence of a cause of action, the legislative history must offer “a clear indication that the Legislature intended to create a private cause of action under the statute.” …

[P]The plaintiff refers to two parts of a report on the law of the Banking and Finance Committee of the Assembly. She first points to the report’s statement that the law represents a “modest effort to allow the victim to confidently deal with the consequences of identity theft.” Although this statement implies the Committee’s view that the law can assist victims of identity theft in dealing with the effects of such theft, its meaning becomes clearer when read in the context of the second part cited by the claimant. There, the committee recommended that “the author of the bill . . . consider specific causes of action and monetary penalties for violations” and that those penalties include “costs and attorneys’ fees of the prevailing plaintiff.” This language clarifies the commission’s understanding that the statute, as written, does swimming provide a cause of action for violations, hence the Committee’s recommendation that one or more causes of action be added. This recommendation was never adopted.

In light of these statements, this Court cannot conclude that the report’s vague reference to victims “persuasively addresses ․[ing] with the consequences of identity theft” constitutes “a clear indication that the Legislature intended to create a private cause of action under the statute.” Similarly, that the report lists the projected “fiscal effect” of the statute as “None” provides too weak an inference for an intent to create a cause of action for the court to recognize it here. Although plaintiff argues that the lack of projected fiscal impact indicates that the Legislature did not intend the state attorney general to enforce the law and that individuals whose Social Security numbers are published, therefore should be able to apply the law themselves, (Op. at 11 (Doc. #15)), this rationale is too speculative to constitute a “clear indication” of legislative intent. Moreover, it appears that the Solicitor General did attempt to enforce this statute in at least one instance, through an action brought under the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, indicating that a means of enforcement g the law actually exists.

Plaintiff also cites an unpublished decision of the California Supreme Court, Skylight Advisors, LLC v. Makes 1-25 (Cal. Super. Ct. 2021), … in arguing that a cause of action exists. There, the court stated that, “[a]under the correction statute, the Court held that there was a clear intent to permit a private right of action” in § 1798.85. However, this conclusion was expressly qualified by the Court’s statement that “[n]o secured party[d] The court with the complete legislative history, including what the legislative analyst or counsel has stated [the existence of a] claim (if any)” and that “the Court [was] open to persuasion on this point at a later stage of the proceedings, perhaps with a better recitation of the legislative history.” This discussion makes it clear that this Court has not considered the legislative materials that this Court has reviewed. Skylight Advisors is therefore inconclusive.

The court also concluded that the plaintiff had not sufficiently alleged that times “intentionally” revealed the social security number:

The court reviewed an unredacted image of the photo, which the court separately ordered sealed, and it is not at all apparent that the number is actually a social security number. Only the top half of the numbers are visible on the bottom of the image, and it’s not even clear what the numbers are. The two dashes that normally separate the numbers are also missing from the picture. The mere fact that Defendant has a practice of reviewing photographs before posting them online does not plausibly suggest that the inclusion of a portion of Plaintiff’s social security number was intentional…. [C]we are not bound to accept as true statements which are merely … unwarranted inferences of fact[ ] or unreasonable conclusions”…

There is no conjecture as to how defendant would have known that portions of what appeared to be numbers on what was presented as plaintiff’s identification badge as an employee of the United States Senate were actually her social security number. Moreover, the complaint does not even state categorically that the publication of the social security number by the defendant was in fact, intentionally, but rather argues that the post may instead have been reckless. Because the statute specifies that intentional display or distribution is required, recklessness is insufficient….

The court also rejected a claim for public disclosure of private facts in California, concluding that it generally applies only to “intimate details of [a] personal life of the claimant” that are “embarrassing, uncomplimentary, discrediting, obscene, humiliating or reprehensible”:

In short, this court concludes that under existing California law, to state a claim for public disclosure of private facts, a plaintiff must allege disclosure not only of facts she would prefer to keep secret, but rather of private facts, which reach such a level as to be characterized as embarrassing in nature which would adversely affect her personal or professional reputation if disclosed. Personally identifiable information such as a Social Security number, by itself, clearly does not qualify because it does not reveal anything about the individual’s conduct or private life that would adversely affect his reputation if it became known to others.

And the court rejected Reade’s negligence claim because such claims typically require physical harm to the plaintiff or the plaintiff’s property, not just emotional or financial damages. “Precedent also finds that allegations of “increased risk of identity theft,” by themselves, are insufficient to show actual damages” recoverable in a negligence case.

In the end, the court agreed times‘ anti-SLAPP motion (which would require Reader to pay timesattorney’s fees); the Ninth Circuit has held that California’s anti-SLAPP statute can be applied in federal cases:

“A court considering a motion to strike under the anti-SLAPP statute must engage in a two-part inquiry.” The defendant must first demonstrate “that the plaintiff’s claim arose out of an action by the defendant made in connection with a public issue in furtherance of the right to the defendant’s freedom of speech under the United States or California Constitution.” “The burden then shifts to the plaintiff,” who “must show a reasonable likelihood of prevailing in ․ [her] claims for those claims to survive dismissal.”

When an anti-SLAPP motion challenging the legal sufficiency of a claim is made at the pleading stage, the second part of the analysis is identical to the analysis performed in evaluating a motion to dismiss under Rule 12(b)(6). Accordingly, when a court concludes that a plaintiff’s complaint does not meet the 12(b)(6) standard, the only question remaining is whether the claim arises out of “an action by the defendant made in connection with a public problem in furtherance of the defendant’s right to liberty the word.”

Such “conduct” includes, as relevant here, “any written or oral statement or writing made in a place open to the public or a public forum in relation to a matter of public concern” and “any other conduct in furtherance of the exercise of constitutional right of petition or the constitutional right of free speech in relation to a public problem or matter of public concern.” “[P]public affairs’, in turn, include ‘statements about a person or entity in the public eye’ and ‘a subject[s] of widespread public interest.” …

The publication of the photograph, which the plaintiff voluntarily provided to the newspaper, which she knew intended to write a story about her, was clearly on a public issue in support of the newspaper’s constitutional right to free speech…. Moreover, in the article in which the photo was published, on times reported the plaintiff’s allegation that a leading candidate for the presidency of the United States had sexually assaulted her. Such an allegation would certainly be of interest to a considerable number of people.

Plaintiff contends that the article could have told the story just as effectively without the photo or if the editors had omitted the digital segments at the bottom of it. First, because Plaintiff submitted the photo with a partial number visible underneath times, she probably agreed that both the photo and the numbers had something to do with the article, as they corroborated her claim that she worked for the Senate. More importantly, the test is not whether the article could have been written or presented differently, but rather only whether the defendant has shown that his actions were “in furtherance of” his constitutional right to free speech in relation to a public problem.

Congratulations Times’ attorney Al-Amin Shiraz Sumar and to Kanika D. Corley of Akerman LLP, who successfully represented times.

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