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New York appeals court confirms Dr Luke is not a “public figure” in Kesha defamation case
By Chris Cooke | Published on Friday 23 April 2021
An appeals court in New York has upheld a summary judgement that favoured Dr Luke in his ongoing defamation legal battle with Kesha. In particular, judges confirmed that Luke – despite being a very successful and well known record producer and label owner – is not a “public figure”, which has a significant impact on cases of this kind.
This defamation action is all that remains of a long-running, multi-layered and quite complicated legal battle between Luke and Kesha. That entire legal battle centred on Kesha’s allegation of rape against her long-time producer and collaborator. He denies that allegation, and alleges that she only made that claim in a bid to force his hand in contract negotiations. Hence the claim of defamation and the one lawsuit in this legal battle that is still going through the motions.
In February 2020 the judge overseeing the case considered requests from both sides for summary judgements. Although not ruling on the central rape allegation, which the judge said must go before a jury, a summary judgement was made on some of the side issues, all in Luke’s favour.
That judgement included the decision that Luke is not a public figure. This is important because under the relevant laws in this case, a public figure must prove that a person accused of defamation showed actual malice when they made their damaging untrue statement, whereas a private figure only needs to prove negligence. That’s a lower burden of proof that would make it easier for Luke to win his case.
Kesha’s side appealed that ruling. But the majority opinion in the appeals court backed up the decision made in the lower court. There are actually two categories of public figure to consider here: a general-purpose public figure who is generally considered to be famous, and a limited-purpose public figure who – although not technically famous – has prominence in a particular field relevant to the case, or who voluntarily got involved in a controversy that is relevant to the case.
The appeal judges concluded that Luke is not a “household name” and therefore not a general-purpose public figure.
To be considered a “limited-purpose public figure”, they then state stated, Luke “must have: (1) successfully invited public attention to his views in an effort to influence others prior to the incident in question, (2) voluntarily injected himself into a public controversy related to the subject of the current litigation, (3) assumed a position of prominence in the public controversy, and (4) maintained a regular and continuing access to the media to influence the outcome of the public controversy”.
However, Luke “cannot be found to be a limited-purpose public figure because he has not done any of these things. Although [the producer] has sought publicity for his label, his music and his artists – none of which are subject of the defamation here – he never injected himself into the public debate about sexual assault or abuse of artists in the entertainment industry. [He] has only spoken out once regarding this litigation, on Twitter in 2016, and has limited his involvement to what was necessary to defend himself”.
The decision is a setback for the Kesha side in the ongoing defamation action, but also a cause for concern with the US news industry. A number of news organisations filed a so called amicus brief in support of Kesha’s arguments regarding Luke’s public figure status, concerned about the precedent being set here on future defamation proceedings.
It’s worth noting that there was a dissenting minority opinion in the appeals court, with judge Saliann Scarpulla reckoning that Luke actually qualifies for both general-purpose and limited-purpose public figure status.
“The majority acknowledges that Dr Luke is an acclaimed music producer but posits that he is not a general-purpose public figure because he is not a ‘household name'”, Scarpulla wrote. “Dr Luke, however, has achieved a level of fame and notoriety sufficient to be considered a general-purpose public figure. He is a household name to those that matter. For this reason, he should be considered a general-purpose public figure in connection with analysing the alleged defamatory statements at issue”.
Even if you disagree, Scarpulla added, there is a case for making Luke a limited-purpose public figure too. “Dr Luke argues, and the majority accepts, that Dr Luke is not a limited-purpose public figure because he never sought out publicity or spoke publicity about Kesha’s allegations of sexual assault or on the issue of sexual assault”, she stated.
“That Dr Luke has not spoken publicly about Kesha’s allegations of sexual assault is not surprising, is not relevant, and does not preclude a finding that he is a limited-purpose public figure. The definition of [a] limited-purpose public figure is not so cramped as to only include individuals and entities that purposefully speak about the specific, narrow topic (in this case a protege’s sexual assault) upon which the defamation claim is based”.
“The public controversy at issue here is a self-promoting, powerful music industry person’s use of his financial leverage over a person whose career he controls to allegedly commit an unpunished sexual assault. Dr Luke is a limited purpose public figure because he has purposefully and continuously publicised and promoted his business relationships with young, female music artists, like Kesha, to continue to attract publicity for himself and new talent for his label”.
She concluded: “The allegedly defamatory statements at issue – that Dr Luke drugged and sexually assaulted Kesha when she was a teenage artist, who was signed to an exclusive contract with his record label – directly relate to Dr Luke’s self-publicised professional and personal relationships with his clients, his integrity in business practices, and in attracting new talent”.
Although this ruling is another setback for the Kesha side, her lawyers have already employed another possible tactic that could still require the Luke side to have to show actual malice to hold her liable for defamation.
That involves employing new anti-SLAPP laws recently introduced in New York state. Such laws seek to stop parties from using litigation of one kind or another to primarily silence the defendants in those lawsuits, a practice that can breach free speech rights under the First Amendment of the US constitution.
Under the new anti-SLAPP laws, the requirement to prove actual malice in a defamation case can actually be applied to a non-public figure if the allegedly defamatory statement relates to issues of public concern.
It remains to be seen if Kesha’s lawyers can successfully use those new laws to increase the burden of proof faced by Luke when this long-running litigation finally gets before a jury later this year.
