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ARGUMENT

I. KANUN’S EFFORTS TO INJECT HIMSELF INTO THE CONTROVERSY,

HIS ACCESS TO EFFECTIVE MEDIA, AND THE FIRST AMENDMENT,

MAKE KANUN A LIMITED PURPOSE PUBLIC FIGURE.

The lower court erred when it held that Kanun was a private figure. This Court

should reverse. There are two classes of public figures: those who are considered public

figures for all purposes and limited purpose public figures (“LPPFs”). Ampex Corp. v.

Cargle, 128 Cal. App. 4th 1569, 1577 (1st Dist. 2005). An individual is an LPPF if (1) a

public controversy exists, (2) if the individual “injects” himself into that controversy, (3)

if his participation in the controversy is germane, id, and (4) if he has sufficient media

access. See Khawar v. Globe Intl., Inc., 19 Cal. 4th 254, 265 (1998). The lower court

erred when it ruled that Kanun did not meet the second and fourth requirements.

The lower court was incorrect when it held that Kanun did not inject himself into

a public controversy. Kanun displayed a myriad of attempts to inject himself into the

controversy surrounding Wright’s campaign. Kanun aggressively defended Wright’s

political platform in a chatroom, (R. 2), wrote and published two articles designed to

encourage the public to vote for Wright, (R. 3), and made a $200,000.00 donation to a

foundation headed by Wright, (R. 2). Similarly, the trial court was wrong when it held

that that Kanun did not have enough media access to rebut California Online’s (“COL”)

defamatory publications. Kanun’s access to the media was both extraordinary and

effective enough to counter COL’s allegations: Kanun controlled a monthly newsletter

and a website, giving him the ability to reach thousands of people. (R. 1-2.) In addition,

Kanun was prominent enough to attract interviews. By holding that Kanun was not an

LPPF the lower court not only misinterpreted the law, but trampled upon the freedom of

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speech. For these reasons this Court should reverse. The question of public figure status

is a question of law and should be reviewed de novo. Annette F. v. Sharon S., 119 Cal.

App. 4th 1146, 1159 (4th Dist. 2004).

A. Kanun injected himself into the controversy by aggressively defending

Wright’s platform, by encouraging other’s to vote for Wright, and by

bolstering Wright’s political visibility.

The lower court erred when it held that Kanun did not inject himself into the

controversy surrounding Wright’s campaign. The standard for injection has two

elements: an individual must “thrust” him to the forefront of the controversy and must

attempt to influence the results of the controversy. See Reader’s Dig. Assn. v. Super. Ct.

of Marin Co., 37 Cal. 3d 244, 254-255 (1984). When determining these factors, the

“totality of the circumstances” must be considered. Annette F., 119 Cal. App. 4th at

1164.

An individual who attempts to reach the public’s eye still thrusts himself into the

forefront of the controversy even if he fails to achieve any prominence. See Copp v.

Paxton, 45 Cal. App. 4th 829, 845-846 (1st Dist. 1996). For example, in Copp v. Paxton

an earthquake specialist passed out flyers, made a video, and spoke at an emergency

services council in order to convince other’s that schools needed better earthquake

contingency plans. Id. at 834. The specialist also tried, but failed, to organize a

conference where he could easily express his views to the public. Id. at 836. Despite his

failure to organize the conference, the court held that the specialist’s actions were a thrust

to the forefront of the controversy. Id. at 846.

Similar to the requirements for thrust, an individual injects himself into a

controversy by attempting to influence its results. See Rudnick v. McMillan, 25 Cal.

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App. 4th 1183, 1190 (2d Dist. 1994). One way an individual can attempt to influence a

controversy is by discussing the matter with the press. Id. In Rudnick v. McMillan, the

government was prohibiting a rancher from grazing his cattle. Id. at 1187. Hoping to get

his grazing rights back, the rancher invited two newspaper writers to his ranch and helped

edit an article condemning the government’s actions. Id. When one of the writers wrote

disparaging comments about the rancher’s land, the rancher sued for defamation. Id. In

the defamation suit, the court held the rancher attempted to influence the controversy by

soliciting the help of the two newspaper writers. Id. at 1190.

Managerial employees may be considered LPPFs for the actions of their

company. See Live Oak Publ. Co. v. Cohagan, 234 Cal. App. 3d 1277, 1290 (3d Dist.

1991). In Live Oak Publishing Co., Inc. v. Cohagan, a newspaper company conceded

that the company was an LPPF but sought separate treatment of its high ranking

employees. Id. The newspaper cited Vegod Corp. v. ABC, which states that “merely

doing business with parties to a public controversy does not elevate one to public figure

status.” Live Oak Publ. Co., 234 Cal. App. 3d at 1290 (quoting Vegod Corp. v. ABC, 25

Cal. 3d 763, 769 (1980)). Nonetheless, the court rejected the newspaper’s argument and

held the employees to be LPPFs. Live Oak Publ. Co., 234 Cal. App. 3d at 1290. The

court distinguished its case from Vegod by explaining that managerial employees do not

“do business” with their company but “operat[e]” their company Id.

When determining whether the voluntary injection test has been satisfied the

“totality of the circumstances” must be considered. Annette F., 199 Cal. App. 4th at

1163. For example, in Annette F. v. Sharon S., a court held that a woman, who had

previously drawn attention to her homosexual marriage, injected herself into the

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controversy surrounding her child’s custody hearings. Id. at 1165. The courts

willingness to consider the woman’s previous actions demonstrates that the court not only

looked at the woman’s immediate actions but at the situation as a whole.

This Court should find that Kanun attempted to inject himself into the controversy

surrounding Wright’s campaign. Kanun used several methods to attempt to thrust

himself to the forefront of the controversy, one of which was hijacking a chatroom that

400,000 people could view. (R. 2.) Whether or not 400,000 people actually witnessed

the chat is immaterial; California law only requires an attempt to reach the forefront of

the controversy. Kanun hijacked the chatroom by excluding the participation of everyone

but the chatroom’s moderator with whom Kanun heatedly debated. (R. 2.) Kanun’s

ardent defense of Wright’s campaign likely lasted several minutes because Kanun

defended Wright’s entire platform. (R. 2.) Through his aggressive and exclusionary

dialogue with the moderator, Kanun called much more attention to himself than would an

average chatroom participant. Although, Kanun did use the screen name “MaryJane,” (R.

2), it should be assumed that Kanun did not seek to keep his identity secret. Kanun’s true

identity is listed on his COL member profile, (R. 19), and the eighty-seven emails

following the chat, (R. 16), indicate that many chatroom participants realized who Kanun

was. These facts show that Kanun attempted thrust himself to the forefront by attracting

considerable attention in a chatroom open to 400,000 people. (R. 2.)

Kanun also attempted to reach the public’s eye by writing and publishing two

articles endorsing Wright’s campaign. (R. 3.) It should be assumed that Kanun wanted

as many people as possible to read the articles. Kanun published the articles in both his

newsletter and on his website, (R. 1), distributing his message to approximately 18,000

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people per month, (R. 1). This Court should consider an attempt to distribute pro-Wright

articles to some 18,000 people as an indication that Kanun attempted to thrust himself to

the forefront of the controversy.

Both Kanun’s participation in the chatroom and his distribution of the articles are

analogous to specialist’s thrust in Copp. In Copp, the earthquake specialist sought to

enter the public’s eye by participating in an emergency services council. A council is

similar to a chatroom: both consist of people who care enough about a topic to want to

discuss it. Additionally, the type of propaganda both men distributed are similar. Fliers

and articles are both written material meant to be distributed to large audiences of people

whom the author has never met. This Court should see both the chatroom and the articles

as sufficient evidence that Kanun attempted to thrust himself into the controversy.

The lower court also erred when it held that Kanun did not attempt to influence

the controversy surrounding Wright’s campaign. Kanun involved the press in a much

more significant way than did the rancher in Rudnick. In Rudnick the rancher involved

the press by merely inviting newspaper writers to his ranch, whereas Kanun wrote and

published two articles. (R. 3.) The facts suggest that these articles were not written with

the attempt to merely inform but to encourage readers to vote for Scott Wright. First, the

articles supported Wright’s candidacy and not just hemp. (R. 3.) Therefore, the articles

were not a mere attempt to promote hemp. Second, the articles were published on two

consecutive months. (R. 3.) One article would probably be sufficient to introduce

writers to Scott Wright, but multiple articles would be necessary to convincingly

demonstrate the value of Wright’s candidacy. This Court should find that the publication

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of multiple articles endorsing Wright’s campaign is an attempt to involve the press in

order to influence a controversy.

Kanun also attempted to influence the controversy by taking over the COL

chatroom with his aggressive defense of Wright’s platform. (R. 2.) The facts suggest

that Kanun entered the chatroom in order to influence the politically active of California.

For instance, Kanun indicated his desire to convince those who do not support the

legalization of marijuana by defending Wright’s entire platform and not limiting his

comments to marijuana. (R. 2.) Furthermore, COL’s chatroom was a particularly good

place to influence potential voters. People who choose to spend their time participating

and viewing COL’s political chatrooms are likely politically involved Californians, and

thus are more likely to vote in the gubernatorial election. Even though millions of people

live in California, relatively few California citizens vote in gubernatorial elections. M.

Baldassare, California’s exclusive electorate, http://www.ppic.org/ content/pubs/atissue/

AI_906MBAI.pdf (accessed February 27, 2009). Therefore, a chatroom full of potential

voters was an especially good forum. Although Kanun did not participate in the

chatroom for the first fifteen minutes, (R. 2), the facts show that Kanun entered the

chatroom to persuade others. Kanun had to take considerable efforts to ensure that he got

an interactive spot in the chat, because the chat was limited to the first thirty of 400,000

COL members to sign on. (R. 2.) If Kanun did not intend to express his political views

he could have easily viewed the chatroom as a nonparticipant. (R. 2.) It is improbable

that Kanun took the extensive efforts to ensure an interactive spot if he did not intend to

participate in the chatroom.

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Finally, Kanun attempted to bolster Wright’s campaign by donating $200,000.00

to a foundation headed by Wright. (R. 2.) The donation should be seen as Kanun’s

attempt to help Wright’s foundation flourish, thus bringing greater exposure to

foundation and in turn greater exposure to Wright.

Although Kanun made the donation and published the two articles through his

company, he is still deserving of a LPPF status. Live Oak set a precedent that managerial

employees can be considered LPPF’s for the actions of their company. Like the

employees in Live Oak, Kanun did more than just do business with his company – he

owned it. As the owner, Kanun made the ultimate decision whether to publish the

articles and make the donation. Additionally, allowing Kanun to hide behind his

company’s name would incentivize other business men to use their companies as shields.

When the totality of the circumstances is considered it becomes evident that

Kanun took every opportunity to promote Wright’s campaign. Within the space of a few

months Kanun aggressively defended Wright’s policies in a chatroom, (R. 2), wrote and

published two articles in a newsletter and on the internet, (R. 3), and made a considerable

donation to one of Wright’s foundations, (R. 2). Although it may be argued that one of

these actions might not satisfy the injection standard individually, collectively Kanun’s

actions are more than adequate. Furthermore, looking at the situation in its entirety

reveals that Kanun had reason to inject himself into the controversy. If elected, Wright

plans to legalize marijuana. (R. 2.) By Kanun’s own account the legalization of

marijuana would cause his hemp business to double. (R. 18.) Accordingly, Kanun had a

lot to gain by helping Scott Wright win the gubernatorial election. For these reasons this

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Court should overturn the lower court’s decision that Kanun did not inject himself into

the controversy.

B. Kanun’s access to the media was extraordinary and effective enough to

rebut California Online’s publications.

The lower court erred when it ruled that Kanun lacked sufficient media access.

An individual has sufficient media access if he enjoys more media access than a private

person and if he has enough media access to effectively defend his reputation against

defamatory falsehoods. See Khawar, 19 Cal. 4th at 265. Kanun’s extraordinary and

effective media access meets this standard.

An individual has superior media access if his access is “regular and continuing.”

Hutchinson v. Proxmire, 443 U.S. 111, 136 (1979). For example, in Hutchinson v.

Proxmire, a professor sued a U.S. senator who accused him of wasting tax dollars. Id. at

115. At trial, the senator argued that the professor’s access was above average because

newspapers had covered the professor’s response to the senator’s accusations. Id. at 134.

The Court was not persuaded by the senator’s arguments. Id. at 136. It reasoned that the

professor’s media access was insufficient because it was limited to responding to the

senator’s comments and therefore not regular and continual. Id.

However, sufficient media access does not require an individual to be able to

undo the harm of the defamatory statement. Gertz v. Robert Welch, Inc., 418 U.S. 323,

344 (1974). In fact, in the majority of cases the victim of a defamatory falsehood is not

able to completely restore his good name. Id. Despite this inadequacy, the Court has

held that individuals who have a “realistic opportunity” to rebut falsehoods may still be

considered public figures. Id. Therefore, a “realistic opportunity” to rebut defamatory

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statements is merely the ability to use available opportunities to minimize the false

statement’s impact on one’s reputation. See Id.

Khawar v. Globe International, Inc., provides a good example of a person who did

not have a realistic opportunity to rebut a defamatory statement. See 19 Cal App. 4th at

265. In Khawar, a book was written accusing a free lance photographer of being Robert

Kennedy’s assassin. Id. at 261. The photographer was never interviewed and was never

given the opportunity to publicize his own views about the assassination. Id. at 266. Not

surprisingly, when the photographer sued the book’s publisher for defamation, the court

held that the photographer did not have enough media access to rebut the defamatory

statement. Id. at 265.

The lower court erred when it held that Kanun did not have sufficient media

access. Kanun’s access to the media was far superior to that of a private individual’s. As

the owner of his company, Kanun had access to his company’s newsletter and website,

giving him the ability to reach some 18,000 people every month. (R. 1-2.) Additionally,

Kanun was likely prominent enough to attract interviews with news stations – as

evidenced by his interview with COL. (R. 17.) This ability to request interviews and the

power to reach 18,000 people a month is far more media access than that which private

individuals enjoy.

Kanun’s media access is also regular and continuous. Kanun consistently

accessed the media for several months: In February, COL published their interview with

Kanun, (R. 17), in March and April, Kanun published two articles supporting Wright, (R.

2), and in May, Kanun aggressively defended Wright in a public chatroom, (R. 2). This

repeated self-initiated access to the media is superior to the access enjoyed by the

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professor in Hutchinson. In Hutchinson, the professor’s only access was limited to

responding to the senator’s comments. Here, Kanun repeatedly exercised his media

access over the course of several months. Therefore, this Court should hold that Kanun’s

media access was superior to that of a private individual’s because of its regular and

continual nature.

Not only was Kanun’s media access superior but it was sufficient enough to rebut

COL’s allegations. Kanun’s had several opportunities to minimize COL’s false

statement’s impact on his reputation. First, Kanun could have promptly denied the

allegations in the chatroom. The COL chatroom should be considered a form of media

because it was accessible by hundreds of thousands of people, (R. 2), and was being

moderated by a news writer, (R. 2). It is unlikely that COL would have published their

article “Gay Elite Invade Campaign Chat” if the chat contained evidence that the

chatroom moderator had incorrect facts because publishing blatantly untrue articles could

damage COL’s credibility. At the very least, if Kanun had responded to the moderator’s

comments he could have minimized the damage done to his reputation by reaching those

present in the chatroom.

Kanun also could have minimized the impact of COL’s statements by publishing

a statement that he was not a homosexual. Kanun’s publications reach some 18,000

people per month, (R 1-2), and likely reach the majority of Kanun’s customers. Such a

statement would surely minimize the number of Kanun’s clients who believed COL’s

allegations. Kanun’s publications are applicable to the court’s decision in Live Oak. In

Live Oak, the court held that newspapers are “uniquely possessed” of the ability to rebut

allegations. 234 Cal. App. 3d at 1290. Kanun’s newsletter and website are remarkably

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similar to a newspaper – both mediums are published and distributed to unknown readers

with the intent to inform and persuade. This Court should follow Live Oak’s precedent

and hold that Kanun could have used his publications to rebut COL’s allegations.

Khawar also indicates that Kanun had sufficient media access. In Khawar, the

court held that a free lance photographer did not have sufficient media access because he

was not interviewed nor did he have the opportunity to publish his own views. In

contrast, Kanun had the opportunity to do both. As previously explained, Kanun was

likely prominent enough to attract interviews and had the ability to publish his views in

his company’s website and newsletter. For these reasons this Court should hold that

Kanun’s media access was both substantial and effective and should reverse the lower

court’s decision.

C. A holding that Kanun is not an LPPF would be contrary to Gertz and

would force the public into a state of intolerable self-censorship.

Kanun deserves to be treated as a LPPF because he is not the type of individual

that the courts are meant to protect. In the landmark decision Gertz v. Welch, Inc., the

Court laid out two reasons why public figures should be held to a lower standard. See

418 U.S. at 345. Public figures have more opportunities to rebut allegations, but more

importantly, public figures are more deserving of relief because they did not expose

themselves to the risk of injury from defamatory falsehoods. Id.

Kanun deserves to be treated as a public figure because he meets neither of the

considerations set forth by Gertz. As previously discussed, Kanun had several

opportunities to rebut COL’s allegations. More importantly, Kanun is not deserving of

relief because he exposed himself to injury. Kanun exposed himself to injury by entering

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COL’s chatroom and openly and publicly contradicting everything that the moderator

said. (R. 2.) For what were likely several minutes, Kanun prevented anyone from

defending their beliefs. By aggressively contradicting the moderator Kanun exposed

himself to the question of why he was so adamant about defending Wright’s campaign.

The alleged defamation only occurred when COL provided an injurious answer to this

question by insinuating that Kanun was homosexual seeking appointment to Wright’s

cabinet. (R. 2.) Accordingly, this Court should find that Kanun is an LPPF, because he

put himself in a position where he was likely to be exposed to defamatory falsehoods.

Kanun should also be considered an LPPF because he used his influence to

determine a political issue. The primary purpose of the first amendment was to ensure

that political issues receive “uninhibited, robust and wide open” discussion. Kaufman v.

Fid. Fed. Sav. & Loan Assn., 140 Cal. App. 3d 913, 919 (4th Dist. 1983). Thus, speech

that arises from directly from political discussion deserves a higher level of protection.

Id. Even non-truths uttered in the political realm deserve protection so that the people do

not fall into a state of intolerable self-censorship. Id.

A holding that Kanun, and other influential and politically involved persons, are

private figures would cripple political discussion and force the public into a state of

intolerable self-censorship. Private individuals have a lower defamation standard, see

Gertz, 418 U.S. at 343-346, making it easier for them to succeed in lawsuits. The fear of

lawsuits would force anyone who wants to be involved in politics to guarantee the

accuracy of any comment regarding a political rival. Furthermore, the fear of lawsuits

would force companies like COL to necessarily hesitate before exposing political

corruption. This type of self-censorship is directly contrary the spirit and purposes of the

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first amendment. Accordingly this Court should protect the people’s right to free

political discussion by holding Kanun to be an LPPF.

Conclusion

Based on the foregoing reasons, this Court should reverse the trial court’s

conclusion that Kanun is a private individual and should hold that he acted as a limited

purpose public figure.

Respectfully Submitted,

_____________________

M. Adam Tate

Counsel for Appellee