California law prohibits a lawsuit which is designed to chill the exercise of acts in furtherance of the right of free speech about matters of public interest.  That lawsuit is called a “SLAPP”, an acronym for “Strategic Lawsuit Against Public Participation,” and the California law is called the “anti-SLAPP statute.”

But what happens when a defendant contends that a court can’t consider what would otherwise be a routine lawsuit involving a breach of contract, because the lawsuit is really about First Amendment issues and is therefore a SLAPP?  That was the question presented to the California Court of Appeal in a recent case (Li v Jenkins.)

Early in 2018, actress and producer Kelly Mi Li had an idea for a TV program, which she presented to Jeff Jenkins, a producer with a long string of successes in reality television.

Li’s concept, inspired by the movie “Crazy Rich Asians,” was for a series about wealthy Asian-Americans living in Los Angeles.

It eventually became “Bling Empire,” which ran for three seasons starting in 2021 and produced a spinoff, “Bling Empire: New York.” Court documents describe it as “one of the most-watched reality, docu-follow television series on Netflix.”

On May 2, 2018, Li and Jenkins signed an agreement to develop and produce the project. The two worked together for several months developing the concept, while Li identified most of the principal cast members.

The agreement said Jenkins would be executive producer, while Li would get the same title if the buyer of the program approved. It also spelled out the fixed fee and contingent compensation Li would receive; these were structured as percentages of the fees Jenkins would receive.

Things did not go smoothly, and in April of 2022 Li sued Jenkins and other defendants involved in the project. She alleged that they failed to provide her with the opportunity to perform as an executive producer, excluded her from key decisions, and did not compensate or credit her as specified in their agreement.

Li claimed that it was only because of the defendants’ alleged material misrepresentations and omissions that she gave them access to her materials, participated in the development and production process, and “acquiesced to the sale of her property to Netflix.”

Jenkins and the other defendants responded with an anti-SLAPP motion, asking the court to dismiss Li’s lawsuit on the ground that it implicated free speech rights.

In the context of disputes involving free speech, a court must determine, among other things, whether an issue of public interest is implicated.  That requires the court to consider the content of the speech itself.

If the court decides that a public interest is implicated, the court must then decide whether a “functional relationship” exists between the speech and the public conversation about some matter of public interest.

The defendants argued that the lawsuit had to be dismissed under the anti-SLAPP statute, because Li’s claims were all related to the creation of the TV program, an activity that involved free speech.

Furthermore, they said, the series provided “a unique view of Asian-Americans and the issues they face as they navigate life in Los Angeles,” and thus was “helping to start new conversations about what Asians can look like or be doing on TV.”

Beneath the “glitz and gossip” of the series, they said, was “a commentary on class in America, an exploration of the tensions inherent between assimilation and heritage, and an education in the ethnic nuances of East Asian high society in Los Angeles.”

Li’s lawsuit was not merely a contract dispute, the defendants’ attorneys argued, but a threat to discussion of an important issue of public interest.

The trial court agreed with the defendants that a public interest was implicated in the creation and development of a popular television series which focused on the lives of young, wealthy Asian Americans and the issues that they face.

But it denied the defendants’ motion, on the ground that no functional relationship existed between the challenged conduct — the decision to exclude and not compensate Li as an executive producer – and the implicated public interest.  The defendants then appealed.

The appellate justices agreed with the trial court, noting that, when considering if a dispute involves matters of public interest, “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.”

Li’s claims involved her screen credit and compensation on a TV series. The breach of contract dispute “did nothing to contribute to public discussion of the program or the themes it presents.”

The justices affirmed the lower court’s order denying the anti-SLAPP motion. Li was awarded her costs on appeal.

By David Krol