FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

L EAH M ANZARI , PKA Danni Ashe,

Plaintiff-Appellee

,

v.

A SSOCIATED N EWSPAPERS L TD .,

Defendant-Appellant. No. 14-55329

D.C. No. 2:13-cv-06830- GW-PJW

OPINION

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted February 12, 2016

Pasadena, California

Filed July 25, 2016

Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeownM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 2

SUMMARY *

Def am ation /Calif

ornia’s Anti-Strategic Law suit Against P ublic P a rticipation Statute

The panel affirmed the d istrict c ourt’s order deny ing the Associated Newspapers L td.’s motio n to strike a complaint pursuant to California’s anti-Strate g i c L a w s u i t A g ainst Public Participation statute, in an action a lleg ing defamation by L eah Manz ari, a pioneer in the online adult entertainment industry and famous under her professional name, Danni Ashe.

Manz ari alleg ed that Associated News L td., in its online tabloid newspaper, the Daily Mail Online, used a photog raph of her to convey the defamatory im pression that she h ad
test ed positive for HI V. T he panel ag reed with the district
court that, at this stag e in the litig ation

, M anz a ri h ad presented sufficient evidence to move forward with her claim that Daily Mail Online employ ees a cted with ac t u a l malice when they published a

n article imply ing that Manz ari w as an HI V-positive sex worker.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 3

COUNSEL

Katherine M. B olg e r (arg ued), L evine Sulliv a n Koch & Schulz

, L L P, New York, N ew York; L ouis P. Petrich, L eopold, Petrich & Smith PC, L os Ang eles, California; for Defendant-Appellant.

Steven L

. W e i n b erg (arg ued), W e in L aw Group, L L P, L os Ang eles, California, for Plaintiff-Appellee.M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 4

OP INION

MCKEOW N, Circuit J udg e:

A p icture is worth a thousand words. A photo gr ap h

, e s pecially when coupled with tex t, can convey a powerful
messag e: in this case, a potentially d efamatory one. L eah Manz ar i

, famous under her professional name, Danni Ashe, for her g roundbreaking wo r k in monetiz ing online
pornog raphy

, claims that the D ai l y Mail Online, an online

news outlet, used a p h o t o gr a ph of her to convey the defamatory

impression that she had tested positive for HI V.

Defamati o n claims, which arise out of state law, a re sig nificantly cabined by th e F irst Amendment, especially when the plaintiff is a public fig ure, like Manz ari. I n order to prevail, Manz ari must show that the D a ily Mail a cted with actual malice. Defamation by implic a t i o n claims pose an additional hurdle: Manz ari must first show that the article is reasonably understood to imply the defamat o r y statement, and she must then show that the Daily Mail pu b l i shed the article with knowledg e o f the fal s e implication or reckless disreg ard for the truth of what the article implied. This case

comes to u s as an interlocutory appeal unde r C alifornia’s anti-SL A PP statute. Cal. Civ. Proc. Code § 425.15. W e ag ree with the district court that, at this stag e in the litig ation, Manz ari has presented sufficient evidence to m o v e forward with her c laim that the Daily Mail Online emplo y e e s a c ted with actual m a l i c e when they published the article imply ing that Manz ari was an HI

V-positive sex worker.M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 5

B A C K G R O U N D

As we e x plain b elow, w e st a t e the facts, from the pleading s and evidence p r esented, taken favorably t o the plaintiff. M a n z ari is a pioneer in the online adult entertainment industry

. Her website w ww.Danni.com, which she desig ned and launched in 1995, beg an g enerating multimillion dollar r evenues in the early 2000s. During this time, “Danni Ashe” was one o f the most well-known and p o pular soft-core p orn actresses in the world, as well a s a h i g hly successful entrepreneur, with one of the most visited websites

on the W eb. She retired from the adult ente r t a inment industry in 2004 and sold www.Danni.com, but the website remains active under that name.

Associated News L td. publishes the Daily Mail, a popular United K ing dom-based tabloid newspaper, which also has an online version known as the Daily Mail Online (collectively the “Daily Mail”). I n 2013, the Daily M a i l O n l ine ran an article covering the shutdown of the L os Ang eles-area porn industry caused by a female performer t e s t i ng positive for HI V. The headline read: “PORN I NDUSTRY SHU TS DOW N W I TH I MMEDI ATE EF F ECT A F TER ‘F EMAL E PERF ORMER’ T ESTS POSI TI VE F OR HI V.” After a few lines of tex t, the article contained a picture o f Manz ari ly ing
sug g estively across a bed with “I n B ed With Danni” written in neon l i ghts behind her. Under her photog raph was the caption: “Moratorium: The porn industry in California was shocked on W ednesda y b y the announcement that a performer had tested H I V positive.” The article sta t e d t h at the actress was “new to the industry ” and that “the performer

was n ot immediately identified.” L ater in the article were two other p hotog raphs, but not of Manz a ri. O ne photog raph

a p p e a rs to show a n aked woman, whose face is not visi b l e,M ANZARI V

. A SSOCIATED N EWSPAPERS

6

leaning against a stripper pole. The other picture shows an unidentified couple being photographed while lying on a couch.

The beginning of the article appeared as follows; we have redacted Manzari’s face:M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 7

I mmediately after the s t o ry was published, Manz ari’s attorney sent the Daily Mail Online a cease and des i s t l e tter insisting that it remove Manz ari’s photog ra p h f rom the article. The Daily Mail complied. According to Manz ari, b y t h en the damag e was done—the article had been sy ndica t e d and “quickly spread a cros s t h e g lobe via the I nternet a nd within minutes, could be seen as far a s East A frica a nd I ndia.” Manz ari provided ex amples of Goog le searches a nd other search results revealing thumbnails that show o nly the h e a dline coupled with h e r photog raph, without a n y

ex p lanatory

tex t.

Manz ari broug ht a lib e l a n d false lig ht suit ag a inst the D a i l y Mail under California law, which she filed in feder al
court u n d e r diversity jurisdiction. 28 U.S.C. § 1332(a)(2). The complaint soug h t three mil l ion dollars in damag es to Manz ari’s b u siness and reputation. Manz ari contends that the jux taposition of her imag e with the ex p l osive headline a nd caption convey ed the impression that she is the performer who tested positive for HI V. Manz ari’s c l a i m t hat she does
not and has never had HI V is n ot contest e d

. I nstead, the Daily Mail responds that the article made no such implication and tha t , in any event, it did not intend to convey the impression that the a

rticle was ab o u t M anz ari, but instead simply chose a stock photo to illustrate the article.

The a rt i cle’s author, Daily Mail Online journalist J ames Ny e, claims that the name of t h e performer who tested positive f o r HI V was unknown. To illustrate the article, Ny e asked the Daily Mail Online’s photo desk to supply him with “some pictures represen tative of the pornog raphic film industry that

. . . contained no nudity .” H e s e l e cted three “s t o c k ” photog raphs, including the one of Manz ari, that “clearly convey ed the concept of the pornog r a p hic filmM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 8

industry

, showing a c amera near a woman on a b e d in ling erie.” J ack F orbes, the assistant photo editor who initially selected the photog rap h s from the Corbis I mag es database, stated that he included the photog raph of Manz ari because it was a “g ood, non-obscene photog raph to illustrate a n article about the p ornog r aphic f i l m industry .” According to Manz ari, the Corbis database included the following information with the photogr a p h : “Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the I nternet in o n e of her studios in L os Ang eles in 2000
, ” al t h oug h this information was not included in the article.

The Daily Ma i l moved to strike Manz ari’s complaint under the California a

nti-Strateg ic L awsuit Ag a inst Public Participation statute (“anti-SL APP”), Cal. C i v. Proc. Code § 425.16, on the g round that the defamation suit targ e ted the

news outlet’s protected ex ercise of f r ee speech and that Manz ari could not show a probability o f prevailing o n the merits of her claim. The California an ti-SL APP statute was passed to combat “a disturbing incre a s e in lawsuits broug ht primarily to chill the valid ex e rcise of the constitutional rig hts of f r eedom o f speech a

nd petition for the redress o f
g rievances.” Id

. § 425.16(a); see also id. § 425.16(b)(1) (“A

cause of act i o n aga inst a person arising from a ny act of that person in furtherance of the person’s rig ht of petition or free speech u nder the United States Constitution or the California Constitution in connection with a public issue shall be subject
to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”).

The Daily Mail arg ued that, as a public fig ure, Manz ari would be unable to prove that the news outlet had acted withM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 9

actual malice when it published the article. The district court denied the anti-SL APP motion to strike, concluding that even if Manz ari were a p u blic fig ure, “having considered the totality of the choice s an d admissions made b y the Mail Online’s staff,

. . . a jury could reasonably conclude that those

w h o c r e a t e d the Article intended to convey t h e impression—known by them to be false—that Plaintiff tested positive for HI V.”

A N A L Y S I S

This c ase arises from an interlocutory appeal of the district court’s denial o f the Dail y Mail’s motion to strike. Denials of Califo r n ia anti-SL APP motions are appealable orders b e cause the statute operates as a n immunity from suit, rather than as a defense. DC Comics v. P ac. Pictures Corp.
, 706 F .3d 1009, 1015 (9th Cir. 2013). T hr oug h the lense o f California’s anti-SL APP statute, w e review d e novo Manz ari’s defamation claim. See Makaef f v

. Trump Univ., LLC , 715 F .3d 254, 261 (9th Cir. 2013).

I. A N T I -SLAP P

California’s anti-SL APP statute provides a burdenshifting mechanism to weed out “lawsuits tha t ‘ masquerade

as ordinary l a

wsuits’ but a

re broug ht to deter common citiz ens from e x ercising their political or leg al rig hts o r to punish them for d o i n g so.” Batzel v. Smith

, 333 F .3d 1018, 1024 ( 9th Cir. 2003) (quoting W ilcox v

. Superior Court
, 27 Cal. App. 4th 809, 816 (1994)). I n Makaeff

, we ex p lained:

To prevail on an anti-SL A P P motion, the

m o ving defendant must make a prima f a c i e showing that the plaintiff’s suit arises f rom anM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 10

a ct in furtherance of the defendant' s constitutional rig ht t o f

r ee speech.

. . . The burden then shifts to the plaintiff,

. . . to establish a reasonable probab i lity that it will prevail on its claim in order for that claim to survive dismissal. Cal. Civ. Proc. Code § 425.16(b)(1);

. . . . Under this standard, th e claim should b e d ismissed if the plaintiff presents an insufficient leg al basis for it, or if,

on the basis of the facts shown by the plaintiff, “ n o reasonable jury could find for the plaintiff.” Metabolife Int’l, I nc. v

. W o r n i ck

, 264 F .3d 832, 840 (9th Cir. 2001 ) (citation and internal quotation marks omitted).

715 F .3d at 261 (first citation omitted).

Having published an article on a topic of public interest (i.e. the public health aspects and safety of a larg e California industry ), the Daily Mail easily satisfied it s i n itial burden. There is no serious dispute that the libel and false lig ht suit targ e ted speech protected by the an t i

- S L A PP statute. Cal. Civ. Proc. Code § 425.16(e)(3) (including “any written or oral
statement or writ i n g made in a p lace o pen to the public or a public forum in connection with an issue of public interest”).

Th e burden thus shifts to Manz ari to show a reasonable probability o f p r evailing on the merits. 1 “Reasonable

1 B ecau se Man zari’ s lib el an d f alse lig h t claim s rely o n th e s am e set of f acts an d req u ire h er t o p r o v e t h e sam e elem en ts relev an t to th is ap p eal,

w e co n sid er th e tw o claim s co llectiv ely

. S e e S o l a n o v. Pla

yg irl, In c. ,M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 11

probabi lity in the anti-SL APP statute has a specializ ed meaning

. The statute requires only a minimum level o f leg al sufficiency and triability

. I ndeed, the second step of the antiSL APP inquiry is often called the minimal merit prong

. ” Mindys Cosmetics, Inc. v. Dakar

, 611 F .3d 590, 598 (9th Cir. 2010) (internal quotation marks and citations omitte d )

. See Metabolife Int’l, Inc.
, 2 6 4 F

. 3d at 8 40 (“[ A] defendant’s antiSL APP motion should b e g ranted when a plaintiff presents an insufficient leg al basis f

or the claims or ‘when no evidence o f sufficient substanti a lity ex ists to support a judg ment for the plaintiff.’” (citations omitted)).

California c ourts have repeatedly emphasiz ed that “[ o ] nly

a cause of action that lacks even minimal merit constitutes a SL APP.” Overstock.com, Inc. v. Gr a d i ent Analytics, Inc.
, 6 1 Cal. Rptr. 3d 29, 38 (Ct. App. 2007) (internal q u o t a t i o n marks and citations omitted). “ A plaintiff is not required ‘ to
prove the specified cl a i m to the trial court’; rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a leg ally sufficient claim.” Mann v

. Quality Old T i m e S erv., Inc.
, 15 Cal. Rptr. 3d 2 15, 223 (Ct. App. 2004) (citations omitted) (emphasis in orig inal). To determine whether a plaintiff has substantiated a leg ally sufficient claim, courts look to the pleading s and a ffidavits p resented by both parties, but courts “do not weigh c r edibility

, n or do [ they ] evaluate the w eig ht of the evidence. I

n stead, [ courts] accept as true all evidence favorable to the p laintiff a n d assess the d efendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.” Overstock.com , 61 Cal. Rptr. 3d at 38.

2 9 2 F.3 d 1 0 7 8
, 1 0 8 3 n .2 (9 th Cir. 2 0 0 2 ) (treatin g Calif o rn ia lib el an d f

alse lig h t claim s as su

b stan tially

eq u iv alen t).M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 12

II. P U B L I C F I G U R

E

The threshold question tha t f rames our defamation analy sis is a leg a l one. W h e t h e r an individual is a public fig ure is a question of l aw that must be assessed throug h a totality of the circumstances. See Reader’s Digest A s s ’ n v

. Superior Court
, 690 P.2d 6 1 0
, 6 1 4–15 (Cal. 1984). As the Supreme Court a

rticulated i n Gertz v

. Robert W elch, Inc.
, “[ i] n some instances a n individual may achieve such pervasive f

ame or notoriety that he becomes a public f ig ure for a ll p urpose s a n d i n all contex ts. More commonly

, an individual voluntarily injects h i m s e lf or is drawn into a particular p ublic controversy and thereby becomes a public fig ure for a limited rang e of iss u e s .” 418 U.S. 323, 351 (1974). Even b efor e the Supreme Court’s public f ig ure analy sis, we observed that pub l i c fig ures for defamation
purposes include, “artists, athle t e s, business people, dilettantes, any one who is famous or i n f amous b ecause o f who h e is or what he has d o ne.” Cepeda v

. Cowles Magazines & Broad., Inc.
, 392 F

. 2d 417, 419 (9th Cir. 1968).

I n earlier cases we have attributed public fig ure status to individuals of comparable (or even less) fame than Manz ari. See Solano

, 292 F .3d at 1 08 1 ( t e l e vision actor on a popular show was a public fig

ure); Leidholdt v. L.F.P. Inc
, 860 F .2d 890, 8 93 (9th Cir. 1988) (leader in the anti-pornog raphy movement, who had p a

r ticipa t ed in numerous news article and public debates on the topic of p ornog raphy

, w as a public fig ure); Carafano v. Metrospl a s h .com Inc
., 207 F

. Supp. 2d 1055, 1071–72 (C .D. Cal. 2002) aff’d on other grounds

, 339 F .3d 1 1 19 (9th C i r

. 2003) (television a ctress with a popular fan website was a g eneral purpose public fig ure).M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 13

Manz ari’s celebrity in the porn world mig ht mean that she is less of a h ousehold name than stars in other sectors of the entertainment industry , but that does not make her fame any less pervasive. The Daily M a i l presented ex tensive support for its position that Man z a r i is a public fig u re, including interviews with Manz ari (in her persona as “Danni Ashe”) and news coverag e r elated to h er considerable succes s performing in and marketing o n l i n e soft-core porn. Among
many other new sources reporting on Manz ari’s business a nd
career, The Boston G lobe c alled Danni Ashe a poster g irl for the flourishing online p ornog r a p h y industry

, The Observer call e d h er “the first c y

berporn millionairess,” and The San Francisco Chronicle noted that by 1999 Danni’s Hard Drive had more than 27,000 pay ing subsc r i b e rs. I n an interview Manz ari g ave to the W

all Street Journal

, she stated that her website was orig inally created a s an ex ten s ion of her “fan club” and, as she told A B CNews.com
, “[ p ] eople are interested in adult entertainment. They alway s have and they alway s will be.”

The complaint itself states that Danni Ashe is considered “the most downloaded woman o n the I nternet” and that her imag e has “g raced the cover o f t h e W all Street J o u rnal.” I n the late 1 990s, Manz a

r i comp e t e d ag ainst actress Cindy Marg olis to win the Guinnes s W o r l d Record for most downloaded woman on th e I n t e rnet a nd, according to both ABC News and a press r elease f rom her own website, Manz ari attained t h e r e c ord with 841, 271, 545 downloads. I n an independent study conducted in 2000, Manz ari was found to have the most popular site run by and featuring women on the W e b

, far surpassing the amount of I nternet traffic for websites of such ubiquitous celebrities as Martha Stewart a nd Oprah W infrey

. She has starred in doz e n s of adult films, and, in addi t i o n to g iving numerous interviews, Manz ari alsoM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 14

testified before Con g r e s s during the p a ssag e of the Child Online Protection Act i n 2 0 00. With millions of I nternet d o wnloads, e x tensive p ublicity

, and broad public ex p osu r e, Manz ari undoubtedly

qualifies as a public fig

ure.

III. R

E A S O N A B L E P R O B A B I L I T Y O F P R E V A I L I N G O N T H

E M E R I T S

To prevail, Manz ari will eventually need to present clear and convincing evidence that the Daily Mail article contained

a defam at ory implication a nd that the Daily Mail acted with

“ a c t u al malice” when it published the article with h e r photo g r a p h

. See Kaelin v. G lobe Comm. Corp.
, 162 F .3d 1036, 1039 ( 9th Cir. 1 998) (“A public fig ure in a defamation

case cannot recover unless he p roves by clear a nd convincing evidence that the d efendant pu b l i s hed the defamatory
statement with actual malice, i.e., with k n owledg e that it was false or w ith reckless disreg ard of whether i t w as f alse o r not.” (internal quotation marks and citat i ons omitted). 2 However, at the anti-SL A PP stag e, “[ a] public fig ure w ho

sues f o r defamation must establish a p robability that he o r she

can produce such clear a nd convi n c ing evidence.” Overstock.com

, 61 Cal. Rptr. 3d at 38 (emphasis added); see also Burrill v. Nair
, 158 Cal. Rpt r

. 3 d 332, 357 (Ct. App. 20 1 3 ) (“[ W ] e must determine [ at the anti-SL APP stag e] whether [the Plaintiff] has made a sufficient p r i ma facie showing of f

acts to sustain her burden of demonstrating a hig h p robability that [ the Defendant] p u b l ished the defamatory st a tements w ith knowledg e of their falsity o r while entertaining

serious doubts as to their truth.”).

2 It is u n co n tested th at Man zari w as n o t th e actu al su b j ect o f th e article

an d th e Daily

Mail h as n o t p resen ted tru th as a d ef en se.M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 15

At this juncture in the proceeding s, Manz ari i s not required to “to p rove t h e specified claim,” Mann
, 15 Cal. Rptr. 3d a t 223 (internal quotation marks omitted). She need only convince us that her claim has “ minimal merit,” a nd she h as d one so. Overstock.com

, 61 Cal. Rptr. 3 d at 38. W e ag ree that Manz ari has pr e s e n ted sufficient e vidence—both

as t o the article’s defamatory implication and the D aily Mail’s actual malice—to survive the anti-SL APP motion to strike.

A. D E F A M

A T O R Y I M P L I C A T I O N

The Daily Ma i l d i d not a ffirmatively state that Manz ari

was the performer w i t h HI V
, b ut the implication and the conclus i o n we re neither subtle nor difficult to d ivine. The bold h e adline and its content, jux taposed with her photog raph and y et another c a

p tion under he r picture that said the industry was “shocked” that a “perfor m e r had tested HI V positive,” was sufficient for a reasonable reader to infer that Manz ari was the performer who had tested positive for HI V

.

California law recog niz es that a defamatory statement can be either “ex

pressly stated or implied.” Forsher v. Bugliosi

, 608 P.2d 716, 721 (Cal. 1980) (internal quotation marks a nd citations omitted). Thus:

“I f the defendant jux t aposes a series of facts

so as to imply a defamat o ry connection between them, or othe r wise creates a defamatory implication, he m a y be held responsible for the de f

a matory implication,

even thoug h the partic u l ar facts are correct.” W eller v. Am. Broad. Co.
, 283 Cal. Rptr. 644, 652 n .10 (Ct. App. 1 9 91) (quoting Prosser,M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 16

The L aw of Torts § 116 ( 5 th e d

. Supp. 1988)) (internal alterations omitted). To state a claim for implied defamat i o n , h o w e v e r , the published statement must r eas o nably “be

u n d e r s t o o d a s i m p l yi n g t h e a l l e g e d defamatory content.” I

d . at 651 n.8.

Price v. Stossel , 620 F .3d 992, 1003 (9th Cir. 2010).

O f c o urse we “must ex amine the totality of t h e circumstances of the p ublication.” Kaelin

, 162 F .3d at 1041. “[ A] defamatory meaning must be found, if at all, in a r eading of the p ublication as a whole.” Id

. at 1040. The D aily Mail
sug g ests this case is d ifferent from the classic d efamation b y implication case because it did not make any statement b y including a stock photog ra p h s el ected as a “g ood, nonobscene photog raph to illustrate the arti c l e. ” This dising enuous approach overlooks the fact t h a t a photog raph itself c an c onvey both an implicit and an ex plicit messag e a nd that the headline, caption and p hotog raph t aken tog e ther a re also a statement. As the Supreme Court o bserved in a similar
contex t, “words a

nd punctuation ex p ress meaning

. Meaning is the life of lang uag e.” Masson v. New Y o r k e r Magazine, Inc.
, 501 U.S. 496, 5 1 7 (1991); see a l s o i d

. at 521 (concluding that misquotations of a p u blic fig ure, imply ing he had stated thing s he d i d n o t s ay , raised a triable jury question). L ikewi s e , a v i sual depiction can be the life o f

ex p ression.

Considering the a

r ticle as a whole, we conclude that a reasonable reader could infer that the article is about Manz ari. The headline beg ins “ Porn industry shuts down a fter ‘female performer’ tests positive for H I V,” which is followed by just four sentences before her photog raph. T he picture inclu d e sM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 17

her professional name “Danni” in neon lig hts behind h er a nd the bold c ap t i o n b e low h er reads “Moratorium: The porn industry in California was shocked on W ednesday by the
announcement that a pe rformer h ad tested HI V positive.” The vag ue references to the u nidentified “female performer” do not clarify that the article is not abou t M a n z ari, particularly g iven the siz e and placement of the photog raphs and tex t.

The clarity of the implication is all the more a ppar e n t g iven how news spreads across the I nternet. As Daily Mail O n l i n e

— a l e a d e r a n d p r o f e s s i o n a l i n o n l i n e publishing —would no doubt be aware, links to news articles frequentl y appear in online search eng ines or other compilations with only a headline and photog raph connected
to that story

. Publication of the f irst story was just a platform for inevitable further online dissemination. Manz ari introduced multiple screen-shots from the I nternet revealing how the article appeared in a number of s e a rch eng ines a nd other on-line news platforms. These i m a ge s spread rapidly

a c r oss the Web once the D aily Mail O nline published t h e article, and, i n e x a mple a fter ex ample, the posting is truncated with the headline followed directly by the “ Danni” photog raph, sometimes including a caption, but without the
rest of the article to provide any further contex t for the imag e

.

The Daily Mail contends that the tex t of the article—specifically its assertion that the performer in question was new to the ind u s t r y a nd had n ot been identified—is log ically inconsistent with the infere n ce that the actress in question was Manz ari. I t underscores that the

ex p lanatory tex t appears o n the same pag e as the headline a nd the photog raph of Manz ari

, s uch that a reasonable reader would r e a liz e that she was not the woman who had testedM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 18

p o s i tive for H I V. I n this reg ard, the Kaelin case i s instructive. T here we h e ld that: “ headlines are not irrelevant,

ex traneous, or liability -free z ones[
, t] hey are essential el e m e n ts of a publication,” and that false insinuations in a headline on the cover pag e were n ot cured o r neg ated b y

ex p lanatory lang uag e later in the mag az ine b ecause “[ a] reasonable juror could conclude that the Kaelin article was too far removed from the cover headline to have the salutary effect that Globe claims.” 1 6 2 F.3d at 1040–41; see also Davis v

. Hearst
, 160 Cal. 143, 187 (1911) (holdi n g that an article’s ex planatory tex t did not neg ate the defamatory nature of the headline).

The same is true here. A p assing reference buried in the article can hardly cure the obvious messag e c onvey ed by the headline, photo and caption. Manz a r i has presented sufficient evidence to carry her burden o f showing a reasonable probability of success on the merits r eg a rding the first prong of her defamation claim.

B. A C T U A L M A L I C E

The Supreme Court has provided a framework thro u g h

w h i c h we assess whether a public fig ure can move forwa r d with a defamation claim. I n M asson , the Court ex plained that “actual malice” presents a question of fac t : “ T he constitutional question we must consider here is whether, in the framework of a summary judg ment motion, the evidence suffices to show that respondents a cted with the requisite knowledg e of falsity o r reckless disreg ard as to t r uth o r falsity .” 501 U.S. at 513. The Court conclude d that “[ t] he record contains substantial

. . . evidence,

. . . which, in a lig ht
most favorable to p etitioner, would support a j u r y determination under a clear and convincing standard that [ theM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 19

author a c ted] deliberately or recklessly .” Id. at 521. Althoug h the author “contests p etitioner’s alleg ati o n s , . . . only a trial on the merits will resolve the factual dispute. . . . [ A] t this stag e, the evidence creates a jury question whether [ the author] published the s tatements with knowledg e o r reckless disreg ard of the alterations.” Id

.

I n impli e d defamation cases, “where a statement

. . . reasonably implies false and defamatory facts r eg arding public fig ures or officials, those individuals must show t hat

su c h s tatements were made with knowledg e o f their false implications or wi t h reckless disreg ard o f their truth.” Milkovich v

. Lorain Journal Co.
, 497 U.S. 1, 2 0 (1990). “[ R] eckless conduct is not measured by w hether a reasonably prudent m a n would have published, or would have investig ated before p ublishing

. Th e r e must be sufficient

e v i d ence to permit the conclusion that the defendant in f a ct entertained serious doubts a s to the truth of his publication.” Time, I nc. v. Pape
, 401 U .S. 279, 2 91–92 (1971)

. This standard ensures that p ublishers are not h e l d liable for unintentional misstatements o r implicati o n s, which public fig ures later c laim are defamator y

. S e e Howard v. A n tilla

, 294 F .3d 244, 252 (1st Cir. 2002) (“[ I ]mplications p erceived in a statement but not intended b y the speaker cannot b e actionable in public official o r public fig u re c ases.”) (quoting Robert D. Sack, Libel, Slander, and Related Problems § 5.5.1, at 5–64 (3d ed. 1999)). 3

3 Ou r sister circu its h av e also ad o p ted a stan d ard o f su b j ectiv e aw aren ess

o f th e im plicatio n

. See Co mp u w a re Co rp

. v. M o o d y’s In v’rs S

ervs., In c. , 4 9 9 F .3 d 5 2 0
, 5 2 9 (6 th Cir. 2 0 0 7 ) (d ef en d an t m u st h av e in ten d ed o r k

n ew

o f th e im p lied m ean in g ); Leva n v. C a pita l C ities/ABC, In c. , 1 9 0 F.3 d 1 2 3 0
, 1 2 4 1 (1 1 th C ir. 19 9 9 ) ( t o sh o w actu al m alice in an im p lied d ef am atio n case, th e p lain tif f m u st sh o w th at th e d ef

en dan t “ en tertain ed serio u s d o u

b ts” th at th e “ u n d erly in g th ru st ” of th e pu b l icatio n w as tru eM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 20

Defamation by implication ag a i n s t public fig ures is an

area o f law “ f

r a u g ht with subtle complex ities.” W hite

, 909 F .2d at 518. W e h av e n o t alway s charted a c lear p ath

w h en apply ing the actual malice test to implied defama t o r y content. Compare Hoffman v. Capital Cities/ABC, Inc.
, 255 F .3d 1180, 1187 (9th Cir. 2001) (“evidence must clearly and convincing ly demonstrate that [ the publisher] k n e w (or purposefully avoided knowing ) that the pho t og raph would mislead its readers”), with Newton v. Nat’l B ro ad. Co.
, 930 F .2d 662, 680–81 ( 9th Cir. 1 990) (holding that failure to foresee the p ossible implications of a statement does not g ive ri s e t o liability a g ainst a public f ig ure, rather the relevant inquiry is one o f subjective intent) and

, Dodds v. Am. Broad. Co.
, 145 F .3d 1053, 1063–64 (9th C i r

. 1998) (“I n order to prevail on his claim that AB C’s direct statements impl i e dly defamed h im

. . . [ the plaintiff] must sho w

. . . t hat AB C intended to convey the defamatory im pression.” (internal quotation marks and citations omitted)). Althoug h our cases have refere n c e d actual malice with some variation in lang uag e, at its core our precedent mirrors the S u preme Court’s requirements: knowledg e o f falsity or reckless disreg ard for the truth.

(in t ern al q u o tatio n m ark s o m itted )); W hite v. Fra tern a l Ord

er o f Po lice

, 9 0 9 F.2 d 5 1 2 , 5 20 (D.C. Cir. 1 9 9 0) (d ef am atio n b y im p licatio n p o ssib le

w h ere “ th e co m

m u n icatio n , b y th e particu lar m an n er o r lan g u ag e in w h ich th e tru e f acts are co n v ey ed

, s up p l i e s ad d itio n al, af f irm ativ e ev id en ce

s u g g estin g th at th e d ef en dan t i n ten ds o r en d

o rses th e d ef

am at o r y in f eren ce”); S

a en z v. Pla

yb oy En ter., In c. , 8 4 1 F.2 d 1 3 0 9
, 1 3 18 (7 th Cir. 1 9 8 8 ) (“ [W ]h ere t

h e p lain tif

f i s claim in g d ef

am atio n by in n

u en d o , h e also

m u st sh o w w i th clear an d co nv i n c i n g ev id en ce t h at th e def

en d an ts in ten d ed o r k

n ew o f t h e im

p licatio n s th at th e p lain tif f is attem p tin g to d raw f ro m th e alleg ed ly

d ef am ato ry m aterial.”).M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 21

This case rests on the “reckless disreg ard” prong of actual malice. Recog niz ing that California l a w requires only “minimal merit” to withstand initial dismissal under the antiSL APP statute, we h old t h at Manz ari has raised sufficient f a ctual q uestions for a jury to conclude that the Daily M a i l Online acted with reckless disre ga rd for the defamatory implication in its a r ticle on the L os A ng eles porn industry shut-down. Manz a r i ’ s evidence is sufficient to support her claim that the Daily Mail Online placed her photog raph in the article, jux taposed with the incendiary headline and caption, “[ knowing o r acting ] in reckle ss d isreg ard of whether its words would be interpreted by the averag e reader a s a false
statement of f

a c t.” Solano

, 2 92 F .3d at 1084 (internal citations, alterations, and quotation marks omitted).

The undisputed m es sag e that the a rticle is about Manz ari—apparent f

rom the headline, photog raph, and caption—supports the conclusion that the Daily Mail Online acted with reckless disreg a rd. Thoug h it is no t enoug h that the defamatory implication “should have b een foreseen” b y the Daily Mail when it jux taposed the different elements o f the article, see Newton
, 930 F .2d a t 680, or that an “ordinary vie w e r would have perceived the implication,” Dodds

, 1 4 5 F .3d at 1064, here there is evidence that Daily Ma i l employ e es actively removed key contex tual information from the “Danni Ashe” photog raph as it was pres e n t e d in the Corbis database, which stated: “Soft p orn actress Danni Ashe, fo u n d e r of D anni.com, poses in f ront of a video camera connected to the I nternet in o n e of her studios in L os Ang eles in 2000.” I nstead, they replaced this information with the caption: “Moratorium: The porn industry in California was shocked on W ednesday b y the announc e m e nt that a performer had tested H I V p ositive.” The publishers also failed to include a

ny ex planation or disclaimer adjacent to theM A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 22

“Danni” photog raph, which would h ave informed readers tha t she was not the subject of the artic l e. See E a stwood

, 123 F .3d at 1253, 1256 (observi n g that “[ a] s we have y et to

see a defendant who admits to e n tertaining serious subjective doubt about the authentic i t y of an article it published, we must be g uided by c ircumstantial evidence,” and concluding that the “totality of the [ editors’] choices” supported a finding of actual malice).

I t is no surprise that the Da i l y Mail e mploy e es deny that they understood or intended to m a k e any implication about Manz ari. W hile a f

inding that the publisher’s testimony lacks credibility cannot on its own sustain a finding of subjective intent, New t o n , 9 3 0 F.2d at 680, the denial must b e read in the contex t of other evidence. I f all a publisher needed to do

was to deny the alleg ation, all implied defamation suits would be dead on arrival. I f

, for instance, a n e w s p aper ran the headline: “Hig h Profi le F ig ure Accused o f Murder” along side a photog r a

p h of the May or of New York, o r “I ndustry Shocked that G rocery Spray ed Veg g ies with Pesticide” along side an imag e o f a nationally -known g rocery chain, the publishers w ould be h ard-pressed to p l ausibly claim that they h ad simply selected a “sto c k ” p hotog raph. The same holds true for a story about the p orn o g raphy industry

, featuring a picture of a world-famous pornog raphic
actress with her name written in neon lig h ts behind h er. 4 This
sort of willful blindness c a nno t i m muniz e p u

blishers where they a ct with reckless disreg ard for the truth or falsity of the implication they are making

. Manz ari meets the “minimal merit” threshold to avoid outrig ht dismissal of her complaint.

4 On e n eed on ly lo o k t o th e Daily Mail’ s o w n ev id en ce o f Ma n z a r i’ s p u b lic f ig u re statu s to co n f

irm t h e u biq u ity o f h er im ag e an d h er id en tity

. Her im ag e can h ard l y

b e releg ated to th e statu s o f a “ sto ck ” p h o to g rap h

.M A N Z A R I V

. A S S O C I A T E D N E W S P A P E R S 23

C O N C L U S I O N

At the a nti-SL APP stag e, Manz ari has carried her burden of “stat[ ing ] and substantiat[ ing ] a leg ally suffi c i ent claim.” Mann
, 15 Cal. Rptr. 3d at 2 23. The district court properly denied the Daily Mail’s m otion to strike Manz ari’s complaint.

A F F I R M E D

.